Allahabad High Court
Nagendra Kumar & Others vs The State on 3 February, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Criminal Appeal No. 488 of 1996
1. Nagendra Kumar
2. Raghvendra Kumar
3. Pradeep Kumar
All S/o Late Sri Shatrohan Lal,
R/o Village-Bhitaura,
P.S.- Mehmoodabad
District-Sitapur
.......Appellants
Vs.
The State .......Respondent
AND
Criminal Appeal No. 436 of 1996
1. Smt. Gyanwati wife of Nagendra Kumar
2. Smt.Pushpa Devi wife of Raghvendra Kumar
3. Smt. Vishuna Devi wife of Shatrohan Lal
All residents of Village Bhitaura
P.S-. Mehmoodabad.
District-Sitapur
.......Appellants
Vs.
The State . . ..Respondent
xxxxxx
Hon'ble Anil Kumar Srivastava II,J.
1. Heard Shri Shikhar Anand, learned counsel appearing for accused appellants Raghvendra Kumar and Pushpa Devi and Shri Anil Kumar, learned counsel appearing for accused Nagendra Kumar and Gyanwati.
2. Instants appeals have been filed against the impugned judgment and order dated 03.10.1996 passed by IVth Additional District and Sessions Judge, Sitapur in Session Trial No.74 of 1991, State Vs. Shatrohan Lal and others arising out of case crime no. 141 of 1988, under sections 498A, 304B and 201 Indian Penal Code (In short ''IPC'), Police Station Mehmoodabad, District Sitapur, whereby the learned trial court has convicted and sentenced accused appellants Nagendra Kumar, Raghvendra Kumar and Pradeep Kumar under section 304B IPC for seven years' rigorous imprisonment each, under section 498A IPC for seven months' rigorous imprisonment each and accused appellants Smt. Gyanwati, Smt. Pushpa Devi and Smt. Vishuna Devi under section 498A IPC for seven months' rigorous imprisonment each. It was ordered that all the sentences shall run concurrently.
3. Accused appellants Pradeep Kumar, husband of the deceased and Vishuna Devi, mother-in-law of the deceased died pending appeal. Hence their appeal stands abated.
4. According to the prosecution version a First Information Report (in short ''FIR') was lodged by one Visheshwar Dayal, complainant, father of the deceased Pushpa Devi. An application was moved by him on 6.8.1988 stating therein that the marriage of her daughter namely Pushpa Devi was performed with Pradeep Kumar alias Deepu about four years back from the date of incident. He had given Rs. 15000/- in cash and other articles in the marriage, but Satrohan Lal (father-in-law), Smt. Vishuna Devi (mother-in- law), Pradeep Kumar alias Deepu (husband), Nagendra Kumar (Jedh), wife of Nagendra Kumar namely Gyanwati (Jedhani), Raghvendra Kumar (Jeth) and wife of Raghvendra Kumar namely Pushpa Devi were not satisfied with the dowry and were demanding a motor cycle and colour TV. They were not sending Pushpa Devi to her parental house and used to torture her. Pushpa Devi went to her parental house in the last month of the incident when her mother got injuries. Accused have beaten her and asked her that she should come with motor cycle and colour TV. Thereafter she was again sent to her in laws house.
5. In the night of 23.7.1988, accused Raghvendra Kumar came to the house of the complainant and told that Pushpa Devi has died of Cholera, then the complainant reached in laws house of Pushpa Devi in the morning, where he did not found the dead body of Pushpa Devi. He came to know that she has been cremated in the preceding evening. He came to know from Khushiram, his son and others that Pushpa Devi has been done to death on 22.7.1988 by poisoning. On the basis of the application, case at crime no. 141 of 1988 under sections 304B, 498A and 201 IPC was registered at police station Mehmoodabad, District Sitapur. Investigation was handed over to the Circle Officer, who has recorded the statements of the witnesses. Since the dead body of Pushpa Devi has already been cremated, the inquest proceedings could not be held and the post-mortem was also not done. After concluding the investigation, the investigating officer has submitted the final report in the matter.
6. Learned Magistrate did not satisfy with the final report and rejected the same and summoned the accused under sections 304B and 498A IPC.
7. Accused Shatrohan lal, Nagendra Kumar, Raghvendra Kumar, Pradeep Kumar, Smt. Gyanwati, Smt. Pushpa Devi and Smt. Vishuna Devi were charged under sections 304B and 498A IPC by the trial court.
