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CASE NO.:

Appeal (crl.) 384 of 1998

PETITIONER:

The State of Andhra Pradesh

RESPONDENT:

Raj Gopal Asawa and Anr.

DATE OF JUDGMENT: 17/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

The State of Andhra Pradesh has questioned legality of

the judgment rendered by a Division Bench of the Andhra

Pradesh High Court holding respondents to be not guilty of

the alleged offences for which the Trial Court had convicted

them i.e. offences punishable under Section 304B and Section

498A of the Indian Penal Code 1860 (for short 'the IPC').

Three persons faced trial relating to the alleged suicidal

death of one Mangala (hereinafter referred to as 'the

deceased'). A-3 was her husband, while A-1 and A-2 were her

brother-in-law and mother-in-law respectively. During the

pendency of the appeal before the High Court, A-2 expired

and the appeal was held to be abated so far she was

concerned.

Accusations which led to the trial were as follows:

The deceased and A-3 were married on 6.7.1989.

Admittedly, the accused committed suicide at about 11.30

a.m. on the date of occurrence i.e. 2.4.1990. The accused

persons took her to the hospital where she was declared to

be dead. The Inspector of Police sent a complaint to the SHO

to register a case. FIR was registered and investigation was

undertaken. On completion of investigation, charge sheet was

placed and the accused persons faced trial. They pleaded

innocence. To further the prosecution version 10 witnesses

were examined while to substantiate its plea of innocence,

accused persons examined 12 witnesses. The Trial Court found

that the evidence of PWs 2, 3, 4 and 6 about the demand of

dowry made by A-1 and A-2 was cogent and credible. A-3 was

held guilty as he extended tacit support, albet indirectly.

Placing reliance on the evidence of PWs 2, 3, 4 and 6 it was

held that the demand of dowry has been clearly established.

Though it was noticed that there was no direct evidence of

A-3, the husband making any demand of dowry, his silence was

construed to be an act of endorsing the demand and he was,

as noted above, held guilty.

In the appeal before the High Court the primary stand

taken was that there was no evidence to show about any

agreement or demand for payment of dowry before the

marriage. Even if any subsequent demand was made as alleged,

that cannot bring in application of Section 304B IPC. It

was further submitted that no grievance has been ever made

before DW-1, the eldest member of the family of the accused

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persons about the alleged demand. It was the case of PWs 2,

3, 4 and 6 that any demand was made before the marriage. The

High Court by the impugned judgment held that on the grounds

urged by the accused persons, conviction cannot be

maintained. With reference to a decision of the Andhra

Pradesh High Court in Ayyala Rambabu v. State of Andhra

Pradesh (1993 (1) ALT (Crl.) 73) it was held that to

constitute "dowry", the demand should be made directly or

indirectly, either at the time of marriage, or before the

marriage or at any time after the marriage in connection

with the marriage of the parties. If there was no agreement

between the parties to give or take any property or valuable

security or where the property or valuable security has been

given or taken but thereafter further amounts are demanded

after the marriage, such demands will not fall within the

meaning of dowry. So far as A-3 is concerned, it was held

that there was no evidence of his having ever demanded

dowry.

Mr. G. Prabhakar, learned counsel for the State

submitted that the legal position has not been properly

appreciated by the High Court. The view taken that

subsequent demand does not constitute dowry is clearly

untenable. Further, the conclusion that the demand of dowry

has not been established merely because no grievance was

made before the father-in-law (DW-1) cannot be a ground to

discard the credible evidence of PWs 2, 3, 4 and 6.

In response, learned counsel for the accused-

respondents submitted that the view taken by the High Court

both on the interpretation of the term "dowry" and the

factual aspects is correct. Further in order to attract

application of Section 304B, there must be a proximity link

of the demand with the alleged suicide. In the absence of

any evidence in that regard, the conviction has been rightly

set aside. Further, there being no demand of any dowry by

the respondent (A-3), the judgment of the High Court so far

as he is concerned, does not suffer from any infirmity.

Sections 304B and Section 498A read as follows:

"304-B. 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 caused her death.

Explanation \026 For the purpose of this sub-

section 'dowry' shall have 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."

"498-A: Husband or relative of husband of a

woman subjecting her to cruelty- Whoever,

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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 \026 For the purpose of this

section 'cruelty' means \026

(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 her 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 term "dowry" has been defined in Section 2 of the

Dowry Prohibition Act, 1961 (in short 'Dowry Act') as

under:-

"Section 2. Definition of 'dowry' \026 In this

Act, 'dowry' means any property or valuable

security given or agreed to be given either

directly or indirectly \026

(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 dower or mehr

in the case of persons to whom the Muslim

personal law (Shariat) applies.

Explanation I- For the removal of doubts, it

is hereby declared that any presents made at

the time of a marriage to either party to

the marriage in the form of cash, ornaments,

clothes or other articles, shall not be

deemed to be dowry within the meaning of

this section, unless they are made as

consideration for the marriage of the said

parties.

Explanation II- The expression 'valuable

security' has the same meaning in Section 30

of the Indian Penal Code (45 of 1860)."

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

the same meaning as in Section 2 of the 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"

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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 the period subsequent to

the marriage. This position was highlighted in Pawan Kumar

and Ors. v. State of Haryana (1998 (3) SCC 309).

