Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1263 OF 2011

Maya Devi & Anr. .... Appellant(s)

Versus

State of Haryana .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1)This appeal has been filed against the judgment and order dated

14.01.2010 passed by the High Court of Punjab and Haryana at

Chandigarh in Criminal Appeal No. 488-DB of 1999 whereby the

Division Bench of the High Court dismissed the appeal.

2)Brief facts:

(a)As per the prosecution story, the marriage of Kavita @ Kusum

(since deceased) was solemnized with Karamvir, son of Mahavir,

resident of House No. 36, Type II, M.D. University Campus, Rohtak

according to Hindu rites and ceremonies on 17.07.1994. After 20-25

days of the solemnization of the marriage, Karamvir (appellant No. 2

1

Page 2 herein), his mother Maya Devi (appellant No. 1 herein), brothers

Dharamveer and Paramveer and Sister Sonika@Pinki started

harassing, maltreating and beating Kavita (since deceased) on

account of dowry. Despite all efforts, the attitude and relations of her

in-laws towards her went from bad to worse.

(b)On 26.09.1996, the police got a telephonic message from a

stranger at 3:30 a.m. that the dead body of a woman was lying in

House No. 36, Type II, M.D. University Campus, Rohtak. On coming

to know about the incident, Kanwar Singh (the complainant) - father

of Kavita reached the spot and identified the body to be that of his

daughter.

(c)A complaint was lodged by Kanwar Singh (PW-3) at the P.S. Civil

Lines, Rohtak regarding the incident on 27.09.1996 alleging torture

and harassment meted out to the deceased on account of demand of

dowry who had committed suicide by consuming some poisonous

substance. On the basis of the said complaint, FIR No. 466 of 1966

was registered under Sections 498A, 304B, 306/34 of the Indian

Penal Code, 1860 (in short ‘the IPC’). After investigation, charges

under Sections 498A and 304B read with Section 34 of the IPC were

framed against the accused persons.

(d)The case was committed to the Court of Sessions and numbered

2

Page 3 as 11/10.04.1997 and Maya Devi-mother-in-law of the deceased

(appellant No. 1 herein), Karamvir-husband of the deceased (appellant

No. 2 herein) and Dharamveer and Paramveer-brothers of Karamvir

were arrayed as accused.

(e)The Court of Sessions Judge, Rohtak, by order dated

22/27.09.1999, while acquitting Dharamveer and Paramveer

-brothers of Karamvir, convicted the appellant Nos. 1 and 2 herein for

the commission of offence under Sections 498A and 304B of the IPC

and sentenced them to suffer rigorous imprisonment (RI) for life

under Section 304B of the IPC. Both the accused were further

sentenced to undergo rigorous imprisonment (RI) for 2 (two) years,

along with a fine of Rs. 500/- each, for the offence under Section

498A of the IPC.

(f)Being aggrieved, the appellant herein filed Criminal Appeal No.

488-DB of 1999 before the High Court. Kanwar Singh-the

complainant also filed Criminal Revision No. 208 of 2000 before the

High Court for setting aside the judgment and order dated

22/27.09.1999 to the extent of acquittal of Dharamveer and

Paramveer.

(g)The Division Bench of the High Court, by order dated

14.01.2010, dismissed the appeal filed by the appellants herein while

3

Page 4 modifying the sentence of life imprisonment to that of rigorous

imprisonment for 10 years for the offence under Section 304B while

maintaining the sentence in respect of other offence. The Division

Bench also dismissed the revision filed by the complainant.

(h) Aggrieved by the said judgment, the appellants have preferred

this appeal by way of special leave before this Court.

3) Heard Mr. T.S. Doabia, learned senior counsel for the

appellants and Mr. Narender Hooda, learned senior counsel for the

respondent-State.

Rival Submissions:

4)Learned senior counsel for the appellants submitted before this

Court that Kavita (since deceased) was suffering from mental

depression and psychosis and no case has been made out for bringing

the same within the definition of dowry as contained in the Dowry

Prohibition Act, 1961. Learned senior counsel further contended that

she was suffering from mental depression even before her marriage.

Her brother and uncle used to administer anti-depression medicines

to her secretly. In support of the same, learned senior counsel relied

upon the deposition of Dr. V.P. Mehla, MD, Consultant Psychiatric

Centre, Civil Hospital, Rohtak who deposed as under:-

“Kavita wife of Karambir remained under my treatment and because I

have seen her in the OPD on 26.08.1996 vide OPD No. 1034/96. Ex.

DC is her OPD slip. As per my record, patient was suffering from

4

Page 5 moderate depressing episode. The patient suffered from sadness of

mood, absent mindless, loss of interest in the usual activities,

decreased sleep and appetite for the last two month, when I first saw

her. On mental status examination by me, she was found to have

said, irritable facets. She was having depressed mood and expressed

pessimistic ideas and complained against her in-laws and

husband. She also expressed occasional suicidal ideas. Her

Judgment and insight was read to be fair by me. On the basis of

above findings, I judged her to be suffering from moderate depressive

episode and I had prescribed her capsule flute 20 mg. / OD and I

have counseled her and her husband who had accompanied her,

regarding the needful treatment and importance of psychosocial

support in this disease. History of the patient is contained in Ex. DB.