8. During pendency of trial, accused Shatrohan Lal died and his case was abated by the learned trial court.
9. Statements of P.W.1 Visheshwar Dayal, P.W.2 Suresh Kumar son of Visheshwar Dayal, P.W.3 Suresh Kumar son of Khushiram, P.W.4 Khushiram and P.W.5, Constable Vishnu Datt Shukla were recorded.
10. Statement of Rajendra Kumar Singh, Circle Officer, Investigating Officer was also recorded as D.W.1.
11. In the statement under section 313 Cr.P.C. the accused have stated that deceased died due to ailment of cholera and other allegations levelled against the accused have been denied by them.
12. Learned trial court after appreciating the evidence on record recorded a finding of guilt against the accused. Hence this appeal.
13. During pendency of the appeal accused Pradeep Kumar, husband of the deceased and Smt. Vishuna Devi, mother in law of the deceased have expired. Hence their appeal stand abated.
14. Now before this Court there are only four accused namely Nagendra Kumar and Raghvendra Kumar, who are Jedh (elder brothers of husband of the deceased) and Smt. Gyanwati and Pushpa Devi, who are the Jedhani (wife of elder brothers of the husband of the deceased) are before this Court.
15. Learned counsel for the appellants submits that FIR was lodged with delay. Delay has not been explained. Incident took place on 22.7.1008 while FIR was lodged on 6.8.1988. This delay could not be properly explained by the prosecution. It is further submitted that there are only general allegations against the appellants, who have no role in the matter. They are Jedh and Jedhani. They are living separately. It is further submitted that there is no allegation against the appellants that they have tortured the deceased for bringing the dowry or they have caused the death of the deceased. There are material contradictions in the evidence of two witnesses namely P.W. 1 Visheswar Dayal and P.W. 2 Suresh Kumar. He further submitted that P.W. 3 Suresh Kumar and P.W.4 Khushiram, who have informed the complainant about the poisoning of the deceased were turned hostile. It is further submitted that from the prosecution version, it is a case of poisoning, but there is neither any viscera report nor postmortem was done. Accused Raghvendra Kumar himself had gone to the parental house of the deceased. He informed the parents of the deceased about the death, hence his conduct could not said to be unnatural, rather it was a natural conduct. The deceased was cremated in the evening of 22.7.1988 and the information about the death of the deceased was given by accused Raghvendra Kumar in the night of 22.7.1988 to the parents of the deceased. An explanation has been given by the appellants that deceased died in her in laws house due to cholera.
16. Per contra, learned AGA submits that the prosecution has successfully proved the case against the accused appellants. Deceased was cremated hurriedly so that her parents could not reach to her in laws house. This conduct itself creates suspicion about the conduct of the accused. It is further submitted that delay is duly explained by P.W. 1 Visheshwar Dayal, who has stated that he was running from pillar to post, but the report was not being lodged by the police. It is further submitted that there is nothing on record to say that the accused appellants were living separately, rather they have demanded and tortured the deceased for bringing motor cycle and colour TV. Thus, the prosecution has successfully proved the case against the accused appellants.
17. At the very outset accused appellants Smt. Gyanwati and Pushpa Devi have been convicted and sentenced under section 498A IPC only.
Section 498A IPC reads as under:-
"498A. 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 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.]"
18. So far as necessary ingredients of section 498A IPC are concerned, it was incumbent upon the prosecution to prove that the demand of dowry was made by the appellants. Further Accused appellants Nagendra Kumar and Raghvendra Kumar were convicted and sentenced under section 498A and 304B IPC.
19. In order to prove its case under section 304B IPC, the prosecution is obliged to prove the following necessary ingredients of section 304B IPC.
" 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.--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."
20. In a large number of decisions, the Hon'ble Apex Court has indicated the ingredients of Section 304-B IPC, which are now broadly accepted. In Pawan Kumar V. State of Haryana (1998) 3 SCC 309 the ingredients were identified as : SCC p. 314, para 6)-
"[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."
(emphasis in original)
21. The ingredients of Section 304-B IPC were rephrased in Kans Raj V. State of Punjab (2000 ) 5 SCC 207 in the following words: (SCC p. 217, para 9).
"(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected to soon before her death. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death."
