Madhya Pradesh High Court
Todarmal (Deleted) vs State Of M.P. on 21 December, 2021
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DIVISION BENCH)
Criminal Appeal No.674 of 2000
Todarmal (Deleted) and 2 others ..... Appellants
Versus
State of M.P. ..... Respondent
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CORAM
Hon. Mr. Justice Ravi Malimath, Chief Justice.
Hon. Mr. Justice Deepak Kumar Agarwal, Judge.
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Presence
Shri Mahaveer Pathak, learned counsel for appellants.
Shri C.P. Singh, learned Panel Lawyer for the
respondents/State.
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JUDGMENT
(21 December, 2021) PER JUSTICE DEEPAK KUMAR AGARWAL The present appeal preferred u/S. 374 Cr.P.C. assails the judgment dated 15.09.2000 rendered in S.T. No. 206/97 by Additional Sessions Judge Mungawali District Guna whereby the trial Court has convicted the appellants for the offence punishable under Sections 498-A and 304-B of I.P.C. and sentenced them to undergo three years R.I. and fine of Rs.1000/ and life imprisonment respectively with further direction that all the sentences shall run concurrently.
2. Brief facts giving rise to present case are that on 24.02.1997 at about 16:45 pm, Narayandas (PW-1) informed Police Station Chanderi District Guna that at about 02:30 pm, when he was going 2 to market from his home, on the way there was a "Bawadi" (water reservoir), he saw dead body of a lady lying in the "Bawadi". On his information, Merg No.8/97 under Section 174 CrPC was registered. During merg enquiry, dead body was taken out from the Bawadi and Naksha Panchayatnama (Ex.P-7) was prepared. Silver and gold ornaments and slippers worn by the deceased were seized vide Ex.P-8. Water of Bawadi was collected and spot map was prepared and dead body of deceased was sent for postmortem. The dead body was identified as of one Ashakiran alias Gudiya, wife of appellant-Akhilesh Purohit. During Merg enquiry, statements of father of deceased Bhaiyalal (PW-8) and Satish Kumar @ Chinte Maharaj (PW-9), who acted as mediator in marriage solemnized between deceased Ashakiran and appellant- Akhlesh, were recorded. They stated that father of deceased Ashakiran gave articles as per his capacity in the marriage, despite this, her in-laws demanded motorcycle and refrigerator. Since their demand did not fulfill, in-laws of the deceased used to harass her, due to which she died in unnatural circumstances. After Merg inquiry, offence under Section 304-B of IPC bearing Crime No. 73/97 was registered against appellants. After recording of statements of witnesses and completion of investigation, charge- sheet under Sections 304-B of IPC was filed against the appellants before the Court of competent criminal jurisdiction. After committing the case to the Court of Session, the charges were 3 framed against the appellant for the offence punishable u/S. 304-B and 498-A of IPC.
3. Appellants abjured their guilt and pleaded complete innocence. In their defence the appellants examined Sashischan Jain "Kumresh" (DW-1), Daya Sagar Jain (DW-2) and Virendra Singh (DW-3).
4. The prosecution in order to prove its case has examined as many as ten witnesses i.e. Narayandas (PW-1), Mahesh Kumar Awasthi (PW-2), Chan Khan (PW-3), Vinod Kumar (PW-4), Shaym Kumar Sharma (PW-5), Chandan Singh Parihar (PW-6), Dr. R.P.Sharma (PW-7), Bhaiylal (PW-8), Satish Tiwari @ Chinte Maharaj (PW-9) and C.L. Bamoriya (PW-10).
5. Learned trial Judge after framing certain issues and marshalling the evidence available on record, rendered the impugned judgment by which appellants have been convicted and sentenced as mentioned in Para 1 of this judgment.
