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Cruelty - Dowry Death

KANDE VENKATESH GUPTA ,
  05 August 2008       Share Bookmark

Court :
Supreme Court
Brief :
Demand of share of the wife in the ancestral property of the wife does not come within the meaning of "cruelty" defined in I.P.C.
Citation :
Not yet reported
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) No.7932 OF 2007)


Baldev Singh ...
Appellant


Vs.


State of Punjab ...Respondent


JUDGMENT


Dr. Arijit Pasayat, J.


1. Leave granted.



2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Punjab and Haryana High Court

dismissing the appeal filed by the appellant, while directing

acquittal of the co-accused Narinder Kaur. Learned Sessions

Judge, Amritsar, had convicted both, the present appellant

and Surjit Kaur for the offence punishable under Section 304-

1
B of the Indian Penal Code, 1860 (in short "IPC") and had

sentenced each of them to undergo rigorous imprisonment for

10 years and to pay a fine of Rs.1,000/- in default of payment

of fine to further undergo rigorous imprisonment for three

months. It is to be noted that Narinder Kaur had faced trial

along with the appellant Baldev Singh and Surjit Kaur but was

acquitted of the charges by the trial court.



3. The case of the prosecution is as under:-



Satwant Kaur @ Bholi was the sister of Rachhpal Singh

(PW-4) and was married with Baldev Singh accused on

8.6.1991. Within about a month of their marriage, differences

cropped up between the deceased and her husband as the

mother-in-law and husband of the deceased started

demanding a fridge and a T.V. Within three days of the

marriage, the mother of Bholi had died, at the anniversary of

their mother's death, Rachhpal Singh (PW-4) had collected a

sum of Rs.12,000/- from the sale of paddy and Rs.8,000/-

after encashing the National Saving Certificates and had given

2
an amount of Rs.20,000/- to Baldev Singh. According to the

complainant, for two months, after the payment there was no

quarrel, but thereafter accused Baldev Singh, his mother

Surjit Kaur and sister Narinder Kaur again started saying that

at the time of the marriage adequate jewellery had not been

given. The result was that the witness had again collected a

sum of Rs.20,000/- by encashing the Fixed Deposit Receipt

and paid the amount to Baldev Singh. In the month of

October, 1992, accused Baldev Singh had fixed a date for the

marriage of his younger brother and as the father of Rachhpal

Singh (PW-4) and Satwant Kaur had died, Baldev Singh

accused started asking for his share in the estate of his father-

in-law. In view of this, Rachhpal Singh and his brothers

Nirmal Singh and Avtar Singh had gone to the house of

Satwant Kaur and there they tried to persuade the accused

and other members of the family not to harass Satwant Kaur

@ Bholi and assured them that in due course they would meet

whatever was demanded by him. At this time Baldev Singh

and the members of his family had told that they were not

demanding any specific piece of land and that they would be

3
satisfied in case an amount of Rs.1,00,000/- was given.

Rachhpal Singh (PW-4) had then told accused Baldev Singh

that they had decided to hold the anniversary of his father's

death on 13th September, 1992 and they would pay the

accused the amount of Rs.1,00,000/- on that day. The details

regarding the harassment that was being faced by Satwant

Kaur were communicated by her to her brother Rachhpal

Singh from time to time in various letters that were written by

her. In these letters, (Ex. PW-4/A to Ex. PW-4/D) Satwant

Kaur had given the details of the demands by her husband

and in-laws and she had also been apprising her brothers of

the treatment given to her by her mother-in-law, sister-in-law

and the husband whenever she met them. On 2.9.1992

Rachhpal Singh had received a letter written by Satwant Kaur.

This letter had been brought from Amritsar to Chandigarh by

the wife of Amrik Singh, who in turn, had taken it to Pinjore to

deliver the same to Rachhpal Singh. After going through the

letter Rachhpal Singh had become very upset and had left for

Amritsar and reached there about 7-8 P.M. During the night,

he had stayed at the house of his second sister and in the

4
morning of 3.9.1992 he had gone to the house of Satwant

Kaur along with his brother-in-law Narinder Singh. On

reaching the house, he found that Satwant Kaur was lying on

a cot while her husband, sister-in-law and mother-in-law were

standing nearby. On seeing him, Satwant Kaur had again

indicated that the accused had harassed and beaten her

regarding her inability to bring more money. She had also

told Rachhpal Singh (PW-4) that she had consumed some

poisonous substance as a result of which, she would die and

requested him to ensure that the accused did not escape the

rigours of law. At this point of time, Rachhpal Singh found

the attitude of the accused very hostile and had told Narinder

Singh that they should try to move out of the house and come

back with some more relatives. Thereafter Rachhpal Singh and

Narinder Singh had gone away from the house of the accused

and with some relatives returned there at about 9.30 A.M.

When they reached the house, they found that none of the

accused was present in the house and even Satwant Kaur was

not present there. On enquiry, it transpired that Satwant

Kaur had been removed by the accused but the neighbourers

5
were not certain whether Satwant Kaur was dead or alive.