The expression "otherwise than under normal circumstances' was explained to mean "death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury."
22. A Somewhat recent exposition is to be found in Hira Lal v. State (Govt. of NCT of Delhi) (2004) 8 SCC 80 wherein the Hon'ble Apex Court held that to attract the application of Section 304-B IPC, the essential ingredients are as follows: (SCC p. 85, para 8) "(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."
23. More recently the ingredients of Section 304-B IPC have been abbreviated in Bakshish Ram v. State of Punjab (2013) 4 SCC 131 in the following words:
(SCC p. 136. para 14) "(a) that a married woman had died otherwise than under normal circumstances;
(b) such death was within seven years of her marriage; and
(c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death."
24. This "formula", though framed in different words by the Hon'ble Apex Court, from time to time, conveys the same meaning of the essential ingredients of an offence punishable under Section 304-B IPC.
25. Importantly, Section 304-B 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 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 304-B IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and 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 a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.
26. The evidentiary value of the identification is stated in Section 113-B of the Evidence Act, 1872 (the Act). The key words in this section 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 113-B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her.
Section 113-B of the Act 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 304B, of the Indian Penal Code, (45 of 1860)."
27. That the presumption under Section 113-B of the Act is mandatory may be contrasted with Section 113-A of the Act which was introduced contemporaneously. Section 113-A of the Act, dealing with abetment to 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.
28. On the question of burden of proof, the Apex Court referred to Section 113-B of the Act and held in para-19 of the Report: (Pawan Kumar Case, SCC p. 319 (Supra).
"19....... 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."
29. In Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, a Bench of three Judges of the Hon'ble Apex Court elucidated the requirements of Section 304-B IPC read with Section 113-B of the Act and contrasted it with Section 113-A of the Act. Paras 27 to 30 are extremely important in this context and are reproduced below: (SCC pp. 586-87).
"27. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances ''the court shall presume that such person had caused dowry death'."
Under Section 4 of the Evidence Act:
"Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
30. So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the Court. However, it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."
31. In Yashoda v. State of M.P. (2004) 3 SCC 98, the Hon'ble Apex Court held that once the ingredients of Section 304-B IPC are fulfilled, the onus shifts to the defence to produce evidence to rebut the statutory presumption and to whom that the death was in the normal course with which the accused were not connected. This is what was said: (SCC p. 103, para 13).
"13.......Once the prosecution proves the facts which give rise to the presumption under Section 304-B IPC, the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The defence may adduce evidence in support of its defence or may make suggestions to the prosecution witnesses to elicit facts which may support their defence. The evidence produced by the defence may disclose that the death was not caused by them, or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. In the instant case if the defence wanted to prove that the deceased had suffered from diarrhoea and vomiting and that resulted in her death, it was for the defence to adduce evidence and rebut the presumption that arose under Section 304-B IPC. The defence could have examined the doctor concerned or even summoned the record from the hospital to prove that in fact the deceased has suffered such ailment and had also been treated for such ailment."
32. In Nallam Veera Stayanandam v. Public Prosecutor, (2004) 10 SCC 769 the Hon'ble Apex Court specifically adverted to an accidental death and the applicability of Section 304-B IPC as well as the presumption under Section 113-B of the Act and held: (SCC p. 772, para 5) "5.......It is true from the evidence led by the prosecution it has been able to establish that the appellants were demanding dowry which was a harassment to the deceased. It is also true that the death of the deceased occurred within 7 years of the marriage, therefore, a presumption under Section 113-B of the Evidence Act is available to the prosecution, therefore, it is for the defence in this case to discharge the onus and establish that the death of the deceased in all probability did not occur because of suicide but was an accidental death."
33. Similarly, in Sharad v. State of Maharashtra (2012) 5 SCC 548, the Hon'ble Apex Court was again concerned with an accidental death. This Court referred to Section 113-B of the Act to conclude that the burden of proving that it was an accidental death was upon the accused. It was held: (SCC p. 551, para-8) "8. The counsel for the appellant next tried to advance the plea that it was in fact a case of accidental burn and Savita caught fire by falling down on the chulha. It is seen above that Savita died from burn injuries within two and a half year of her marriage with the appellant. It is also established that soon before her death she was subjected to cruelty or harassment by the appellant in connection with the demand for the unpaid amount of the dowry. All the three facts and circumstances put together clearly attracts the provision of Section 113-B of the Evidence Act and the burden lay upon the appellant to prove the defence plea that it was a case of accidental burn. There is, however, no evidence on record even to remotely support the plea of accidental burn."