6. Since appellant-Todarmal died during pendency of this appeal, present appeal has been abated against him.
7. Challenging the impugned judgment of conviction and sentence, it is submitted by learned counsel for the appellants that the learned trial Court has committed grave error in passing the impugned judgment of conviction and sentence, as there was no complaint regarding demand of dowry before the death of the deceased, therefore, no offence under Section 304-B of IPC is 4 made out against the appellants. There are material contradictions and omissions in the evidence of father and brother of deceased regarding demand of dowry. It is further submitted that Shyam Kumar Sharma (PW-5) and Bhaiyalal (PW-8) are relatives of the deceased. There are contradictions and omissions in the statements of these witnesses. The cause of death of the deceased is not homicidal in nature. Thus, it is prayed that the impugned judgment of conviction and sentence passed by learned trial Court be set- aside and appellants-accused be acquitted from the alleged offence.
8. On the other hand, learned counsel for State supports the impugned judgment of conviction and sentence passed against the appellants by submitting that there is no infirmity in the impugned judgment of conviction and sentence. Hence, prayed for dismissal of this appeal.
9. Heard learned counsel for the parties at length and perused the record of trial Court.
10. It is not disputed that Narayandas (PW-1) on the date of incident i.e. 24.02.1997 while going to market saw dead body of a lady lying in a "Bawadi" (water reservoir) and gave information to Police Station Chanderi. On his information, Merg No. 8/97 under Section 174 CrPC was registered. Merg was inquired by SDOP C.L. Banmoria (PW-10), in which statements of witnesses were recorded. Afterwards, an FIR vide Ex.P-10 against the appellants 5 was registered and bones of the deceased were sent for diatom test. Report of which has been filed as Ex.P-12.
11. Bhaiyalal (PW-8), father of deceased, deposed that deceased Ashakiran alias Gudiya was his daughter whose marriage was solemnized with appellant Akhilesh in the year 1995. In the marriage, he had given Rs. 60,000/- in cash, cooler, almirah, sofa- set, bed and other articles to the appellants. Apart from this, Rs.50,000/- had also been given in Teeka ceremony. After 8-10 days of the marriage when deceased came to their house, she did not complain against appellants.
11.1 He further testified that after six months of the marriage, deceased alongwith her father-in-law came to Ashoknagar. Father- in-law of the deceased said that she (deceased) is ill and they have got her treated. Deceased Ashakiran told this witness that appellants used to say that according to their expectations, they did not get dowry. She also complained that her mother-in-law used to commit Maarpeet with her and locked her in a room and did not give any food to her. She further stated that her in-laws required a refrigerator and motorcycle. For three years, deceased stayed at her paternal home for treatment. During this period, nobody from her matrimonial home came to see her. 11.2 Bhaiyalal (PW-8) further stated that he told Todarmal father-in-law of the deceased that deceased complained that due to non-fulfillment of dowry demand, she was subjected to cruelty, 6 which Todarmal denied. When he confronted father-in-law in front of the deceased, he admitted that this type of small disputes are used to happen in the home. He also told father-in-law of the deceased that if you are not comfortable with the deceased, leave her at her paternal home. After one month, when appellant- Akhilesh came, Bhaiyalal also complained him about the cruelty inflicted by his parents. Appellant-Akhilesh told him that he is an obedient son and can not stop his parents. Thereafter, this witness further told him that if you are not able to live with your wife happily, you ought not to have married. On listening this, he went out without taking deceased Ashakiran. After two months, mediator Satish, appellant Akhilesh and his uncle came to his house and assuring him that now they will keep the deceased well and asked him to send the deceased with them. On their assurance, he sent her daughter with the accused. After 7-8 months, deceased came alongwith her father-in-law Todarmal to Ashoknagar. She was ill. When Bhaiyalal saw his daughter, he felt that appellants might kill his daughter and hence he advised her daughter not to go her in-laws house, but she went away. But when we go through his statement recorded during investigation by Police vide Ex.D-1 facts "After one month..............she went away" find no place. If it actually would have happened, he ought to have mentioned the same in his statement Ex.D.-1.
11.3 In cross-examination, Bhaiyalal (PW-8) stated that he did 7 not lodge any report against appellants regarding demand of motorcycle and refrigerator. He got treated his daughter by a private Doctor at Ashoknagar. He had no knowledge that deceased was having ulcer in her stomach. He never complained regarding demand of dowry to anyone against appellants soon before death because appellants assured him that her daughter will not be ill- treated further.
