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CASE NO.:

Appeal (crl.) 688-90 of 1993

PETITIONER:

KANS RAJ

Vs.

RESPONDENT:

STATE OF PUNJAB & ORS.

DATE OF JUDGMENT: 26/04/2000

BENCH:

G.B. Pattanaik, R.P. Sethi, & Shivaraj V. Patil.

JUDGMENT:

SETHI,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Sunita Kumari married on 9th July, 1985 was found dead

on 23rd October, 1988 at the residence of her in-laws at

Batala in Punjab. The death was found to have occurred not

under the ordinary circumstances but was the result of the

asphyxia. On post-mortem it was found that the deceased had

injuries on her person including the ligature mark 20 cm x 2

cm on the front, right and left side of neck, reddish brown

in colour starting from left side of neck, 2 cm below the

left angle of jaw passing just above the thyroid cartil-age

and going upto a point 2 cm below the right angle of jaw.

The parents of the deceased were allegedly not informed

about her death. It was a shocking occasion for Ram Kishan,

PW5 when he came to deliver some customary presents to her

sister on the occasion of Karva Chauth, a fast observed by

married women for the safety and long life of their

husbands, when he found the dead body of his sister Sunita

lying at the entrance room and the respondents were making

preparations for her cremation. Noticing ligature marks on

the neck of her sister, Ram Kishan PW5 telephonically

informed his parents about the death and himself went to the

police station to lodge a report Exh.PF. On the basis of

the statement of PW5 a case under Section 306 IPC was

registered against the respondents. After investigation the

prosecution presented the charge-sheet against Rakesh Kumar,

husband of the deceased and Ram Piari, the mother-in-law of

the deceased. Ramesh Kumar, brother-in-law and Bharti,

sister-in-law of the deceased were originally shown in

Column No.2 of the report under Section 173 of the Code of

Criminal Procedure. After recording some evidence, Ramesh

Kumar and Bharti were also summoned as accused. The

appellant, the father of the deceased, filed a separate

complaint under Section 302 and 304B of the Indian Penal

Code against all the respondents. The criminal case filed

by the appellant was also committed to the Sessions Court

and both the appellant's complaint and the police case were

heard and decided together by the Additional Sessions Judge,

Gurdaspur who, vide his judgment dated 28th August, 1990,

convicted the respondents under Section 304B IPC and

sentenced each of them to undergo 10 year Rigorous

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Imprisonment. He also found them guilty for the commission

of offence under Section 306 and sentenced them to undergo

rigorous imprisonment for 7 years besides paying a fine of

Rs.250/- each. The respondents were also found guilty for

the commission of offence punishable under Section 498A IPC

and were sentenced to undergo rigorous imprisonment for a

period of two years and to pay a fine of Rs.250/- each. All

these sentences were to run concurrently. The respondents

herein filed an appeal in the High Court against the

judgment of conviction and sentence passed against them by

the Trial Court and the appellant, father of the deceased,

filed a revision petition against the said judgment praying

for enhancement of the sentence to imprisonment for life on

proof of the charge under Section 304B of the IPC. Both the

appeals and the revision were heard together by a learned

Single Judge of the High Court who vide her judgment

impugned in this appeal acquitted the respondents of all the

charges. The revision petition filed by the father of the

deceased was dismissed holding that the same had no merits.

Ms.Anita Pandey, learned Advocate appearing for the

appellant has vehemently argued that the judgment of the

High Court suffers from legal infirmities which requires to

be set aside and the respondents are liable to be convicted

and sentenced for the commission of heinous offence of dowry

death, a social evil allegedly commonly prevalent in the

society. She has contended that the judgment of the High

Court is based upon conjectures and hypothesis which are

devoid of any legal sanction. The High Court is alleged to

have not properly appreciated the evidence led by the

prosecution in the case which, according to the learned

counsel, had proved beyond doubt that the respondents were

guilty of the commission of the offences with which they

were charged and convicted by the Trial Court. Relying upon

the provisions of Section 113B of the Evidence Act, the

learned counsel has contended that as the death of Ms.Sunita

Kumari had occurred within 7 years of marriage and the

prosecution had established her harassment on account of

demand of dowry, a legal presumption was to be drawn against

the respondents for holding them guilty and sentencing them

for the offences committed. Supporting the case of the

respondents Shri U.R. Lalit, Senior Advocate appearing for@@

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them has submitted that there being no direct evidence@@