The offence alleged against the respondents 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

the Act. The argument that there 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 or indirect. It is significant

that Section 4 of the 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 respondents seek,

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 which

deals with a penalty for demanding dowry, under the Act and

the IPC. This makes it clear that even demand of dowry on

other ingredients being satisfied is punishable. It is not

always necessary that there be any agreement for dowry.

Section 113-B of the Evidence Act is also relevant for

the case at hand. Both Section 304-B IPC and Section 113-B

of the Evidence Act were inserted as noted earlier by the

Dowry Prohibition (Amendment) Act 43 of 1986 with a view to

combat the increasing menace of dowry deaths. Section 113-B

reads as follows:-

"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 \026 For the purposes of this

section 'dowry death' shall have the same

meaning as in Section 304-B of the Indian

Penal Code (45 of 1860)."

The necessity for insertion of the two provisions has been

amply analysed by the Law Commission of India in its 21st

Report dated 10th August, 1988 on 'Dowry Deaths and Law

Reform'. Keeping in view the impediment in the pre-existing

law in securing evidence to prove dowry related deaths,

legislature thought it wise to insert a provision relating

to presumption of dowry death on proof of certain

essentials. It is in this background presumptive Section

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113-B in the Evidence Act has been inserted. As per the

definition of 'dowry death' in Section 304-B IPC and the

wording in the presumptive Section 113-B of the Evidence

Act, one of the essential ingredients, amongst others, in

both the provisions is that the concerned woman must have

been "soon before her death" subjected to cruelty or

harassment "for or in connection with the demand of

dowry". Presumption under Section 113-B is a presumption

of law. On proof of the essentials mentioned therein, it

becomes obligatory on the Court to raise a presumption that

the accused caused the dowry death. The presumption shall

be raised only on proof of the following essentials:

(1) The question before the Court must be

whether the accused has committed the dowry

death of a woman. (This means that the

presumption can be raised only if the

accused is being tried for the offence under

Section 304-B IPC).

(2) The woman was subjected to cruelty or

harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or

in connection with any demand for dowry.

(4) Such cruelty or harassment was soon

before her death.

A conjoint reading of Section 113-B of the Evidence Act

and Section 304-B IPC shows that there must be material to

show that soon before her death the victim was subjected to

cruelty or harassment. Prosecution has to rule out the

possibility of a natural or accidental death so as to bring

it within the purview of the 'death occurring otherwise than

in normal circumstances'. The expression 'soon before' is

very relevant where Section 113-B of the Evidence Act and

Section 304-B IPC are pressed into service. Prosecution is

obliged to show that soon before the occurrence there was

cruelty or harassment and only in that case presumption

operates. Evidence in that regard has to be led by

prosecution. 'Soon before' is a relative term and it would

depend upon circumstances of each case and no strait-jacket

formula can be laid down as to what would constitute a

period of soon before the occurrence. It would be hazardous

to indicate any fixed period, and that brings in the

importance of a proximity test both for the proof of an

offence of dowry death as well as for raising a presumption

under Section 113-B of the Evidence Act. The expression

'soon before her death' used in the substantive Section 304-

B IPC and Section 113-B of the Evidence Act is present with

the idea of proximity test. No definite period has been

indicated and the expression 'soon before' is not defined.

A reference to expression 'soon before' used in Section 114.

Illustration (a) of the Evidence Act is relevant. It lays

down that a Court may presume that a man who is in the

possession of goods 'soon after the theft, is either the

thief has received the goods knowing them to be stolen,

unless he can account for his possession. The determination

of the period which can come within the term 'soon before'

is left to be determined by the Courts, depending upon facts

and circumstances of each case. Suffice, however, to

indicate that the expression 'soon before' would normally

imply that the interval should not be much between the

concerned cruelty or harassment and the death in question.

There must be existence of a proximate and live-link between

the effect of cruelty based on dowry demand and the

concerned death. If alleged incident of cruelty is remote

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in time and has become stale enough not to disturb mental

equilibrium of the woman concerned, it would be of no

consequence.

The above position was highlighted in Hira Lal and

Ors. v. State (Govt. of NCT), Delhi (2003(8) SCC 80) and in

Vidhya Devi and Anr. v. State of Haryana (JT 2004 (1) 609).

Their accusations have been clearly established so far

as A-1 is concerned. The evidence of PWs 2, 3, 4 and 6 are

clear, cogent and trustworthy. They have categorically

spoken about the demand as made by A-1 and A-2. Therefore,

the High Court was not justified in holding that no demand

was made. Learned counsel for the accused-respondent

submitted that there is no definite evidence about demand

soon before the death. In view of the fact that the death

occurred within the very few months of the marriage, and

the evidence of PWs 2, 3, 4 and 6 that shortly before the

deceased committed suicide, demand of dowry was made, the

plea is untenable. The accusations clearly stand

established so far as A-1, respondent no.1 is concerned. So

far as accused A-3 is concerned, there is no evidence that

he ever made any demand of dowry. The inference that he had

extended tacit approval for the demand is based on mere

surmises and conjectures without any material to

substantiate it. Therefore, the acquittal so far he is

concerned, does not call for any interference, though for

reasons different from those indicated by the High Court.

In the ultimate result the appeal is allowed so far

respondent no.1 - A-1 is concerned while it is dismissed so

far as respondent no.2 - A-3 is concerned. Custodial

sentence of 7 years would meet the end of justice for

respondent no.1 - A-1. He shall surrender to custody to

serve remainder of sentence. Bail bonds of respondent

no.2 - A-3 be cancelled.

The appeal is allowed to the extent indicated.