XXX’C. Question : How much time did you take examining patient

Kavita in this case ?

Ans :- I can give no time in this case but routine I used to take new

patient 20 to 30 minutes.

I have not mentioned any marks of identification or signatures

of the patient Kavita in Ex. DD. Whatever was stated by husband of

the patient was recorded in Ex. DD. (Volunteered that Chief

Complaints recorded in Ex. DD were told by patient’s husband and

patient herself). I cannot specifically state as to what was told by the

patient and what was by her husband, Ex. DD contains the mixture

of observation of the complaints of patient and her husband. It is

correct that patient only came to me on 26.08.1996. There is no

pagination in the patient register but serial no. has been maintained.

There is one entry only on 26.08.1996 and that is at the fag end of

the page. Besides Kavita, who was examined on 26.8.96 as a new

patient, I also examined old patients on the said date and their

registration no is mentioned as 226/94 and 983/96 by the side of

entry no. 1034. Patient had this illness as first episode. As per my

record there was no family or past history of psychiatric illness.

Moderate depressing episode is a diagnostic category as defined in

ICD/10 as a depressive illness with symptoms of depression with

moderate intensity. In an expert hand, this disease is 100% curable. I

did not feel the need of any test of the patient. In a predisposed

individual any kind of stress can lead to the precipitation of a

depressive disease and illness. It is incorrect to suggest that I have

deposed falsely.”

5)In view of the above, learned senior counsel relied upon a

decision of this Court in Sharad Birdhichand Sarda vs. State of

Maharashtra (1984) 4 SCC 116 wherein it was held as under:-

“40. Thus, from the recitals in the letters we can safely hold that

5

Page 6 there was a clear possibility and a tendency on her part to commit

suicide due to desperation and frustration. She seems to be tired of

her married life, but she still hoped against hope that things might

improve. At any rate, the fact that she may have committed suicide

cannot be safely excluded or eliminated. It may be that her husband

may have murdered her but when two views are reasonably possible

the benefit must go to the accused. In order to buttress our opinion,

we would like to cite some passages of an eminent psychiatrist,

Robert J. Kastenbaum where in his book Death, Society and Human

Experience he analyses the causes, the circumstances, the moods

and emotions which may drive a person to commit suicide. The

learned author has written that a person who is psychotic in nature

and suffers from depression and frustration is more prone to commit

suicide than any other person. In support of our view, we extract

certain passages from his book:

“The fact is that some people who commit suicide can be

classified as psychotic or severely disturbed.

If we are concerned with the probability of suicide in very large

populations, then mental and emotional disorder is a relevant

variable to consider.

And it is only through a gross distortion of the actual

circumstances that one could claim all suicides are enacted in a

spell of madness.

Seen in these terms, suicide is simply one of the ways in

which a relatively weak member of society loses out in the jungle-

like struggle.

The individual does not destroy himself in hope of thereby

achieving a noble post-mortem reputation or a place among the

eternally blessed. Instead he wishes to subtract himself from a life

whose quality seems a worse evil than death,

The newly awakened spirit of hope and progress soon became

shadowed by a sense of disappointment and resignation that, it

sometimes seemed, only death could swallow,

Revenge fantasies and their association with suicide are well

known to people who give ear to those in emotional distress.

People who attempt suicide for reasons other than revenge may

also act on the assumption that, in a sense, they will survive the

death to benefit by its effect.

** *

The victim of suicide may also be the victim of self-expectations

that have not been fulfilled. The sense of disappointment and

frustration may have much in common with that experienced by

the person who seeks revenge through suicide.... However, for

some people a critical moment arrives when the discrepancy is

experienced as too glaring and painful to be tolerated. If

something has to go it may be the person himself, not the perhaps

excessively high standards by which the judgment has been

6

Page 7 made.... Warren Breed and his colleagues found that a sense of

failure is prominent among many people who take their own lives.

41. The above observations are fully applicable to the case of

Manju. She solemnly believed that her holy union with her husband

would bring health and happiness to her but unfortunately it seems

to have ended in a melancholy marriage which in view of the

circumstances detailed above, left her so lonely and created so much

of emotional disorder resulting from frustration and pessimism that

she was forced to end her life. There can be no doubt that Manju was

not only a sensitive and sentimental woman but was extremely

impressionate (sic) and the letters show that a constant conflict

between her mind and body was going on and unfortunately the

circumstances which came into existence hastened her end. People

with such a psychotic philosophy or bent of mind always dream of an

ideal and if the said ideal fails, the failure drives them to end their

life, for they feel that no charm is left in their life.

42. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in

their book The Melancholy Marriage observe that—

“Studies of attempted suicide cases have also revealed the high

incidence of marital problems which lie behind the act. In our own

study of 100 consecutive cases (Roberts and Hooper 1969), we

found that most of them could be understood if the patients’

interactions with others in their environment were considered.”(p.

5)

43. Such persons possess a peculiar psychology which instils

extreme love and devotion but when they are faced with

disappointment or find their environment so unhealthy or unhappy,

they seem to lose all the charms of life. The authors while describing

these sentiments observe thus:

“‘Hopelessness’, ‘despair’, ‘lousy’ and ‘miserable’ draw attention

to the relationship of the depressed person ‘to his environment.

The articulate depressed person will often also struggle to put into

words the fact that not only does there appear to be no way

forward and thus no point to life — but that the world actually

looks different.”(p. 7)

44. Coleridge in Ode to Dejection in his usual ironical manner has

very beautifully explained the sentiments of such persons thus:

“I see them all so excellently fair —

I see, not feel, how beautiful they are;”

45. At another place the authors (Hinchliffe, Hooper, and John)

come to the final conclusion that ruptured personal relationships

play a major part in the clinical picture and in this connection

observed thus:

“Initially we applied these ideas to study of cases of attempted

suicide (Roberts and Hooper 1969) and although we did not

assume that they were all necessarily depressed, we looked for

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Page 8 distal and proximal causes for their behaviour and found that

ruptured personal relationships played a major part in the clinical

picture.”

The observations of the authors aptly and directly apply to the

nature, mood and the circumstances of the unfortunate life of Manju

which came to an end within four months of her marriage.”

6)Learned senior counsel further submitted that Kavita had

committed suicide on account of the fact that she was mentally

depressed and no case is made out under Section 304B of the IPC as

the requirement of law is that the harassment and cruelty should be

“soon before her death” and no evidence has come on record for this

purpose. In order to bring home conviction under Section 304B of the

IPC, it will not be sufficient to only lead evidence showing that cruelty

or harassment had been meted out to the victim, but that such

treatment was in connection with the demand for dowry. The

phrase, “soon before her death”, no doubt, is an elastic expression

and can refer to a period either immediately before her death or

within a few days or even a few weeks before it. But the proximity to

her death is the pivot indicated by that expression. The legislative

intent in providing such a radius of time by employing the words

“soon before her death” is to emphasis the idea that her death should,

in all probabilities, has been the aftermath of such cruelty or

harassment. There should be a perceptible nexus between her death

and the dowry related harassment or cruelty inflicted on her.

8

Page 9 7)In support of the above contention, learned senior counsel for

the appellants referred to a decision of this Court in Durga Prasad

and Another vs. State of Madhya Pradesh (2010) 9 SCC 73

wherein it was held as under:-

7. It was pointed out that the only evidence on which reliance had

been placed both by the trial court, as well as the High Court, for

convicting the appellants, was the evidence of Vimla Bai, PW 1, the

mother of the deceased and Radheshyam, PW 3, the brother of the

deceased. In fact, the prosecution story was that since no dowry had

been received from the family of the victim, she had been beaten and

treated with cruelty. There is no other evidence regarding the

physical and mental torture which the deceased was alleged to have

been subjected to.

8. Mr Gupta urged that the marriage of Appellant 1 with the

deceased was performed as part of a community marriage being

celebrated on account of the poverty of couples who could not

otherwise meet the expenses of marriage and that even the few

utensils which were given at the time of such community marriage

were given by the persons who had organised such marriages.

9. Mr Gupta submitted that the evidence in this case was wholly

insufficient to even suggest that the victim had been subjected to

cruelty or harassment which was sufficient to compel her to commit

suicide. In support of his submissions, Mr Gupta firstly referred to

the decision of this Court in Biswajit Halder v. State of W.B. wherein,

in facts which were very similar, it was held that there was

practically no evidence to show that there was any cruelty or

harassment for, or in connection with, the demands for dowry. There

was also no finding in that regard. It was further observed that this

deficiency in evidence proved fatal for the prosecution case and even

otherwise mere evidence of cruelty and harassment was not sufficient

to attract Section 304-B IPC. It had to be shown in addition that

such cruelty or harassment was for, or in connection with, demand

of dowry. Mr Gupta urged that since the appellants had not been

convicted under the provisions of the Dowry Prohibition Act, 1961,

the charge under Section 304-B would also fail since the same was

linked with the question of cruelty or harassment for, or in

connection with, the demand for dowry.

14. Ms Makhija then contended that as had been laid down by

this Court in Anand Kumar v. State of M.P., in order to counter the

presumption available under Section 113-B, which is relatable to

Section 304-B, a heavy burden has been shifted on to the accused to

prove his innocence. Having regard to the language of Section 113-B

9

Page 10 of the Evidence Act, which indicates that when a question arises as

to whether a person has committed the dowry death of a woman and

it is shown that soon before her death such woman was subjected to

cruelty or harassment by such other person or in connection with

any demand for dowry, the court shall presume that such person had

caused such dowry death. Ms Makhija urged that the aforesaid

wording of Section 113-B of Evidence Act and the use of the

expression “shall” would clearly indicate that the court shall presume

such death as dowry death provided the conditions in Section 113-B

were satisfied and it would then be for the accused to prove

otherwise.