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regarding the cause of the death or circumstances leading to

death, particularly in the absence of demand of dowry soon

before the death, none of the respondents could be held

guilty for the offences with which they were charged,

convicted and sentenced by the Trial Court. According to

the learned counsel the statements made by the deceased

before her death were not admissible in evidence even under

Section 32(1) of the Evidence Act and in the absence of

demand of dowry immediately before the alleged occurrence no

inference or presumption could be drawn against the

respondents.

We have heard the learned counsel for the parties at

length and perused the record. We have also minutely

examined the original record of the Trial Court and

critically analysed the statements of the witnesses produced

by the prosecution.

We agree with the learned counsel for the respondents 3

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to 5 that his clients, namely, Ramesh Kumar, brother of the

husband, Ram Pyari, mother of the husband and Bharti

sister-in-law of the husband-accused cannot be alleged to be

involved in the commission of the crime and were rightly

acquitted by the High Court. There is no evidence produced

by the appellant worth the name against the aforesaid

respondents. Even PW Nos.5 and 6 have not brought on record

any incriminating circumstance attributable to the aforesaid

accused which could be made the basis for their conviction.

Ram Kishan, PW5 in his deposition before the Court had

stated that "after the marriage Rakesh Kumar, accused raised

a demand of Rs.15,000/- for a scooter and refrigerator. We

fulfilled that demand by giving Rs.20,000/- to him for

scooter and refrigerator..... Rakesh Kumar used to threaten

Sunita that she would be done to death because of having

inadequate dowry. On 21st September, 1988 Sunita had come

to my younger brother Tarsem in connection with a ceremony

concerning his son. She also visited us as the house of

Tarsem Kumar is close to our house. She stayed with us for

the night. We gave her customary present i.e. clothes etc.

and cash amount of Rs.500/-. She apprehended danger to her

life in the house of her in-laws and was not willing to go

there". He has not referred to any demand of dowry or

harassment by the respondents except Rakesh Kumar. Tarsem

Kumar, the other brother of the deceased at whose residence

she had gone on 21st September, 1988 has not been produced

as a witness in the case. Kans Raj PW6, the father of the

deceased stated before the Trial Court that Sunit Kumari had

told him that she was being taunted by her mother-in-law Ram

Piari, accused Ramesh Chander and his wife Bharti accused

besides her husband Rakesh Kumar. The details of the

alleged taunting have not been spelt out. The only thing

stated is that the accused used to tell the deceased that

she being the daughter of BJP leader, who used to boast

about his financial position had brought inadequate dowry.

He further stated that various sums of money and the colour

TV was given to Rakesh Kumar on his demand. Amar Nath and

Janak Raj, President and General Secretary of Mahajan Sabha

respecively and one Kundan Lal Gaba were taken by him to the

residence of the accused persons. The deceased was alleged

to have been taunted again in presence of the aforesaid

witnesses. However, none of the aforesaid witnesses

supported the case of the prosecution. In the light of the

evidence in the case we find substance in the submission of

the learned counsel for the defence that respondents 3 to 5

were roped in the case only on the ground of being close

relations of respondent No.2, the husband of the deceased.

For the fault of the husband, the in-laws or the other

relations cannot, in all cases, be held to be involved in

the demand of dowry. In cases where such accusations are

made, the overt acts attributed to persons other than

husband are required to be proved beyond reasonable doubt.

By mere conjectures and implications such relations cannot

be held guilty for the offence relating to dowry deaths. A

tendency has, however, developed for roping in all relations

of the in-laws of the deceased wives in the matters of dowry

deaths which, if not discouraged, is likely to affect the

case of the prosecution even against the real culprits. In

their over enthusiasm and anxiety to seek conviction for

maximum people, the parents of the deceased have been found

to be making efforts for involving other relations which

ultimately weaken the case of the prosecution even against

the real accused as appears to have happened in the instant

case.