11.4 Bhaiyalal (PW-8) revealed that Akhilesh and middleman Satish came to bring his daughter, that's why he had sent his daughter. This fact has been stated by him to the police, but if the same is not mentioned in his police statement, he can not give any reason. His wife namely Sooraj Bai died in Ashoknagar hospital due to consumption of poisonous substance. He had informed about the said incident to Police Ashoknagar. He can not say as to why her wife consumed poisonous substance. He denied that appellants never demanded dowry from his daughter and on non- fulfillment of the same, they never inflicted cruelty on her. He denied that his daughter committed suicide, hence he is having grudge against the appellants.
12. On going through examination-in-chief and cross- examination of Bhaiyalal (PW-8), this Court is of the opinion that in his evidence there are major contradictions and omissions. Besides this, he himself has not seen any harassment meted out to the deceased by the appellants. He did not depose anything 8 regarding cruelty inflicted by the appellants upon the deceased soon before her death.
13. As per brother of deceased Shyam Kumar Sharma (PW-05), four days after the marriage, his sister Ashakiran came to his house and complained to his parents that appellants are demanding motorcycle and refrigerator. Her in-laws told her to return her matrimonial home only after fulfillment of their demand. When after ten days father-in-law of the deceased came to Ashoknagar to bring his daughter, he told that his son is desirous to get motorcycle and refrigerator. Father of the deceased told in-laws of the deceased that presently, he is not in capacity to buy a motorcycle and refrigerator. Thereafter, Todarmal (father-in- law of deceased) took his daughter alongwith him. 13.1 In January, 1996 when Shyam Kumar Sharma (PW-05) went to appellants' house, appellants asked him not to come here until fulfillment of their demand. As and when deceased used to come to her paternal home, she used to complain about cruelty committed by the appellants. Before two months of death of the deceased, she stated about the cruel behavior of her in-laws. 13.2 On receiving information of death of his sister, Shyam Kumar Sharma (PW-05) and his father Bhaiyalal went to the house of appellants, but nobody was there. Appellant Todarmal had gone to Indore. Appellants Triveni Bai and Akhilesh were not present in the hospital. But Satish Tiwari @ Chinte Maharaj (PW- 9
9) has admitted in his cross-examination Para 21 that before his arrival at the hospital, appellant-Triveni Bai reached there and thereafter appellant Akhilesh came to the hospital. 13.3 During cross-examination, Shyam Kumar Sharma (PW-05) stated that as regards ill-treatment of his sister by the appellants, he informed members of the society and also called a Panchayat, in which relatives of the appellants and middleman Satish Tiwari were also present. He got his sister treated at Ashoknagar by Dr. Mahavir. Before death of the deceased, he did not lodge any complaint to the police regarding cruelty by the appellants. Shyam Kumar Sharma (PW-05) denied that his mother committed suicide by consuming poisonous substance. Afterwards, he stated that he has no knowledge that his mother died on 24.04.1993 by consuming poisonous substance. Report in that regard was lodged before police. He also denied that his brother Ramkumar committed suicide on 02.04.1991 but he admitted that report regarding death of his brother was lodged in police station. He cannot say that there is tendency of committing suicide in his family. He denied that his sister was of irritating behavior and was in depression. He also denied that appellants did not demand dowry and inflict cruelty on deceased. He denied that they are falsely implicating the appellants.
14. On going through the evidence of this witness, who is brother of deceased, this Court finds that his evidence is contrary 10 to the evidence of his father Bhaiyalal (PW-8) on material points. He made omnibus statement against appellants regarding demand of motorcycle and refrigerator. He has not deposed anything regarding cruelty on account of demand of dowry by the appellants with the deceased soon before her death. This witness being relative of the deceased can be termed as an interested witness and his evidence cannot be relied upon.