15. Ms Makhija, thereupon, urged that the order of conviction

passed by the trial court holding the appellants guilty under Sections

498-A and 304-B IPC, confirmed by the High Court, did not warrant

any interference by this Court.

16. Having carefully considered the submissions made on behalf

of the respective parties, we are inclined to allow the benefit of doubt

to the appellants having particular regard to the fact that except for

certain bald statements made by PWs 1 and 3 alleging that the victim

had been subjected to cruelty and harassment prior to her death,

there is no other evidence to prove that the victim committed suicide

on account of cruelty and harassment to which she was subjected

just prior to her death, which, in fact, are the ingredients of the

evidence to be led in respect of Section 113-B of the Evidence Act,

1872, in order to bring home the guilt against an accused under

Section 304-B IPC.

17. As has been mentioned hereinbefore, in order to hold an

accused guilty of an offence under Section 304-B IPC, it has to be

shown that apart from the fact that the woman died on account of

burn or bodily injury, otherwise than under normal circumstances,

within 7 years of her marriage, it has also to be shown that soon

before her death, she was subjected to cruelty or harassment by her

husband or any relative of her husband for, or in connection with,

any demand for dowry. Only then would such death be called “dowry

death” and such husband or relative shall be deemed to have caused

the death of the woman concerned.

18. In this case, one other aspect has to be kept in mind, namely,

that no charges were framed against the appellants under the

provisions of the Dowry Prohibition Act, 1961 and the evidence led in

order to prove the same for the purposes of Section 304-B IPC was

related to a demand for a fan only.

19. The decision cited by Mr R.P. Gupta, learned Senior Advocate,

in Biswajit Halder case was rendered in almost similar

circumstances. In order to bring home a conviction under Section

304-B IPC, it will not be sufficient to only lead evidence showing that

cruelty or harassment had been meted out to the victim, but that

such treatment was in connection with the demand for dowry. In our

view, the prosecution in this case has failed to fully satisfy the

10

Page 11 requirements of both Section 113-B of the Evidence Act, 1872 and

Section 304-B of the Penal Code.

8)Learned senior counsel further relied upon Satvir Singh and

Others vs. State of Punjab and Another (2001) 8 SCC 633 which is

as under:-

“21. Thus, there are three occasions related to dowry. One is

before the marriage, second is at the time of marriage and the third is

“at any time” after the marriage. The third occasion may appear to be

an unending period. But the crucial words are “in connection with

the marriage of the said parties”. This means that giving or agreeing

to give any property or valuable security on any of the above three

stages should have been in connection with the marriage of the

parties. There can be many other instances for payment of money or

giving property as between the spouses. For example, some

customary payments in connection with birth of a child or other

ceremonies are prevalent in different societies. Such payments are

not enveloped within the ambit of “dowry”. Hence the dowry

mentioned in Section 304-B should be any property or valuable

security given or agreed to be given in connection with the marriage.

22. It is not enough that harassment or cruelty was caused to the

woman with a demand for dowry at some time, if Section 304-B is to

be invoked. But it should have happened “soon before her death”.

The said phrase, no doubt, is an elastic expression and can refer to a

period either immediately before her death or within a few days or

even a few weeks before it. But the proximity to her death is the pivot

indicated by that expression. The legislative object in providing such

a radius of time by employing the words “soon before her death” is to

emphasise the idea that her death should, in all probabilities, have

been the aftermath of such cruelty or harassment. In other words,

there should be a perceptible nexus between her death and the

dowry-related harassment or cruelty inflicted on her. If the interval

elapsed between the infliction of such harassment or cruelty and her

death is wide the court would be in a position to gauge that in all

probabilities the harassment or cruelty would not have been the

immediate cause of her death. It is hence for the court to decide, on

the facts and circumstances of each case, whether the said interval

in that particular case was sufficient to snuff its cord from the

concept “soon before her death”.”

11

Page 12 9)Learned senior counsel for the appellants further contended that

so far as Maya Devi-appellant No. 1 herein is concerned, she was not

staying at Rohtak at the relevant time and she was a teacher in

Municipal School at Delhi which is apparent from the statement of

Smt. Rajbala (DW-3), Head Mistress, Nagar Nigam Prathmik Balika

Vidyalaya, Ladpur, Delhi as also from the investigation and the case

of the prosecution. Even, Karamvir-husband of the deceased was not

present in the house when Kavita committed the act of suicide. He

finally contended that there is nothing on record to show that any

demand for dowry was made and she meted out cruelty or

harassment soon before her death. Learned senior counsel further

contended that even for the purpose of Section 498A the evidence is

lacking.