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We, however, find that there is reliable legal and

cogent evidence on record to connect Rakesh Kumar,

respondent No.2 with the commission of the crime. There is

evidence showing that immediately after his marriage with

the deceased the respondent-husband started harassing her

for the demand of dowry. We do not find substance in the

submission of the learned defence counsel that the

statements made before her death by the deceased were not

admissible in evidence under Section 32(1) of the Evidence

Act and even if such statements were admissible, there does

not allegedly exist any circumstance which could be shown to

prove that the deceased was subjected to cruelty or

harassment by her husband for or in connection with any

demand of dowry soon before her death. It is contended that

the words "soon before her death" appearing in Section 304B

has a relation of time between the demand or harassment and

the date of actual death. It is contended that the demand

and harassment must be proximately close for the purposes of

drawing inference against the accused persons.

The offence of "dowry death" was incorporated in the

Indian Penal Code and corresponding amendment made in the@@

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Evidence Act by way of insertion of Section 113B vide Act@@

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No.43 of 1986. In fact the Dowry Prohibition Act, 1961

being Act No.28 of 1961 was enacted on 20th May, 1961 with

an object to prohibit to giving or taking the dowry. The

insertion of Section 304B of the Indian Penal Code and

Section 113B in the Evidence Act besides other circumstances

was also referable to the 91st Report dated 10th August,

1983 of the Law Commission. In the Statement of Objects and

Reasons to Act No.28 of 1961 it was stated:

"The object of this Bill is to prohibit the evil

practice of giving and taking of dowry. This question has

been engaging the attention of the Government for some time

past, and one of the methods by which this problem, which is

essentially a social one, was sought to be tackled was by

the conferment of improved property rights on women by the

Hindu Succession Act, 1956. It is, however, felt that a law

which makes the practice punishable and at the same time

enures that any dowry, if given does enure for the benefit

of the wife will go a long way to educating public opinion

and to the eradication of this evil. There has also been a

persistent demand for such a law both in and outside

Parliament, Hence, the present Bill."

Realising the ever increasing and disturbing proportions

of the evil of dowry system, the Act was again amended by

Act No.63 of 1984 taking note of the observations of the

Committee on Status of Women in India and with a view to

making of thorough and compulsory investigations into cases

of dowry deaths and stepping up anti-dowry publicity, the

Government referred the whole matter for consideration by a

Joint Committee of both the Houses of Parliament. The

Committee went into the whole matter in great depth in its

proceedings and after noting the observations of

Pt.Jawaharlal Nehru, recommended to examine the working of

Act No.28 of 1961 and after considering the comments

received on the Report from the State Governments, Union

Territories, Administrations and different administrative

Ministries of the Union concerned with the matter, decided

to modify the original definition of "dowry" with

consequential amendment in the Act. Again finding that the

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Dowry Prohibition Act, 1961 has not been so deterrent, as it

was expected to be, the Parliament made amendments in the

Act vide Act No.43 of 1986. In the Statement of Objects and

Reasons of the said Act it was stated: "The Dowry

Prohibition Act, 1961 was recently amended by the Dowry

Prohibition (Amendment) Act 1984 to give effect to certain

recommendations of the Joint Committee of the House of

Parliament to examine the question of the working of the

Dowry Prohibition Act, 1961 and to make the provisions of

the Act more stringent and effective. Although the Dowry

Prohibition (Amendment) Act, 1984 was an improvement on the

existing legislation, opinions have been expressed by

representatives from women's voluntary organisations and

others to the effect that the amendments made are still

inadequate and the Act needs to be further amended.

2. It is, therefore, proposed to further amend the

Dowry Prohibition Act, 1961 to make provisions therein

further stringent and effective. The salient features of

the Bill are:

(a) The minimum punishment for taking or abetting the

taking of dowry under section 3 of the Act has been raised

to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for

dowry will be on the person who takes or abets the taking of

dowry.

(c) The statement made by the person aggrieved by the

offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical

journal or any other media by any person offering any share

in his property or any money in consideration of the

marriage of his son or daughter is proposed to be banned and

the person giving such advertisement and the printer or

publisher of such advertisement will be liable for

punishment with imprisonment of six months to five years or

with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made

non-bailable.