34. Finally, in Pathan Hussain Basha v. State of A.P (2012) 8 SCC 494, the Hon'ble Apex Court reiterated that the burden of proving the innocence of the accused or rebutting the statutory presumption is on him and not on the prosecution which has only to prove that the ingredients of an offence of dowry death are made out. It was held: (SCC p. 603, para 17) "17. Applying these principles to the facts of the present case, it is clear that the ingredients of Section 304-B read with Section 498-A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal."
35. A discordant note on the issue of burden of proof in an accidental death was struck in Hira Lal's case (supra) wherein the Hon'ble Apex Court conjointly read Section 304-B IPC and Section 113-B of the Act. It was held that the onus is on the prosecution to rule out the possibility of a natural and accidental death. It was held in para 9 of the Report as follows: (SCC p. 86) "9. 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'."
These very words were repeated, almost in identical terms, in Kunhiabdulla v. State of Kerala (2004) 4 SCC 13, State of A.P. v. Raj Gopal Asawa (2004) 4 SCC 470 and in Kamesh Panjiyar v. State of Bihar (2005) 2 SCC 388 that it is for the prosecution to show that the dowry death was not natural or that it was accidental.
36. This view has recently been followed in Bakshish Ram (Supra) wherein it was held that: (SCC p. 138, para 19).
"19...... [A] perusal 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. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of ''death occurring otherwise than in normal circumstances'. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates."
37. In Suresh Kumar Vs. State of Haryana (2013) 16 SCC 353, Hon'ble the Apex Court has held that:-
"We are, of course, bound by the decision of a larger Bench of this Court in Multtani. Following that decision, we must hold that the initial burden of proving the death of a woman within seven years of her marriage in circumstances that are not normal is on the prosecution; such death should be in connection with or for a demand of dowry which is accompanied by such cruelty or harassment that eventually leads to the woman's death in circumstances that are not normal. After the initial burden of a deemed dowry death is discharged by the prosecution, a reverse onus is put on the accused to prove his innocence by showing, inter alia, that the death was accidental."
38. The following necessary ingredients of section 304-B IPC are follows:-
(i). "The death of a woman should be caused by burns or fatal injury or otherwise than under a normal circumstance.
(ii) such a death should have occurred within seven years of her marriage.
(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) such cruelty or harassment should be for or in connection with demand of dowry.
(v) to such cruelty or harassment the deceased should have been subjected to soon before her death."
39. So far as necessary ingredients of section 304-B IPC are concerned, admittedly marriage of the deceased was performed with Pradeep Kumar before four years of the date of incident. Secondly, she died in her in laws house. Now it is to be seen as to whether there is any evidence that she was being tortured for motor cycle and colour TV ''soon before her death'?. Whether she died in abnormal circumstances?
40. In Ramaiah alias Rama VS. State of Karnataka (2014) 9 SCC 365, there was a delay in lodging the FIR., the Hon'ble Apex Court has held that the delay in lodging the FIR per se may not render prosecution case doubtful as there may be various reasons for lodging the FIR with some delay. However, in such cases, the prosecution need to offer some explanation for the delay.
Expression ''soon before her death' has been dealt with by the Hon'ble Apex Court in Surinder Singh Vs. State of Haryana (2014) 4 SCC 129, wherein it was held in para 17 and 18:-
17. "Thus, the words 'soon before' appear in Section 113B of the Indian Evidence Act, 1872 and also in Section 304B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words 'soon before' is, therefore, important. The question is how 'soon before'? This would obviously depend on facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for along time. Therefore, 'soon before' is a relative term. In matters of emotions we cannot have fixed formula. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
18. In this connection we may refer to judgment of this Court in Kans Raj v. State of Punjab[5] where this Court considered the term 'soon before'. The relevant observations are as under: "... ... ... "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death.
It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non- existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."
Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law."
41. P.W.1 Visheshwar Dayal, complainant, father of the deceased has stated that a demand of motor cycle and colour TV was being made by the accused appellants. There is general statement. No specific assertion has been made against the accused appellants that they have made any demand or tortured the deceased in any manner.