10)On the other hand, learned senior counsel for the respondent-

State submitted that there is no dispute that Kavita died on

26.09.1996 in her matrimonial home otherwise than under normal

circumstances due to poisoning. Admittedly, there were persistent

demands put up by the accused right from the solemnization of the

marriage which continued till the date of the death of the deceased.

He further contended that the accused had been maltreating,

12

Page 13 harassing and subjecting her to cruelty for the fulfillment of their

demands for additional dowry. It was next contended that in the

present case, besides Kavita, the accused had also humiliated Pankaj

(PW-4) – brother of the deceased. When PW-4 visited the house of the

accused with some ceremonial articles on the day of ‘sakrant’, the

accused expressed displeasure upon the articles brought by him. He

further contended that the claim that the deceased was suffering from

moderate depressing episode and was having suicidal tendencies

prior to her death which had come true on 26.09.1996 is hardly of

any consequence. A series of transactions of maltreatment and

cruelty which commenced just 20-25 days after the solemnization of

the marriage of the deceased with appellant No. 2 herein and

culminated on the date of the death of the deceased would go a long

way to show that she was harassed, maltreated and was subjected to

cruelty soon before her death for and in connection with the demands

for dowry. It was further submitted that the deceased was so much

depressed as a result of cruelty/harassment meted out to her at the

hands of the appellants that she developed the suicidal tendencies.

He further submitted that the accused had created such a vicious

and charged atmosphere in the matrimonial home that Kavita (since

deceased) started picking up the ideas of committing suicide.

13

Page 14 11)Learned senior counsel for the respondent-State vehemently

contended that all the accused except appellant No. 1 were living in a

house and the claim of the appellants that there is no point of

involvement of Maya Devi in the whole incident is wholly irrelevant as

she too was a frequent visitor to Rohtak as admitted by her in the

statement made under Section 313 of the Code of Criminal Procedure,

1973 (in short ‘the Code’) and there is sufficient evidence on record to

show that as and when the demands were put up by the accused to

the complainant party, Maya Devi always accompanied her son.

12)Learned senior counsel for the respondent-State finally

contended that the trial Court rightly convicted and sentenced the

appellants under Section 304B and 498A of the IPC and the High

Court upheld the same with some modification in the sentence. The

appellants deserve a deterrent punishment in the present case.

Discussion:

13) Before considering the prosecution case as well as the defence

pleaded, it is desirable to extract the relevant provisions of Section

304B which relates to dowry death:

“304B. Dowry death.—(1) 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 her death she was subjected to cruelty or

harassment by her husband or any relative of her husband for, or in

connection with, any demand for dowry, such death shall be called

‘dowry death’, and such husband or relative shall be deemed to have

14

Page 15 caused her death.

Explanation.—For the purpose of this sub-section, ‘dowry’ shall

have the same meaning as in Section 2 of the Dowry Prohibition Act,

1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with

imprisonment for a term which shall not be less than seven years but

which may extend to imprisonment for life.”

The above provision was inserted by Act 43 of 1986 and came into

force with effect from 19.11.1986. There is no dispute about the

applicability of the above provision since the marriage and the death

occurred in the year 1994 and 1996 respectively.

14) In order to convict an accused for the offence punishable under

Section 304B IPC, the following essentials must be satisfied:

(i) the death of a woman must have been caused by burns or

bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her

marriage;

(iii) soon before her death, the woman must have been subjected

to cruelty or harassment by her husband or any relatives of her

husband;

(iv) such cruelty or harassment must be for, or in connection

with, demand for dowry.

When the above ingredients are established by reliable and acceptable

evidence, such death shall be called dowry death and such husband

or his relatives shall be deemed to have caused her death. If the

abovementioned ingredients are attracted in view of the special

15

Page 16 provision, the court shall presume and it shall record such fact as

proved unless and until it is disproved by the accused. However, it is

open to the accused to adduce such evidence for disproving such

conclusive presumption as the burden is unmistakably on him to do

so and he can discharge such burden by getting an answer through

cross-examination of the prosecution witnesses or by adducing

evidence on the defence side.

15) Section 113B of the Evidence Act, 1872 speaks about

presumption as to dowry death which reads as under:

“113-B. Presumption as to dowry death .—When the question is

whether a person has committed the dowry death of a woman and it

is shown that soon before her death such woman has been subjected

by such person to cruelty or harassment for, or in connection with,

any demand for dowry, the Court shall presume that such person

had caused the dowry death.

Explanation.—For the purposes of this section, ‘dowry death’ shall

have the same meaning as in Section 304B of the Indian Penal Code

(45 of 1860).”

As stated earlier, the prosecution under Section 304B IPC cannot

escape from the burden of proof that the harassment or cruelty was

related to the demand for dowry and such was caused “soon before

her death”. In view of the Explanation to the said section, the word

“dowry” has to be understood as defined in Section 2 of the Dowry

Prohibition Act, 1961 which reads as under:

“2. Definition of ‘dowry’.—In this Act, ‘dowry’ means any

property or valuable security given or agreed to be given either

16

Page 17 directly or indirectly—

(a) by one party to a marriage to the other party to the

marriage; or

(b) by the parent of either party to a marriage or by any other

person, to either party to the marriage or to any other person,

at or before or any time after the marriage in connection with the

marriage of the said parties, but does not include dower or mahr in

the case of persons to whom the Muslim Personal Law (Shariat)

applies.”