(f) Provisions has also been made for appointment of

Dowry Prohibition Officers by the State Governments for the

effective implementation of the Act. The Dowry Prohibition

Officers will be assisted by the Advisory Boards consisting

of not more than five social welfare workers (out of whom at

least two shall be women).

(g) A new offence of "dowry death" is proposed to be

included in the Indian Penal Code and the necessary

consequential amendments in the Code of Criminal Procedure,

1973 and in the Indian Evidence Act, 1872 have also been

proposed.

3. The Bill seeks to achieve the aforesaid objects."

The law as it exists now provides that where the death

of a woman is caused by any burns or bodily injury or occurs

otherwise than under normal circumstances within 7 years of

marriage and it is shown that soon before her death she was

subjected to cruelty or harassment by her husband or any

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relative for or in connection with any demand of dowry such

death shall be punishable under Section 304B. In order to

seek a conviction against a person for the offence of dowry

death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily

injury or had occurred otherwise than under normal

circumstances;

(b) such death should have occurred within 7 years of

her marriage;

(c) the deceased was subjected to cruelty or harassment

by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in

connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should

have been subjected to soon before her death. As and when

the aforesaid circumstances are established, a presumption

of dowry death shall be drawn against the accused under

Section 113B of the Evidence Act. It has to be kept in mind

that presumption under Section 113B is a presumption of law.

We do not agree with the submissions made by Mr.Lalit,

learned Senior Counsel for the accused that the statement

made by the deceased to her relations before her death were

not admissible in evidence on account of intervening period

between the date of making the statement and her death.

Section 32 of the Evidence Act is admittedly an

exception to the general rule of exclusion to the hearsay

evidence and the statements of a person, written or verbal,

of relevant facts, after his death are admissible in

evidence if they refer to the cause of his death or to any

circumstances of the transaction which resulted in his

death. To attract the provisions of Section 32, for the

purposes of admissibility of the statement of a deceased the

prosecution is required to prove that the statement was made

by a person who is dead or who cannot be found or whose

attendance cannot be procured without an amount of delay or

expense or he is incapable of giving evidence and that such

statement had been made under any of the circumstances

specified in sub-sections (1) to (8) of Section 32 of the

Act. Section 32 does not require that the statement sought

to be admitted in evidence should have been made in imminent

expectation of death. The words "as to any of the

circumstances of the transaction which resulted in his

death" appearing in Section 32 must have some proximate

relations to the actual occurrence. In other words the

statement of the deceased relating to the cause of death or

the circumstances of the transaction which resulted in his

death must be sufficiently or closely connected with the

actual transaction. To make such statement as substantive

evidence, the person or the agency relying upon it is under

a legal obligation to prove the making of such statement as

a fact. If it is in writing, the scribe must be produced in

the Court and if it is verbal, it should be proved by

examining the person who heard the deceased making the

statement. The phrase "circumstances of the transaction"

were considered and explained in Pakala Narayana Swami v.

Emperor [AIR 1939 PC 47]:

"The circumstances must be circumstances of the

transaction: general expressions indicating fear or

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suspicion whether of a particular individual or otherwise

and not directly related to the occasion of the death will

not be admissible. But statements made by the deceased that

he was proceeding to the spot where he was in fact killed,

or as to his reasons for so proceeding, or that he was going

to meet a particular persons, or that he had been invited by

such person to meet him would each of them be circumstances

of the transaction, and would be so whether the person was

unknown, or was not the person accused. Such a statement

might indeed be exculpatory of the person accused.

"Circumstances of the transaction" is a phrase no doubt that

conveys some limitations. It is not as broad as the

analogous use in "circumstantial evidence" which includes

evidence of all relevant facts. It is on the other hand

narrower than "res gestae". Circumstances must have some

proximate relation to the actual occurrence: though, as for

instance, in a case of prolonged poisoning they may be

related to dates at a considerable distance from the date of

the actual fatal dose. It will be observed that "the

circumstances" are of the transaction which resulted in the

death of the declarant. It is not necessary that there

should be a known transaction other than that the death of

the declarant has ultimately been caused, for the condition

of the admissibility of the evidence is that "the cause of

(the declarant's) death comes into question".