15. As per Satish Tiwari @ Chinte Maharaj (PW-9), appellants are his neighbour and he is a distinct relative of father of deceased Bhaiyalal. In 1995 Todarmal (father-in-law of deceased) told him that his son Akhilesh has attained 35 years of age, but his marriage is not fixed yet and therefore, requested him to search a suitable girl. After sometime, father of deceased Bhaiyalal came to Chanderi, he enquired from him about Akhilesh. He introduced Bhaiyalal to appellants. Bhaiyalal after talking with the appellants satisfied and told them that he is ready and willing to marry his daughter Ashakiram with appellant Akhilesh and thereafter horoscopes of deceased and appellant Akhilesh were matched. Thereafter, he alongiwth appellants visited Ashoknagar to see daughter of Bhaiyalal Ashakiran. Marriage was solemnized between deceased and appellant Akhilesh peacefully. 15.1 After some days of marriage appellant-Trevedi Bai (mother- in-law of deceased) demanded a refrigerator and appellant- Akhilesh demanded a motorcycle. One day he called Bhaiyalal 11 and placed the said demand of appellants before him. Bhaiyalal agreed to give a motorcycle but subject to the condition that the said demand shall be fulfilled on the birth of child of his daughter. 15.2 Thereafter, he got information that appellants are harassing the deceased. Once he was passing from the house of appellants, he saw that deceased was being beaten by appellant Triveni Bai by pulling her Saree. When he objected, she told him not to interfere in their personal matter. After some days, when he was going in front of their house, he saw deceased Ashakiran cleaning the house and on seeing him, she started crying and told him to call her father Bhaiyalal. On his request, he called Bhaiyalal. Bhaiyalal and his son came to the house of appellants. Appellants put their demand of motorcycle before them and sent Ashakiran with them with clear stipulation that they will keep Ashakiran with them when their demand of motorcycle will be fulfilled. Thereafter, Bhaiyalal and his son took Ashakiran to their home. 15.3 Afterwards, appellants broke their relationship with Satish Tiwari @ Chinte Maharaj (PW-9) and stopped the conversation. Upto six month deceased stayed at her parental home. Because of embarrasment, appellants called their relative Keshav Purohit from Gwalior. Keshav Purohit came to his house alongwith Akhilesh. Akhilesh apologized with him for his previous behaviour and requested to bring back Ashakiran. Afterwards, he alongwith Akhilesh went to Ashoknagar where Bhaiyalal was very 12 angry but subsequently, he sent her daughter with appellant. After some days, appellants again started ill-treating the deceased. 2-3 days before the death of deceased-Ashakiran, at about 11:30 pm, when he was returning to his home from his shop, he heard the sound of abuses and assult from the house of appellant. Afterwards, dead body of deceased was found in a Bawdi. He reached the hospital and gave the said information to the appellants. Later on, he informed the parents of the deceased. 15.4 During cross-examination, Satish Tiwari @ Chinte Maharaj (PW-9) stated that he can not say which articles were given in dowry but Rs.41,000/- was given in Teeka ceremony. He had stated that in informed the police that appellants demanded a refrigerator and motorcycle from the father of deceased, but if this fact is not mentioned in his police statement, he can not give any reason. He did not disclose in his statement Ex.D-2 that Bhaiyalal assured appellants to give motorcycle on the birth of child of deceased-Ashakiram. He admitted that he did not tell the police that his wife has informed him that appellants harassed the deceased. He himself did not lodge any report to the police. He could not tell on which date and time appellants committed marpeet with the deceased Ashakiram. He also did not mention in his statement Ex.D-2 that he saw appellant-Triveni Bai beating the deceased by catching hold of saree of deceased. He stated this fact first time in his statement before the Court.
1315.5 He at the time of recording of Ex.D-2 also informed the police that when he objected the said Maarpeet, appellant-Triveni Bai told him not to interfere in their personal matter, but the sid fact did not find place in Ex.D-2. He admitted that in Ex.D-2 he did not state that deceased was cleaing the house and by weeping, she told him to call her father. He further stated that he informed the police that Bhaiyalal came to Chanderi where appellants put their demand of motorcycle before him, but again said fact did not find mention in Ex.D-2. He admitted that he did not state in police statement that Keshav Purohit and his son have gone with him to Ashoknagar. He further admitted that in his police statement he did not state that after 2-3 days of arrival of deceased to her matrimonial home, appellants started committing marpeet with the deceased. He informed his neighbours namley Jainarayan, Ramanand Sen, Jaswant Singh, Ramkishan Purohit and Kumresh about marpeet with the deceased. He is married to the sister of Ramesh who is foofa of the deceased. He has no enimity with the appellants. His house is situated near the house of appellants. He denied that appellants did not commit curelty with deceased Ashakiran. He admitted that when deceased was admitted in the hospital, her mother-in-law reached first and after his arrival at hospital, appellan-Akhilesh came there and Todarmal was not there. He cannot say that on the said date, Todarmal had gone to Indore or not.