16)To attract the provisions of Section 304B, one of the main

ingredients of the offence which is required to be established is that

“soon before her death” she was subjected to cruelty or harassment

“for, or in connection with the demand for dowry”. The expression

“soon before her death” used in Section 304B IPC and Section 113B

of the Evidence Act is present with the idea of proximity test. In fact,

learned senior counsel appearing for the appellants submitted that

there is no proximity for the alleged demand of dowry and

harassment. With regard to the said claim, we shall advert to while

considering the evidence led in by the prosecution. Though the

language used is “soon before her death”, no definite period has been

enacted and the expression “soon before her death” has not been

defined in both the enactments. Accordingly, the determination of the

period which can come within the term “soon before her death” is to

be determined by the courts, depending upon the facts and

circumstances of each case. However, the said expression would

17

Page 18 normally imply that the interval should not be much between the

cruelty or harassment concerned and the death in question. In other

words, there must be existence of a proximate and live link between

the effect of cruelty based on dowry demand and the death concerned.

If the alleged incident of cruelty is remote in time and has become

stale enough not to disturb the mental equilibrium of the woman

concerned, it would be of no consequence.

17)The aforesaid provisions were considered by this Court in Bansi

Lal vs. State of Haryana (2011) 11 SCC 359 wherein it was held

that while considering the case under Section 304B cruelty has to be

proved during the close proximity of the time of death and it should

be continuous and such continuous harassment, physical or mental,

by the accused should make life of the deceased miserable which may

force her to commit suicide. This Court further held that where the

cruelty has been proved during the close proximity of the time of

death then the provisions of Section 113B of the Indian Evidence Act,

1872 providing for presumption that the accused is responsible for

dowry death, have to be pressed in service. In paras 19 and 20 of the

judgment, this Court has further held as follows:-

“19. It may be mentioned herein that the legislature in its wisdom

has used the word “shall” thus, making a mandatory application on

the part of the court to presume that death had been committed by

the person who had subjected her to cruelty or harassment in

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Page 19 connection with any demand of dowry. It is unlike the provisions of

Section 113-A of the Evidence Act where a discretion has been

conferred upon the court wherein it had been provided that court

may presume abetment of suicide by a married woman. Therefore, in

view of the above, onus lies on the accused to rebut the presumption

and in case of Section 113-B relatable to Section 304-B IPC, the onus

to prove shifts exclusively and heavily on the accused. The only

requirements are that death of a woman has been caused by means

other than any natural circumstances; that death has been caused or

occurred within 7 years of her marriage; and such woman had been

subjected to cruelty or harassment by her husband or any relative of

her husband in connection with any demand of dowry.

20. Therefore, in case the essential ingredients of such death have

been established by the prosecution, it is the duty of the court to

raise a presumption that the accused has caused the dowry death. It

may also be pertinent to mention herein that the expression “soon

before her death” has not been defined in either of the statutes.

Therefore, in each case, the Court has to analyse the facts and

circumstances leading to the death of the victim and decide if there is

any proximate connection between the demand of dowry and act of

cruelty or harassment and the death.”

18)This Court, in Mustafa Shahadal Shaikh vs State of

Maharashtra (2012) 11 SCC 397 held as under:-

“9. In order to convict an accused for the offence punishable under

Section 304-B IPC, the following essentials must be satisfied:

(i) the death of a woman must have been caused by burns or

bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her

marriage;

(iii) soon before her death, the woman must have been subjected

to cruelty or harassment by her husband or any relatives of her

husband;

(iv) such cruelty or harassment must be for, or in connection with,

demand for dowry.

When the above ingredients are established by reliable and acceptable

evidence, such death shall be called dowry death and such husband or

his relatives shall be deemed to have caused her death. If the

abovementioned ingredients are attracted in view of the special

provision, the court shall presume and it shall record such fact as

proved unless and until it is disproved by the accused. However, it is

open to the accused to adduce such evidence for disproving such

compulsory presumption as the burden is unmistakably on him to do so

and he can discharge such burden by getting an answer through cross-

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Page 20 examination of the prosecution witnesses or by adducing evidence on

the defence side.

11. To attract the provisions of Section 304-B, one of the main

ingredients of the offence which is required to be established is that

“soon before her death” she was subjected to cruelty or harassment “for,

or in connection with the demand for dowry”. The expression “soon

before her death” used in Section 304-B IPC and Section 113-B of the

Evidence Act is present with the idea of proximity test. In fact, the

learned counsel appearing for the appellant submitted that there is no

proximity for the alleged demand of dowry and harassment. With regard

to the said claim, we shall advert to the same while considering the

evidence led in by the prosecution. Though the language used is “soon

before her death”, no definite period has been enacted and the

expression “soon before her death” has not been defined in both the

enactments. Accordingly, the determination of the period which can

come within the term “soon before her death” is to be determined by the

courts, depending upon the facts and circumstances of each case.