The death referred to in Section 32(1) of the Evidence

Act includes suicidal besides homicidal death. Fazal Ali,

J. in Sharad Birdhichand Sarda v. State of Maharashtra

[1984 (4) SCC 116] after referring to the decisions of this

Court in Hanumant v. State of Madhya Pradesh [1952 SCR

1091], Dharambir Singh vs. State of Punjab[Criminal Appeal

No.98 of 1958, decided on November 4, 1958], Ratan Gond v.

State of Bihar [1959 SCR 1336], Pakala Narayana Swami

(supra), Shiv Kumar v. State of Uttar Pradesh [Criminal

Appeal No.55 of 1966, decided on July 29, 1966], Mahnohar

Lal v. State of Punjab[1981 Cri.LJ 1373 (P&H)] and other

cases held:

"We fully agree with the above observations made by the

learned Judges. In Protima Dutta v. State [1977 (81) Cal

WN 713] while relying on Hanumant Case the Calcutta High

Court has clearly pointed out the nature and limits of the

doctrine of proximity and has observed that in some cases

where there is a sustained cruelty, the proximate may extend

even to a period of three years. In this connection, the

high Court observed thus:

The 'transaction' in this case is systematic ill-

treatment for years since the marriage of Sumana and

incitement to end her life. Circumstances of the

transaction include evidence of cruelty which produces a

state of mind favourable to suicide. Although that would

not by itself be sufficient unless there was evidence of

incitement to end her life it would be relevant as evidence.

This observation taken as a whole would, in my view,

imply that the time factor is not always a criterion in

determining whether the piece of evidence is properly

included within 'circumstances of transaction'...'In that

case the allegation was that there was sustained cruelty

extending over a period of three years interspersed with

exhortation to the victim to end her life'. His Lordship

further observed and held that the evidence of cruelty was

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one continuous chain, several links of which were touched up

by the exhortations to die. 'Thus evidence of cruelty, ill-

treatment and exhortation to end her life adduced in the

case must be held admissible, together with the statement of

Nilima (who committed suicide) in that regard which related

to circumstances terminating in suicide'.

Similarly, in Onkar v. State of Madhya Pradesh [1974

Cri.LJ 1200] while following the decision of the Privy

Council in Pakala Narayana Swami case, the Madhya Pradesh

High Court has explained the nature of the circumstances

contemplated by Section 32 of the Evidence Act thus:

The circumstances must have some proximate relation to

the actual occurrence and they can only include the acts

done when and where the death was caused....Thus a statement

merely suggesting motive for a crime cannot be admitted in

evidence unless it is so intimately connected with the

transaction itself as to be a circumstance of the

transaction. In the instant case evidence has been led

about statements made by the deceased long before this

incident which may suggest motive for the crime.

In Allijan Munshi v. State [AIR 1960 Bom 290] the

Bombay High Court has taken a similar view.

In Chinnavalayan v. State of Madras [1959 Mad LJ 246]

two eminent Judges of the Madras High Court while dealing

with the connotation of the word 'circumstances' observed

thus:

The special circumstances permitted to transgress the

time factor is, for example, a case of prolonged poisoning,

while the special circumstances permitted to transgress the

distance factor is, for example, a case of decoying with

intent to murder. This is because the natural meaning of

the words, according to their Lordships, do not convey any

of the limitations such as (1) that the statement must be

made after the transaction has taken place, (2) that the

person making it must be at any rate near death, (3) that

the circumstances can only include acts done when and where

the death was caused. But the circumstances must be

circumstances of the transaction and they must have some

proximate relation to the actual occurrence.