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16. Having gone through examination-in-chief of this witness Satish Tiwari @ Chinte Maharaj (PW-9) specifically para 5 to 9, we find that if such incident of cruelty would have occurred in front of him, he ought to have narrated the said fact in his statement recorded before the police, but he has not stated anything about the aforesaid facts. He stated for the first time about the said incident before the Court. He is a relative of the deceased and was middleman in solemnizing marriage of deceased with appellant-Akhilesh.
16.1 This witness gave statement before the Court that he is an eye-witness of the cruelty inflicted by the appellants on deceased but during recording of statement by the police he remained silent. He made omnibus statement against appellants that due to demand of refrigerator and motorcycle, they used to harass the deceased Ashakiran. In such a situation, especially when he is a relative of the deceased and middleman in the marriage, this witness cannot be termed to be an independent witness and therefore, his testimony cannot be relied upon.
17. Assistant Sub-Inspector Chandan Singh Parihar (PW-6) deposed that on 24.02.1997 he was posted as Assistant Sub- Inspector at Police Station Chanderi. On that day, Narayandas (PW-1) gave information about dead body of a lady lying in a Bawadi. On his information, he lodged Merg Ex.P-1. During Merg enquiry, he reached on spot and gave notices to the witnesses and 15 prepared dead body panchanama vide Ex.P-7 and ornaments from the dead body were seized Ex.P-8. Slippers worn by the deceased were also seized vide Ex.P-5 and water of Bawadi was collected vide Ex.P-4 and spot map was prepared. When dead body of the deceased reached hospital, he came to know that the lady is wife of appellant-Akhilesh Purohit and daughter-in-law of Todarmal and Triveni.
17.1 Thereafter, he gave information to the family members of deceased. In cross-examination, he denied that Narayandas gave information to him at bus stand. He denied that after taking out dead body from Bawadi, he registered Merg. He stated that he was informed by witness Ramanand that corpse is of wife of Akhilesh. He called appellant Akhilesh and Triveni Bai who identified the deceased as Ashakiran. After inquiry from appellant, he called parents of deceased. When parents of the deceased came, appellants were also there.
18. Dr. R.P. Sharma (PW-7) testified that on 24.02.1997, Police Constable Ramswaroop Meena brought the dead body of Ashakiran for postmortem. Due to night, he conducted postmortem on the very next day i.e. 25.02.1997 at about 11:00 am. On examination, he found that eyes of the deceased were dilated. Tongue was inside. Foam was oozing out from nose. Rigor mortis was present on hand and neck. During internal examination, it was found that there was water in the stomach. 16 There was swelling in lungs and on cutting it, blood stained foam was coming out. Cause of death is drowning. Postmortem report is at Ex.P-9. During postmortem Dr. Mudgal and Dr. Siddharth were also present. During cross-examination, he narrated that during postmortem, short notes were prepared and afterwards detailed report was prepared. After filing of report, notes were destroyed. He denied that there was ulcer in the stomach of the deceased.
19. After scrutinizing the evidence of this witness, this Court is of the opinion that deceased Ashakiran died due to drowning.
20. As per Mahesh Kumar Awasthi (PW-2), he is neighbour of the appellants. He has not supported the prosecution case. He attended the marriage of Akhilesh with deceased Ashakiran. According to him, Rs.21,000/- cash alongwith other house-hold articles were given in the marriage to the appellants. He admitted that deceased was in mental stress, however he did not know the reason behind that. He specifically denied that appellants were harassing the deceased. He also denied that since he has been won over by the appellant, he is not supporting the story of prosecution.
