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PETITIONER:

PAWAN KUMAR & ORS.

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 09/02/1998

BENCH:

CJI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:

THE 29TH DAY OF FEBRUARY, 1998

Present :

Hon'ble the Chief Justice

Hon'ble Mr. Justice A.P.Misra

U.R.Lalit, Sr. Adv., Manoj Swarup and Sudhir Walia, Advs.

with him for the appellants.

Prem Malhotre and Altaf Hussain, Advs. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered:

A.P.MISRA, J.

For more than a century, inspite of tall words of

respect for women, there has been an onslaught on their

liberties through `bride burning' and `dowry deaths'. This

has caused anxiety to the legislators, judiciary and law

enforcing agencies, who have attempted to resurrect them

from this social choke. There have been series of

legislations in this regard, without much effect. This led

to the passing of Dowry Prohibition Act in 1961. Inspite of

this, large number of `brides burning' and dowry deaths

continued. To meet this, stringent measures were brought in

the Indian Penal Code and the Evidence Act through

amendments. It seems, sections of society are still boldly

pursuing this chronic action to fulfil their greedy desire.

Inspite of stringent legislations, such persons are still

indulging in these unlawful activities, not because of any

shortcomings in law but under the protective principle of

criminal jurisprudence of benefit of doubt. Often, innocent

persons are also trapped or brought in with ulterior

motives. This places an arduous duty on the Court to

separate such individuals from the offenders. Hence the

Courts have to deal such cases with circumvention, sift

through the evidence with caution, scrutinise the

circumstances with utmost care. The present matter is one

such where similar questions have been raised, including

question of interpretation of the stringent law.

The three appellants were convicted for offence under

Sections 306, 498-A and 304-B IPC. Appellant No. 1 is the

deceased's husband, No. 2 the father-in-law, and No, 3 the

mother-in-law respectively. The trial court convicted and

sentenced appellant No.1 for offence under section 304-B for

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10 years and a fine Rs. 500/, under section 306 for 7 years

and a fine of Rs. 200/- and under section 498-A for 2 years

and a fne of Rs. 200/. Appellant Nos. 2 and 3 were convicted

and sentenced under section 304-B for 7 years with a fine

of Rs. 500/-, under section 306 for 7 years with a fine of

Rs. 200/- and under section 498-A IPC for 2 years with a

fine of Rs. 200/-. The sentences were ordered to run

concurrently. The High Court maintained the convictions but

reduced the sentence form 10 years to 7 years so far

appellant No. 1 is concerned.

The brief facts of the case are :

Urmil (deceased) and appellant No.1 were married on

29th May, 1985. Appellant No.1 was working at Lucknow and

had later shifted to Sonepat (Haryana). According to the

prosecution case, within a few days of the marriage Urmil

returned home and complained regarding demands of dowry for

a refrigerator, scooter etc. by appellants. These demands

were reiterated on subsequent visits. On account of non-

fulfilment of these demands, the deceased was allegedly

tortured and harassed. These alleged actions ultimately

contributed towards a suicidal death. It is not in dispute

that she died of burn injuries on 18th May, 1987.

In April 1987, Tara Chand, maternal uncle of the

deceased died. Urmil (deceased) and Appellant No.1 went to

Shahdara (Delhi) to offer condolences. From there, Appellant

No.1 returned and Urmil went to her sister's place in Delhi.

On 17th May, 1987, when Appellant No. 1 went to the

deceased's sister's place to bring Urmil (the deceased) back

to Sonepat, some quarrel took place between them.

Regardless, Appellant No. 1 brought back the deceased to

Sonepat. The very next day i.e. on the 18th May, 1987,

according to the appellants, at 9.30 a.m. Joginder Pal,

(neighbour of the appellant) came to appellant No.2 and

informed him that smoke was coming out from the room on the

first floor of the house. When they reached there, they

found Urmil lying dead on the floor with burn injuries. The

room was full of smoke. Later, the parents of the deceased

arrived and a post mortem examination was conducted on the

body of the deceased. The doctor found that the cause of

death was shock and asphyxia as a result of servere burns

which were ante-mortem and were sufficient to causes death

in the ordinary course of life.

Learned counsel for the appellants vehemently argued

with vehemence that even if all the evidence on record was

taken into consideration, no offence could be made out. No

clear finding of suicide had been recorded and in any case

essential ingredients of Section 304-B of IPC were lacking.