Before closing this chapter we might state that the

Indian law on the question of the nature and scope of dying

declaration has made a distinct departure from the English

Law where only the statements which directly relate to the

cause of death are admissible. The second part of clause

(1) of Section 32, viz., "the circumstances of the

transaction which resulted in his death, in cases in which

the cause of that person's death comes into question" is not

to be found in the English Law. This distinction has been

clearly pointed out in the case of Rajindra Kumar v. State

[AIR 1960 Punj 310] where the following observations were

made:

Clause (1) of Section 32 of the Indian Evidence Act

provides that statements, written or verbal, of relevant

facts made by a person who is dead,....are themselves

relevant facts when the statement is made by a person as to

the cause of his death, or as to any of the circumstances of

the transaction which resulted in his death in cases in

which the cause of that person's death comes into

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question... It is well settled by now that there is

difference between the Indian Rule and the English Rule with

regard to the necessity of the declaration having been made

under expectation of death.

In the English Law the declaration should have been made

under the sense of impending death whereas under the Indian

Law it is not necessary for the admissibility of a dying

declaration that the deceased at the time of making it

should have been under the expectation of death.

Thus, from a review of the authorities mentioned above

and the clear language of Section 32(1) of the Evidence Act,

the following propositions emerge:

(1) Section 32 is an exception of the rule of hearsay

and makes admissible the statement of a person who dies,

whether the death is a homicide or a suicide, provided the

statement relates to the cause of death, or exhibits

circumstances leading to the death. In this respect, as

indicated above, the Indian Evidence Act, in view of the

peculiar conditions of our society and the diverse nature

and character of our people, has thought it necessary to

widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally

construed and practically reduced to a cut-and- dried

formula of universal application so as to be confined in a

straitjacket. Distance of time would depend or vary with

the circumstances of each case. For instance, where death

is a logical culmination of a continuous drama long in

process and is, as it were, a finale of the story, the

statement regarding each step directly connected with the

end of the drama would be admissible because the entire

statement would have to be read as an organic whole and not

torn from the context. Sometimes statements relevant to or

furnishing an immediate motive may also be admissible as

being a part of the transaction of death. It is manifest

that all these statements come to light only after the death

of the deceased who speaks from death. For instance, where

the death takes place within a very short time of the

marriage or the distance of time is not spread over more

than 3- 4 months the statement may be admissible under

Section 32.

(3) The second part of clause (1) of Section 32 is yet

another exception to the rule that in criminal law the

evidence of a person who was not being subjected to or given

an opportunity of being cross-examined by the accused, would

be valueless because the place of cross-examination is taken

by the solemnity and sanctity of oath for the simple reason

that a person on the verge of death is not likely to make a

false statement unless there is strong evidence to show that

the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not

speak of homicide alone but includes suicide also, hence all

the circumstances which may be relevant to prove a case of

homicide would be equally relevant to prove a case of

suicide.

(5) Where the main evidence consists of statements and

letters written by the deceased which are directly connected

with or related to her death and which reveal a tell-tale

story, the said statement would clearly fall within the four

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corners of Section 32 and, therefore, admissible. The

distance of time alone in such cases would not make the

statement irrelevant."

In Ratan Singh vs. State of Himachal Pradesh [1997 (4)

SCC 161] this Court held that the expression "circumstances

of transaction which resulted in his death" mean that there

need not necessarily be a direct nexus between the

circumstances and death. Even distant circumstance can

become admissible if it has nexus with the transaction which

resulted in death. Relying upon Sharad Birdhichand Sarda's

case (supra) the Court held that:

"It is enough if the words spoken by the deceased have

reference to any circumstance which has connection with any

of the transactions which ended up in the death of the

deceased. Such statement would also fall within the purview

of Section 32(1) of the Evidence Act. In other words, it is

not necessary that such circumstance should be proximate,

for, even distant circumstances can also become admissible

under the sub-section, provided it has nexus with the

transaction which resulted in the death."

In view of this legal position statements of Ms.Sunita

made to her parents, brother and other acquaintances, before@@

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her death are admissible in evidence under Section 32 of the@@

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Evidence Act.