Fearing that the accused may try to burn the dead body, the

witness first went to the cremation ground and thereafter to

various doctors. At about 6/6.15 P.M. they reached Guru

Nanak Dev Hospital and found ASI Amrik Singh going inside

and before him Rachhpal Singh made statement Ex. PW-4/A,

which was reduced into writing and signed by the witness. He

then accompanied the police to the mortuary, where he saw

the dead body of Satwant Kaur.



Assistant Sub Inspector Amrik Singh (PW-7) had gone to

Guru Nanak Dev Hospital, Amritsar after receipt of

information regarding the death of Satwant Kaur and on

reaching the hospital, had met Rachhpal Singh (PW-4) and

recorded his statement. He thereafter made his endorsement

thereon and sent the same to the police station for recording

the formal FIR, Ex. PW-7/B. He had gone to the mortuary,

prepared inquest report Ex. PW-1/B and got done the post-

mortem on the dead body. Dr. R.K. Gorea (Pw-1) conducted

the post mortem examination on 4.9.1992 at 5.00 P.M., who

6
gave his opinion that the cause of death in this case was due

to poisoning with organo phosphorus group of insecticide,

which was sufficient to cause death in the ordinary course of

nature. The Investigating Officer recorded the statements of

the witnesses and prepared rough site plan. On completion of

necessary investigation, accused were sent up for trial.



After the charge sheet was filed under Section 304-B IPC,

trial was held as the accused persons pleaded innocence. In

order to prove its case, the prosecution examined 7 witnesses.

In the statements recorded under Section 313 of the Code of

Criminal Procedure, 1973 (in short `Cr.P.C.'), accused persons

took the stand that they were falsely implicated in this case.



The trial court relied upon the evidence of PW.4 and

PW.5 and found that their evidence was clear and cogent to

the effect that the deceased was being harassed for not

bringing adequate dowry and though some of the demands

were satisfied by the relatives, the demands persisted. On

account of such persistent demands, the deceased felt

7
harassed and consumed poison and had ultimately died as a

result thereof. With reference to the evidence of Dr. R.K.

Gorea, PW.1, it was noted that the death of the deceased was

as a result of consuming organo phosphorus group of

insecticide and the death was unnatural and had taken place

within 7 years of the date of marriage. The trial court,

accordingly, found the appellant and Surjit Kaur guilty while

directing acquittal of Narinder Kaur.



In appeal, the stand taken by the appellant was that with

a view to falsely implicate the accused persons, the case was

lodged. It was submitted that the deceased was deprived of

her legitimate share in the ancestral property and because of

this she was in mental depression leading to her committing

suicide. It was pointed out that if the appellant on behalf of

the deceased had asked for her legitimate share in the

ancestral property that does not amount to dowry demand.

The prosecution, on the other hand, relied on the evidence of

PW.4 and PW.5 to show that the demand was not restricted

only to the share in the ancestral properties but also to the

8
other demands which were nothing but dowry demands. The

High Court found substance in the plea of the prosecution

and upheld the conviction.



4. In support of the appeal, learned counsel for the

appellant submitted that the evidence of PW.4 and PW.5

should not have been relied upon. The stand taken before the

High Court that the demand related to the share in the

ancestral property and cannot be termed as dowry demand

was reiterated. Additionally, it was submitted that custodial

sentence of 10 years as imposed is harsh.



5. Learned counsel for the Respondent-State, on the other

hand, supported the judgment of the trial court as upheld by

the High Court qua the appellant.



6. In order to attract Section 304B IPC, the following

ingredients are to be satisfied.




9
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 7 years of

the marriage.

iii) Soon before her death, the woman must have

been subjected to cruelty or harassment by her

husband or any relative of her husband; and

iv) Such cruelty or harassment must be in

connection with the demand of dowry.



7. In the instant case the marriage took place on 8.6.1991

and the death took place on 3.9.1992 other than in normal

circumstances within 7 years of the marriage. The evidence of

PW.4 and PW.5 were to the effect that the demand of dowry

was made just before the deceased committed suicide.



8. 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

10
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 - 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,
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 purpose 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 her or
any person related to her to meet any

11
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."



9. 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' - In this Act,
`dowry' means any 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 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


12
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)."



10. 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" 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).



11. 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



13
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

14
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.


12. 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 - 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)."




15
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 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:

16
(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.



13. 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


17
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

18
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 in time and has become

stale enough not to disturb mental equilibrium of the woman

concerned, it would be of no consequence.



14. It is true that demanding of her share in the ancestral

property will not amount to a dowry demand, but the evidence

of PW.4 and PW.5 shows that the demands were in addition to

the demand for her share in the ancestral property. Certain

letters which were brought on record clearly establish the


19
demand for dowry. The conviction as recorded by the trial

court and upheld by the High Court does not warrant any

interference. However, the custodial sentence appears to be

on the higher side. The same is reduced to the minimum

prescribed i.e. 7 years. In the ultimate result, with the

modification of sentence, the appeal stands disposed of.




................................J.
(Dr. ARIJIT PASAYAT)


................................J.
(HARJIT SINGH BEDI)
New Delhi;
August 4, 2008




20
 
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