The evidence against appellants No.2&3 was flimsy, and in

any case their conviction could not be sustained. Further,

there was no evidence that soon before her death, the

deceased was subjected to cruelty or harassment for or in

connection with any demand of dowry. There was neither any

demand of dowry nor was there any agreement at the time of

marriage, which is an essential ingredient to constitute an

offence under dowry death in terms of definition of `dowry'

as given under Section 2 of the Dowry Prohibition Act, 1961

(hereinafter referred to as `the 1961 Act'). Unless there is

an agreement for dowry, at the time of marriage or in

connection with marriage, it would not qualify to be a dowry

within such definition, hence no offence under Section 304-B

I.P.C. Merely expressing the grouse of asking for fridge or

TV would not by itself constitute to be a dowry within the

said definition in the absence of any agreement. Further,

before applying the demand clause under Section 304-B the

evidence has to be within the scope of criminal

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jurisprudence, i.e. to prove guilt beyond all reasonable

doubt. It cannot be based merely on suspicion, conjectures

and surmises.

Let us see Section 304 I.P.C. The ingredients necessary

for the application of Section 304-B are :-

[a] When the death of a woman is caused by any burns

or bodily injury, or

[b] occurs otherwise than under normal circumstances.

[c] and the aforesaid two facts springs within 7 years

of girl's marriage.

[d] and soon before her death, she was subjected to

cruelty or harassment by her husband or his

relative.

[e] this is in connection with the demand of dowry.

If these conditions exist, it would constitute a dowry

death; and the husband and/or his relatives shall be deemed

to have caused her death. In the present case, it is not in

dispute that the deceased Urmil died of burn injuries, that

she died otherwise than under normal circumstances, and that

the death was within a period of 7 years of marriage. The

only consideration has to be : whether she was subjected to

any cruelty or harassment by the appellants soon before her

death, and whether the same was for or in connection with

any demand of dowry. In support of prosecution case, Smt.

Misro Devi, mother of the deceased, PW-4 Trishala Devi,

sister of the deceased, PW-5 Prem Chand Jain, father of the

deceased, PW-6 Ram Gopal, brother-in-law of the deceased,

husband of PW-5,PW-7 were examined. On perusal of the

evidence of PW-4 we find that the mother of the deceased

deposed that within four days following the marriage, her

daughter deceased Urmil came back to her and told her that

her parents-in-law and husband were subjecting her to taunts

for not bringing a scooter and refrigerator as dowry at the

time of marriage. She somehow pacified her daughter to

return. Urmil came back after two months and again told her

mother that her husband in-laws were continuously taunting

her daily, maltreating her and calling her ugly for not

bringing the aforesaid goods as dowry. Admittedly, these

taunts were uttered in view of the lesser dowry brought by

her. Even after giving birth to a son, when she came back

she again narrated the continued maltreatment poured on her

by the accused. She also deposed that Urmil wrote some

letters from Sonepat to her at Calcutta and Hansi, but after

going through them she tore them up. Her letters also

referred to the same maltreatment and torture. Similarly,

PW-6, the father of the deceased also referred to the

similar complaints made to him by Urmil. He also deposed

that she used to tell him that her husband and in-laws were

maltreating and harassing her on account of not meeting the

demand of a scooter and a fridge. The father again

expressed his inability to meet this demand. Hence her

father sent her back after pacifying her. Similar is the

deposition of PW-5, the sister of the deceased and PW-7, the

brother-in-law of the deceased.

The afore referred to evidence, according to the

learned counsel for the appellant, may merely be an

expression of the desire to acquire a fridge, scooter etc.

and that by itself cannot be construed as an offence as this

would not come within the definition of `dowry' under

Section 2 of the Dowry Prohibition Act, 1961 read with

Section 304-B and 498 I.P.C. It is necessary to refer the

afore referred provisions.

Section 2 of the Dowry Prohibition Act, 1961 defines

`dowry' as under "-

"Definition of `dowry'- In this Act, `dowry' means any

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property or valuable security given or agreed to be

given either directly or indirectly.

[a] by one party to a marriage to the other party to

the marriage; or

[b] by the parents 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 dowry or

mehr in the case of persons to whom the Muslim

Personal Law (Shariat) applies.

Section 304-B(1) with Explanation of IPC is as also quoted.

"304-B Dowry death - (i) 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 or

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

caused her death.

Explanation - For the purposes of

this sub-section, "dowry" shall

have the same meaning as in Section

2 of the Dowry Prohibition Act,

1961 (18 of 1961).

Section 498-A is also quoted hereunder :

"498-A Husband or relative of

husband of a woman subjecting her

to cruelty - whoever, being the

husband or the relative of the

husband of a woman, subjects such

woman to cruelty shall be punished

with imprisonment for a term which

may extend to three years and shall

also be liable to fine.