It is further contended on behalf of the respondents

that the statements of the deceased referred to the

instances could not be termed to be cruelty or harassment by

the husband soon before her death. "Soon before" is a

relative term which is required to be considered under

specific circumstances of each case and no straight jacket

formula can be laid down by fixing any time limit. This

expression is pregnant with the idea of proximity test. The

term "soon before" is not synonymous with the term

"immediately before" and is opposite of the expression "soon

after" as used and understood in Section 114, Illustration

(a) of the Evidence Act. These words would imply that the

interval should not be too long between the time of making

the statement and the death. It contemplates the reasonable

time which, as earlier noticed, has to be understood and

determined under the peculiar circumstances of each case.

In relation to dowry deaths, the circumstances showing the

existence of cruelty or harassment to the deceased are not

restricted to a particular instance but normally refer to a

course of conduct. Such conduct may be spread over a period

of time. If the cruelty or harassment or demand for dowry

is shown to have persisted, it shall be deemed to be 'soon

before death' if any other intervening circumstance showing

the non existence of such treatment is not brought on

record, before the alleged such treatment and the date of

death. It does not, however, mean that such time can be

stretched to any period. Proximate and live link between

the effect of cruelty based on dowry demand and the

consequential death is required to be proved by the

prosecution. The demand of dowry, cruelty or harassment

based upon such demand and the date of death should not be

too remote in time which, under the circumstances, be

treated as having become stale enough.. No presumption

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under Section 113B of the Evidence Act would be drawn

against the accused if it is shown that after the alleged

demand, cruelty or harassment the dispute stood resolved and

there was no evidence of cruelty, and harassment thereafter.

Mere lapse of some time by itself would not provide to an

accused a defence, if the course of conduct relating to

cruelty or harassment in connection with the dowry demand is

shown to have existed earlier in time not too late and not

too stale before the date of death of the woman. The

reliance placed by the learned counsel for the respondents

on Sham Lal v. State of Haryana [1997 (9) SCC 579] is of no

help to them, as in that case the evidence was brought on

record to show that attempt had been made to patch up

between the two sides for which Panchayat was held in which

it was resolved that the deceased would go back to the

nuptial home pursuant to which she was taken by the husband

to his house. Such a Panchayat was shown to have held about

10 to 15 days prior to the occurrence of the case. There

was nothing on record to show that the deceased was either

treated with cruelty or harassed with the demand of dowry

during the period between her having taken to the nuptial

home and her tragic end. Such is not the position in the

instant case as the continuous harassment to the deceased is

never shown to have settled or resolved. Mr.Lalit, learned

Senior Counsel has further contended that as the prosecution@@

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had failed to prove the cruelty or harassment for or in@@

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connection with the demand of dowry, the High Court was

justified in acquitting the accused persons including Rakesh

Kumar, respondent No.2. He also pointed out to some alleged

contradictions in the statements of PWs 5 and 6. Having

critically examined the statements of witnesses, we are of

the opinion that the prosecution has proved the persistent

demand of dowry and continuous cruelty and harassment to the

deceased by her husband. The contradictions pointed out are

no major contradictions which could be made the basis of

impeaching the credibility of the witnesses. Reference to

different sums of money demanded by Rakesh Kumar in the

statements of PWs5 and 6 cannot, in any way, be termed to be

contradictory to each other. At the most some of the

amounts referred by one witness and not mentioned by the

other can be termed to be an omission which in no case

amounts to a major contradiction entitling the respondent

No.2 of any benefit. Ram Kishan, PW5 has categorically

stated that Rakesh Kumar accused had raised a demand of

Rs.15,000/- for scooter and refrigerator immediately after

the marriage which was fulfilled by giving him a sum of

Rs.20,000/-. His demand of a colour TV was also fulfilled.

The continuous harassment connected with the demand of dowry

is shown to be in existence till 21st September, 1988 when

the deceased is reported to have come to her brother's house

and met her parents. Thereafter she is not shown to have

met anyone and no intervening circumstances showing the

resolvement or settlement regarding demands of dowry is

brought on record. She was admittedly found dead on 23rd

October, 1988. Kans Raj, PW6 has stated that a colour TV,

clothes and jewellery were given to the accused husband as

dowry. He has deposed that his daughter had told him that

the accused wanted her to bring further cash amount. The

deceased, on persistent demands of the accused, had

withdrawn the total sum of Rs.26,000/- from the accounts

which was opened by the father in her name. He was also

given a new Colour TV in lieu of the TV set given to him at

the time of marriage as the same had allegedly gone out of

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order. It is contended that as there was no Karva Chauth on