42. P.W.2 Suresh Kumar is the brother of the deceased, who has also made the same statement that the general demand was being made, but no specific allegations have been levelled against the appellants that they have caused death to the deceased or they have made the demand and tortured her for brining the dowry.
43. So far as P.W.3 Suresh Kumar and P.W. 4 Khushiram are concerned, they have turned hostile and no support could be made by the prosecution from their evidence.
44. So far as P.W.1 and P.W. 2 are concerned, who are father and brother of the deceased. Both the witnesses have stated that Raghvendra Kumar had come to their house to inform about the death of the deceased in the evening of 22.07.1988.
45. Intention of a person can only be gathered by the attending circumstances and conduct of the person before or after the incident. Accused Raghvendra Kumar is the Jedh of the deceased. Admittedly, he went to the parental house of the deceased to inform the parents about the death of their daughter namely Pushpa Devi. Then they reached next day at in laws house of the deceased. There is nothing on record to show that any action was taken by the accused hurriedly, rather P.W.1 Visheshwar Dayal has stated in the examination-in-chief that Raghvendra Kumar had reached his house and said that his daughter has died. He may go to see her last time. This conduct of the accused itself shows that if the accused would have administered the poison to the deceased, then Raghvendra Kumar should not have gone there to inform the parents of the deceased, rather he could have reached there after cremating the dead body.
46. At this juncture, it is also relevant that FIR was registered by the S.H.O. himself on the application of P.W.1 Visheshwar Dayal on 6.8.1988, meaning thereby that for about fifteen days no allegations were levelled against the accused by the father of the deceased. In such circumstances, delay attains importance. Delay could have been well explained if the concerned S.O could not have registered the FIR, but the allegations levelled in the FIR are negatived by the registration of the FIR that the police was not registering the FIR and when the complainant threatened that he will go to the Superintendent of Police then FIR was registered. Explanation of P.W.1 Visheshwar Dayal and P.W.2 Suresh Kumar about the delay in lodging the FIR is not satisfactory.
47. Delay in lodging the FIR coupled with the conduct of accused Raghvendra Kumar is to be seen keeping in the view the evidence of P.W.1 Visheshwar Dayal and P.W. 2 Suresh Kumar.
48. C.W.1 Rajendra Kumar Singh, Deputy Superintendent of Police, who was the investigating officer of the case, had stated that he did not find any evidence under sections 498A and 304B IPC against the accused appellants, hence final report was submitted. Rather it is stated by the investigating officer that in the cross examination, Dr. Ram Narayan Verma has given a statement that he had treated the victim and she died due to cholera. This statement supports the defene version that the deceased died due to cholera and not due to poisoning.
49. So far as the question of death in abnormal circumstances is concerned, in view of the statement that the doctor had treated the deceased and she died of cholera, it cannot be accepted that the death of deceased was in abnormal circumstances.
50. So far as cruelty ''soon before her death' or cruelty for demand of dowry is concerned, there is nothing on record to prove the factum. Necessary ingredients of section 304B IPC could not be proved by the prosecution, hence no question of presumption under section 113B of Indian Evidence Act arises.
51. A reading of Section 304B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied.
52. In view of the discussion made above, this Court is of the opinion that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. Accused appellants are entitled for acquittal and the impugned judgment and order passed by the learned trial court is liable to be set aside.
53. Accordingly, appeals are allowed. Impugned judgment and order dated 03.10.1996 passed by IVth Additional District and Sessions Judge, Sitapur in Sessions Trial No.74 of 1991, State Vs. Shatrohan Lal and others arising out of case crime no. 141 of 1988, under sections 498A, 304B and 201 IPC, Police Station Mehmoodabad, District Sitapur is set aside. Accused Nagendra Kumar, Raghvendra Kumar are acquitted for the charge under sections 304B and 498A IPC and accused Smt. Gyanwati and Smt Pushpa Devi are also acquitted for the charge under section 498A IPC. Accused Raghvendra Kumar is in jail. He shall be released from jail forthwith if he is not wanted in any other case. Accused Nagendra Kumar, Smt. Ghyanwati and Smt. Pushpa Devi are on bail. Their personal bonds and bail bonds are cancelled. Sureties are discharged.
54. Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment. Learned trial court shall send the compliance report within four weeks.
Order Date: 03.02.2017 GSY