Explanation - For the purposes of

this section, "cruelty" means-

[a] any wilful conduct which is of

such a nature as is likely to

drive the woman to commit

suicide or to cause grave

injury or danger to life, limb

or health (whether mental or

physical) of the woman; or

[b] harassment of the woman where

such harassment is with a view

to coercing here or any person

related to her to meet any

unlawful demand for any

property or valuable security

or is on account of failure by

her or any person related to

her to meet such demand.

The aforesaid 1961 Act was enacted to provide an

effective check to dowry deaths which were continuing

despite the then prevailing laws. The object of the Bill was

to prohibit the evil practice of giving and taking of dowry.

This objective was not achieved hence drastic amendments

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were brought in by amending various provisions of the said

Act and the related provisions under the Indian Penal Code

and the Evidence Act. Earlier, the definition of `dowry'

which was limited to the time at or before the marriage was

extended to the period even after the marriage by means of

Act 43 of 1986 w.e.f. November 19,1986. Similarly, Section

304-B was introduced by means of the same amending Act and

Section 498-A was introduced by Criminal Law (Second

Amendment) Act, 1983 (Act 46 of 1983). Various other

amendments were brought in bringing more stringent

provisions in the aforesaid 1961 Act in order to stem the

onslaught on the life of a married woman.

It is true, as argued by learned counsel for the

appellants, that in criminal jurisprudence benefit of doubt

is extendable to the accused. But that benefit of doubt

would arise in the context of the application of penal law,

and in the facts and circumstances of a case. The concept of

benefit of doubt has an important role to play but within

the confines of the stringency of laws. Since the cause of

death to a married woman was to occur not in normal

circumstances but as a `dowry death', for which the evidence

was not to easily available, as it is mostly confined to

within four walls of a house, namely husband's house, where

all likely accused reside. Hence the aforesaid amendments

brought in the concept of deemed `dowry death' by the

husband or the relatives, as the case may be. This deeming

clause has a role to play and cannot be taken lightly and

ignored to shield an accused, otherwise the very purpose of

the amendment will be lost. Of course, the prosecution has

to prove the ultimate essential ingredients beyond all

reasonable doubt after raising the initial presumption of

`deemed dowry death'.

Explanation to section 304-B refers to dowry "as having

the same meaning as in Section 2 of the 1961 Act", the

question is - what is the periphery of the dowry as defined

therein? The argument is, there has to be an agreement at

the time of the marriage in view of the words `agreed to be

given' occurring therein, and in the absence of any such

evidence it would not constitute to be a dowry. It is

noticeable, as this definition by amendment includes not

only the period before and at the marriage but also a period

subsequent to the marriage.

When words in statute are referable to more than one

meaning, the established rule of construction is found in

Heydon's case (1584) 76 E.R. 639 also approved by this Court

in Bengal Immunity Co. Ltd. V. State of Bihar & Ors., AIR

1955 SC 661 (674). The rule is to consider four aspects

while construing an Act :

[a] when was the law prior to the law which is sought

to be interpreted;

[b] when was the mischief or defect for which new law

is made;

[c] what is the remedy the law now provides; and

[d] what is the reason of the remedy.

The Court must adopt that construction which,

"suppresses the mischief and advances the remedy."

Applying this principle, it is clear that the earlier

law was not sufficient to check dowry deaths hence aforesaid

stringent provisions were brought in, so that persons

committing such inhuman crimes on married women should not

escape, as evidence of a direct nature is not readily

available except of the circumstantial kind. Hence it is

that interpretation which suppresses the mischief, subserves

the objective and advances the remedy, which would be

acceptable. Objective is that men committing such crimes

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should not escape punishment. Hence stringent provisions

were brought in by shifting the burden onto the accused by

bringing in the deemed clause. As aforesaid, the definition

of `dowry' was amended with effect from 19th November, 1986,

to include a period even after the marriage.

The offence alleged against appellants is under Section

304-B IPC which makes `demand of dowry' itself punishable.

Demand neither conceives nor would conceive of any

agreement. If for convicting any offender, agreement for

dowry is to be proved, hardly any offenders would come under

the clutches of law. When Section 304-B refers to `Demand of

dowry', it refers to the demand of property or valuable

security as referred to in the definition of `dowry' under

1961 Act. It was argued on behalf of the appellants that

mere demand of scooter or fridge would not be a demand for

dowry. We find from the evidence on record that within a few

days after the marriage, the deceased was tortured,

maltreated and harassed for not bringing the aforesaid

articles in marriage. Hence the demand is in connection with

marriage. The argument that here is no demand of dowry, in

the present case, has no force. In cases of dowry deaths and

suicides, circumstantial evidence plays an important role

and inferences can be drawn on the basis of such evidence.