23rd October, 1988, the whole of the statement of PW6 should

not be believed because he is alleged to have stated that

his son had gone to the house of accused on 23rd October,

1988 which was the day of Karva Chauth. The submission is

based upon the wrong assumption of fact. It appears that

the statement of PW6 has wrongly been translated in English

wherein it is mentioned: "On 23.10.1988 on the day of Karva

Chauth my son Ram kishan went to the house of the accused

with customary presents. He telephoned me to inform that

Sunita Kumari has died in the house of the accused. I and

my wife went to Batala. The police came to the spot and I

was examined inquest proceedings also. My separate

statement was also recorded."

We have examined the original record and found that the

statement of the witness which were recorded in Punjabi/

Gurmukhi script states that Ram Kishan had gone to the

residence of the accused at the occasion of Karva Chauth

(Mauke Te) and not on the date of Karva Chauth. Relying

upon the evidence in the case, the Trial Court had rightly

concluded: "The sum and substance of the above discussion

is that the prosecution has adduced best available evidence

to prove the charge against the accused. The statement of

Kans Raj (PW6) and Ram Kishan (PW5) inspire confidence. It

is not disputed that Sunita Kumari committed suicide about

3-1/2 years after the marriage. The accused have not given

any satisfactory account of even high probability as to how

Sunit Kumari died. There is a presumption under Section

113A of the Evidence Act that the suicide has been abetted

by the husband or other relative of the husband of the

deceased. The accused have not been able to rebut that

presumption. It is also proved that Sunit Kumari was

treated with cruelty on account of dowry."

It is established that the death of Sunita Kumari by

suicide had occurred within 7 years of her marriage and such

death cannot be stated to have occurred in normal

circumstances. The term "normal circumstances" apparently

means not the natural death. This Court in Smt.Shanti &

Anr.v. State of Haryana [AIR 1991 SC 1226] held that:

"....where the death of a woman is caused by any burns or

bodily injury or occurs otherwise than under normal

circumstances within seven years of her marriage and it is

shown that soon before the death of the woman she was

subjected to cruelty or harassment by her husband or his

relations for or in connection with any demand for dowry,

such death shall be called 'dowry death' and the husband or

relatives shall be deemed to have caused her death and shall

be punishable with imprisonment for a minimum of seven years

but which may extend to life imprisonment."

In other words the expression 'otherwise than under

normal circumstances' would mean the death not in usual

course but apparently under suspicious circumstances, if not

caused by burns or bodily injury.

The High Court appears to have adopted a casual approach

in dealing with a specified heinous crime considered to be a

social crime. Relying upon minor discrepancies and some

omissions, the court has wrongly acquitted the

accused-husband, namely, Rakesh Kumar. The charges framed

against respondent No.2 had been proved by the prosecution

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beyond reasonable doubt and there was no justification for

interferring with the conviction recorded and sentence

passed against him by the Trial Court.

Under the circumstances the present appeal is partly

allowed by setting aside the judgment of the High Court in

so far as it relates to respondent No.2, namely, Rakesh

Kumar, the husband of the deceased and confirmed so far as

it relates to other accused persons. The judgment of the

Trial Court regarding conviction of Shri Rakesh Kumar under

Section 304B is upheld but the sentence is reduced to seven

years Rigorous Imprisonment. His conviction under Section

306 is also upheld but his sentence is reduced to five years

besides paying a fine as imposed by the Trial Court. In

default of payment of fine the respondent No.2 shall suffer

Rigorous Imprisonment for one month more. Confirming his

conviction under Section 498A IPC, the respondent No.2 is

sentenced to undergo Rigorous Imprisonment for two years and

to pay a fine of Rs.250/-, in default of payment of fine he

will further undergo Rigorous Imprisonment for one month.

All the sentences are directed to run concurrently. The

bail bonds of respondent No.2, who is on bail, are cancelled

and he is directed to surrender to serve out the sentence

passed on him.