However, the said expression would normally imply that the interval

should not be much between the cruelty or harassment concerned and

the death in question. In other words, there must be existence of a

proximate and live link between the effect of cruelty based on dowry

demand and the death concerned. If the alleged incident of cruelty is

remote in time and has become stale enough not to disturb the mental

equilibrium of the woman concerned, it would be of no consequence.

These principles have been reiterated in Kaliyaperumal v. State of T.N.

and Yashoda v. State of M.P.”

19)In the case of Ramesh Vithal Patil vs. State of Karnataka

(2014) 11 SCC 516 this Court held as follows:-

“20. Moreover, admittedly the deceased committed suicide within

a period of seven years from the date of her marriage. Section 113-A

of the Evidence Act is, therefore, clearly attracted to this case.

Presumption contemplated therein must spring in action. This

provision was introduced by the Criminal Law (Second Amendment)

Act, 1983 to resolve the difficulty of proof where married women are

forced to commit suicide but incriminating evidence is difficult to get

as it is usually available within the four walls of the matrimonial

home…..”

20)With these principles in mind, let us analyse the evidence led in

by the prosecution. The marriage of Kavita@Kusum (since deceased)

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Page 21 was solemnized with Karamvir on 17.07.1994. Kavita died on

26.09.1996 after consuming some poisonous substance at her

matrimonial home. The father of the deceased lodged a complaint

against the accused persons that he had given dowry on the eve of

marriage beyond his means but after 20-25 days of marriage,

Karamvir-appellant No. 2 herein, Maya Devi-appellant No.1 herein

and brothers Dharamveer and Paramveer and sister Sonika, started

harassing his daughter for more money. When Kavita visited her

father’s house, she narrated the entire tale of woes to her parents and

brother. When the complainant enquired about the matter, the

appellants informed the complainant that the appellant No. 2 is in

need of money and they also have to perform the marriage of Sonika.

A sum of Rs. 20,000/- was paid to appellant No. 2 so that the

daughter of the complainant is not harassed. It was further stated

that the complainant received a letter of his daughter regarding

continuous demand for dowry and sufferings meted out to her. The

complainant paid a further sum of Rs. 25,000/- for the purchase of

refrigerator and gold chain to the appellant No. 2. Kavita was sent

with her husband on the assurance that the accused family would

not harass her in future. Even on the day of ‘sakrant’, when the

brother of the deceased visited her matrimonial home, the accused

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Page 22 threatened them that the household articles of Kavita will be thrown

out. A further demand of Rs. 30,000/- was made to meet the kitchen

expenses by the appellants. Since that demand was not fulfilled, the

deceased was left with her father at Delhi. Subsequently, the

complainant requested to compromise the matter and tendered his

apology in writing. In June 1996, the deceased was brought to home

by the accused persons. After some days, when the complainant

visited her matrimonial home at Rohtak, he was informed that

situation has not changed and whenever she brings money, the peace

returns for 10-20 days otherwise she is beaten mercilessly by the

accused persons. On 26.09.1996, the complainant got the

information about the death of his daughter. The case was

committed to the Court of Sessions and the accused were found guilty

under Section 304B and 498A of the IPC. There is ample evidence

that the deceased was harassed, maltreated and was subjected to

cruelty, for and in connection with the demands for dowry by the

accused. Admittedly, appellant No. 2 was present in his office on

26.09.1996 located at M.D. University Campus at Rohtak but he did

not attend to his wife at the relevant time. The assertion made by

learned senior counsel for the appellants that the deceased was

suffering from moderate depressing episode and was having suicidal

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Page 23 tendencies prior to her death is of no consequence. Dr. V.P. Mehla

(DW-2) was apprised by the deceased about the harassment and the

maltreatment by her in-laws a month prior to her death when she

was taken to the aforesaid doctor for the alleged treatment. According

to DW-2, the deceased was so much depressed as a result of the act

of cruelty meted out to her at the hands of the appellants that she

developed suicidal tendencies. The testimony of DW-2 shows that the

accused had created such a charged environment in her matrimonial

home that she developed suicidal tendencies. Except appellant No. 1

herein, all were living in the house at Rohtak. Appellant No. 1 herein

was a frequent visitor to that house and she herself admitted this fact

in her statement under Section 313 of the Code. Thus, it is very

much clear that accused persons maltreated, harassed and subjected

the deceased to cruelty, after the solemnization of her marriage with

the appellant No. 2 herein, during her life time and soon before her

death, for and in connection with the demands for dowry, who died at

her matrimonial home within seven years of her marriage otherwise

than in normal circumstances.