That could be either direct of indirect. It is significant

that Section 4 of the 1961 Act, was also amended by means of

Act 63 of 1984, under which it is an offence to demand dowry

directly or indirectly from the parents or other relatives

or guardian of a bride. The word `agreement' referred to in

Section 2 has to be inferred on the facts and circumstances

of each case. The Interpretation that the appellant seeks,

that conviction can only be if there is agreement for dowry,

is misconceived. This would be contrary to the mandate and

object of the Act. "Dowry" definition is to be interpreted

with the other provisions of the Act including Section 3,

which refers to giving or taking dowry and Section 4 -

Penalty for demanding dowry, under the 1961 Act and the

Indian Penal Code. This makes it clear that even demand of

dowry on other ingredients being satisfied is punishable.

This leads to the inference, when persistent demands for TV

and scooter are made from the bride after marriage or from

her parents, it would constitute to be in connection with

the marriage and it would be a case of demand of dowry

within the meaning of Section 304-B IPC. It is not always

necessary that there be any agreement for dowry.

Reverting to the present case, the evidences of the

aforesaid PWs are very clear. After few days of the

marriage, there was demand of scooter and fridge, which when

not being met lead to repetitive taunts and maltreatment.

Such demands cannot be said to be not in connection with the

marriage. Hence the evidence qualifies to be demand for

dowry in connection with the marriage and in the

circumstances of the case constitutes to be a case falling

within the definition of `dowry' under Section 2 of 1961 Act

and Section 304-B IPC.

The next question is, whether there was any cruelty or

harassment by the deceased's husband or any relative and

that too it was soon before her death. The argument put in

is that neither there is any physical injury nor any

evidence of cruelty from any neighbours or other independent

persons; hence there is no cruelty or harassment. In our

considered opinion, cruelty nor harassment need not be

physical. Even mental torture in a given case would be a

case of cruelty and harassment within the meaning of Section

304-B and 498-A IPC. Explanation (a) to Section 498-A itself

refers to both mental and physical cruelty. In view of

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Explanation (a) the argument is, before it constitutes to be

a cruelty there has to be wilful conduct. Again wilful

conduct means, conduct wilfully done may be inferred by

direct or indirect evidence which could be construed to be

such. We find, in the present case, on account of not

satisfying the demand of the aforesaid goods, right from the

next day, she was repeatedly taunted, maltreated and

mentally tortured by calling her ugly etc. A girl dreams of

great days ahead with hope and aspiration when entering into

a marriage, and if from the very next day the husband

starts taunting for not bringing dowry and calling her ugly,

there cannot be greater mental torture, harassment or

cruelty for any bride. There was a quarrel a day before her

death. This by itself, in our considered opinion, would

constitute to be a wilful act to be a cruelty both within

the meaning of Section 498-A and Section 304-B IPC.

The argument, that There is no evidence of any cruelty

or harassment soon before her death, is also not correct.

We find both from the evidence of her sister, Trachala Devi

PW-5 and her brother-in-law, Ram Gopal PW-7, that the

deceased on 14th May, 1987 came to Shahdara (Delhi) to mourn

the death of her maternal uncle and by evening on the same

day instead of returning to her husband's place came to her

sister's house. She remained there for few days. Both

deposed that she told them that her husband was maltreating

her in view of dowry demand, and that not being satisfied

was harassing her. When on 17th May, 1987 the husband came

to take her back, she was reluctant but Trishala Devi

brought her down and sent her with her husband. Though she

went with the husband but with the last painful words that

"it would be difficult now to see her face in the future".

On the very next day, on 19th May, one day after she arrived

at her husband's place, the unfortunate death of Urmil took

place. She died admittedly on account of total burn of her

body. Admittedly the incident of quarrel as deposed was only

a day before her death. There is direct evidence that on

17th May itself, there was quarrel at the house of her

sister with the deceased and her husband. The quarrel

between the deceased and her husband was tried to be

explained as some other quarrel which should not constitute

to be a quarrel in connection with the marriage. We find

that Section 8-A of the aforesaid 1961 Act which came into

force w.e.f. 2nd October, 1985 for taking or abetting any

dowry, the burden to explain is placed on such person

against whom the allegation of committing an offence is

made. Similarly, under Explanation to Section 113-B of the

Indian Evidence Act, which was also brought in by the

aforesaid Act No. 43 of 1986, there is presumption that such

death is on account of dowry death. Thus the burden, if at

all, was on the accused to prove otherwise.

The aforesaid evidence would, on the facts and

circumstances of the case, bring to an inescapable

conclusion that the aforesaid quarrel referred to by PWs 5 &

7 a day before actual death of the deceased, cumulatively

with other evidence constitute to be cruelty and harassment

in connection with marriage and that too at her own sister's

place which has direct co-relation with the preceding

evidence of repeated demand of dowry, to be a case covered

both under Section 304-B and 498-A IPC. However, it was open

to the accused to prove otherwise or dispel by means of

evidence to destroy that deeming clause. But we find he has

not been able to do so. Such burden is placed on the accused

with a purpose. Evidence also concludes harassment to the

deceased within the meaning of Section 498-A Explanation

(b), as she was repeatedly coerced for not meeting the

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demands leading to her mental torture and agony which

ultimately led her to commit suicide.

In the present case, we find that both the courts below

found that inspite of thorough cross-examination, there is

no deviation on this issue. In fact, it has been pointed out

by the learned counsel for the respondent that on the

question of cruelty and torture, there is no cross-

examination though there is some on other points. The courts

below have rightly believed the testimonies of the PWs and

we do not find that there is anything for us to deviate from

the same. On the other hand, the evidence of the defence is

of perfunctory nature, not enough to dispel the burden cast.

A faint submission was also made that it would not be a

case of abetment of suicide under Section 306 IPC. Reference

to Section 107 IPC was also made where abetment should fall

under any of the three heads. Reliance is placed on the

first head. We find that the first head provides "instigates

any person to do that thing". There is no doubt in the

present case there is repeated demand from the husband's

side from the girl and her parents for the various articles

as aforesaid and on failure, the girl was tortured, harassed

by words and deeds, amounting to cruelty. As we have held

above and one day before the fateful day, the husband

saturated the mental agony and cruelty by quarrelling with

the wife (deceased) even at her sister's place, leaving no

option which led the deceased to commit suicide. This mental

state is further clear by the following words which she

spoke to her sister, "it would be difficult now to see her

face in the future". In our opinion all this would

constitute to be an act which would be an abetment for the

commission of the suicide by the girl. The husband, in the

present case, has not led any cogent evidence or brought any

circumstance to dislodge the aforesaid inference. Of course

benefit of doubt to the accused would be available provided

there is supportive evidence on the record. Hence, for

creating doubt or granting benefit of doubt, the evidence

was to be such which may lead to such doubt. We do not find

that present is a case where any benefit of doubt results at

least against the husband. There is direct evidence, as

stated by the aforesaid witnesses PWs 5 & 7 that soon before

her death she was subjected to cruelty by the husband.

However, we find in so far appellant Nos. 2 & 3, father-in-

law and the mother-in-law, are concerned, the evidence is of

a general nature. No convincing evidence has been led that

the deceased was subjected to cruelty by appellant Nos.2 &

3. Before holding that appellant Nos. 2 & 3 had committed

the offence, it had to be found that they are responsible

for subjecting her to cruelty or harassment, soon before her

death. We find in this case evidence is only confined to the

husband and not against appellant Nos. 2 & 3. Hence on the

evidence on record, so far as appellant Nos. 2 & 3 are

concerned, we extend to them the benefit of doubt and acquit

them.

Hence, for the aforesaid reasons, we partly allow the

appeal. Convictions and sentences of appellant No.1 are

maintained but the convictions and sentences of the

appellant Nos. 2 & 3 are set aside. Accordingly, appellant

No.1, namely Pawan Kumar is sentenced to 7 years' rigorous

imprisonment with a fine of Rs. 500/-, in default of payment

of fine for further rigorous imprisonment for 6 months under

Sec tion 304-B IPC, 4 years' rigorous imprisonment and to

pay a fine of Rs 200/-, in default payment of fine further

rigorous imprisonment for 3 months, under Section 306 IPC,

and sentence for 2 years' rigorous imprisonment and to pay

fine for Rs.200/-, and in default of payment of fine further

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rigorous imprisonment for three months, under Section 498-A

IPC. All the sentences would run concurrently. The other

appellants, namely appellants Nos. 2 & 3 are hereby

acquitted. They are on bail. They need not surrender to

their bail bonds. Their bail bonds are hereby discharged.

The appeal is allowed in part.