21) Section 304B IPC does not categorise death as homicidal or

suicidal or accidental. This is because death caused by burns can, in

a given case, be homicidal or suicidal or accidental. Similarly, death

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Page 24 caused by bodily injury can, in a given case, be homicidal or suicidal

or accidental. Finally, any death occurring “otherwise than under

normal circumstances” can, in a given case, be homicidal or suicidal

or accidental. Therefore, if all the other ingredients of Section 304B

IPC are fulfilled, any death (homicidal or suicidal or accidental)

whether caused by burns or by bodily injury or occurring otherwise

than under normal circumstances shall, as per the legislative

mandate, be called a “dowry death” and the woman’s husband or his

relative “shall be deemed to have caused her death”. The section

clearly specifies what constitutes the offence of dowry death and also

identifies the single offender or multiple offenders who has or have

caused the dowry death.

22)The key words under Section 113B of the Evidence Act, 1872 are

“shall presume” leaving no option with a court but to presume an

accused brought before it of causing a dowry death guilty of the

offence. However, the redeeming factor of this provision is that the

presumption is rebuttable. Section 113B of the Act enables an

accused to prove his innocence and places a reverse onus of proof on

him or her. In the case on hand, accused persons failed to prove

beyond reasonable doubt that the deceased died a natural death.

When Kavita allegedly committed suicide, her husband-appellant

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Page 25 No.2, though he was not present in the house, was present in his

office at M.D. University, Rohtak at the relevant time but he did not

make any sincere effort to take her to the hospital which was very

near to the place of the incident. Similarly, appellant No. 2 got the

deceased examined by DW-2 in order to create an impression that she

was struggling with chronic depression but the truth floated upon the

surface when the deceased reveals that the accused persons were

maltreating her and she had started picking up the ideas of suicide.

Lastly, appellant No. 2 falsely informed the court that having learnt

about the death of his wife Kavita, he left for Delhi to inform her

family members. In fact, the accused never went to Delhi and the

complainant received a telephonic message from an unknown person

regarding the death of his daughter. So far as Maya Devi-appellant

No. 1 herein is concerned, there is no denying the fact that she was

working as a teacher in a government school and she was not present

at the relevant time at the place of incident but it is very much clear

from the evidence on record that both the accused persons had a

dominating role in the entire episode and she had always

accompanied her son-appellant No. 2 herein to the house of the

complainant (PW-3) for the dowry demands. The presumption under

Section 113B of the Act is mandatory may be contrasted with Section

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Page 26 113A of the Act which was introduced contemporaneously. Section

113A of the Act, dealing with abetment of suicide, uses the expression

“may presume”. This being the position, a two-stage process is

required to be followed in respect of an offence punishable under

Section 304-B IPC: it is necessary to first ascertain whether the

ingredients of the Section have been made out against the accused; if

the ingredients are made out, then the accused is deemed to have

caused the death of the woman but is entitled to rebut the statutory

presumption of having caused a dowry death. From the evidence on

record, we are of the opinion that in the present case Kavita died an

unnatural death by committing suicide as she was subjected to

cruelty/harassment by her husband and in-laws in connection with

the demand for dowry which started from the time of her marriage

and continued till she committed suicide. Thus, the provisions of

Sections 304B and 498A of the IPC will be fully attracted.

Conclusion:

23)In the light of the above discussion, we are of the opinion that

Kavita@Kusum suffered death at her matrimonial home, otherwise

than under normal circumstances, within seven years of her

marriage, and the case squarely falls within the ambit of dowry death.

In the present case, from the evidence of the Doctor (DW-2), PW-3 and

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Page 27 PW-4, we find that the harassment of the deceased was with a view to

coerce her to convince her parents to meet the demands for dowry.

24)All the above factors clearly established the legal requirements

for an offence falling under Sections 304B and 498A IPC with the aid

of Section 113B of the Evidence Act, 1872 against the appellants and

the conviction and sentence imposed, therefore, do not call for

interference. Hence, the appeal fails and is accordingly dismissed.

...…………….………………………J.

(VIKRAMAJIT SEN)

.…....…………………………………J.

(R.K. AGRAWAL)

NEW DELHI;

DECEMBER 7, 2015.

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Page 28 ITEM NO.1A COURT NO.12 SECTION IIB

(for Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1263/2011

MAYA DEVI & ANR. Appellant(s)

VERSUS

STATE OF HARYANA Respondent(s)

Date : 07/12/2015 This appeal was called on for pronouncement of

judgment today.

For Appellant(s) Mr. Jagjit Singh Chhabra, AOR

For Respondent(s) Mr. Kamal Mohan Gupta, AOR

Hon'ble Mr. Justice R.K. Agrawal pronounced the reportable

judgment of the Bench comprising Hon'ble Mr. Justice Vikramajit

Sen and His Lordship.

The appeal is dismissed in terms of the signed reportable

judgment.

(R.NATARAJAN) (SNEH LATA SHARMA)

Court Master Court Master

(Signed reportable judgment is placed on the file)

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