20.1 During cross examination, he admitted that the deceased was of irritating behavior. Appellants got her treated, but her disease could not be ascertained. Appellants were keeping the deceased well. There was no dispute regarding dowry. 17
21. As per Vinod Kumar (PW-4), he also resides at Chanderi where deceased in-laws house is situated. He has not supported the story of prosecution. He narrated that he knows appellants. One day when he came from Jabalpur alongwith Satish Tiwari, he met Bhaiyalal. Later on, alongwith Akhilesh, he had gone to his in-laws house where they stayed about 15-20 minutes. In front of him between appellant-Akhilesh and father of deceased, there was no conversation regarding dowry.
22. Appellants in his defense produced the evidence of his neighbour Sachischand Jain "Kumresh" (DW-1). He deposed that he resides in front of house of appellants. He used to go to the house of appellants. He never heard that appellants used to commit Maarpeet with the deceased. As per his evidence, behaviour of appellants towards deceased was good. His evidence could not be cross-examined by the prosecution.
23. As per Daya Sagar Jain (DW-2), he knows the appellants. He used to go to their house. Father-in-law of the deceased used to work as Muneem. Deceased never complained regarding behavior of appellants towards her. He is residing near the house of appellants.
23.1 State cross-examined this witness. In his cross-examination he stated that he used to visit the house of appellants twice a week. He also went in the marriage of the deceased. He did not enquire about the cause of death of the deceased. He denied that due to his 18 relationship with appellants, he is deposing in their favour.
24. As per Virendra Singh (DW-3), Todarmal was Muneem in his Bidi factory. On 21.02.1997, he had sent Todarmal to Indore. After 4-5 days Todarmal returned. He had gone after taking expenses from the cashier. In this regard he gave certificate to Todarmal as Ex.D-3.
24.1 During cross-examination he told that on the request of Todarmal he gave said certificate. He can not say that on 24.02.1997, Todarmal returned to Chanderi or not. Police did not enquire about Todarmal from him.
25. The Apex Court in the case of Manohar Lal Vs. State of Haryana (2014) 9 SCC 645 has held thus:-
"17. Section 304B IPC relates to dowry death and reads as follows:
"304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have 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."
18. For the purpose of the said Section, a presumption can be raised only on proof of the following essentials:
(a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.
(b) Such death took place within seven years of her marriage.
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and 19
(e) Such cruelty or harassment was soon before her death.
In this connection, we may refer decision of this Court in Kaliaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828.
19. In Sunil Bajaj vs. State of M.P., (2001) 9 SCC 417, this Court held:
"5. We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied:
(1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage;
(3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(4) such cruelty or harassment must be for or in connection with demand of dowry.
6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death"
and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than
7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned 20 counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied."
20. The expression "soon before her death" used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal & Others vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80,which reads as under:
"8. Section 304-B IPC which deals with dowry death, reads 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.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(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.
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 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 had 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.21
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)." The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that 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 woman concerned 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 the 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."
Similar observation was made by this Court in Balwant Singh and Another vs. State of Punjab (2004) 7 SCC 724. In the said case this Court held:
"10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim."
21. In the present case, from the statement of PW.1 it appears that the death took place within seven years of marriage. Admittedly, death of the deceased was due to burning i.e. not in normal circumstances. We have to see now whether the remaining two ingredients are satisfied looking into the evidence on record.
22. The statement of the complainant PW.1 is general and not specific. No specific incidence has been indicated suggesting the cruelty or harassment made by the accused-Manohar Lal. Her statement is not reliable and not trustworthy. Though the 22 allegation of demand of dowry was made none of the witnesses including PW.1 stated that the deceased was harassed "soon before her death" for or in connection with demand of dowry. The accused appellant was charge-sheeted under Sections 498- A and 304-B IPC but the Trial Court has not convicted the accused under Section 498-A. In this background, we are of the opinion that the prosecution has miserably failed to prove that the accused harassed the deceased soon before her death for or in connection with a demand of dowry.
23. For the reasons aforesaid, the judgment passed by the Trial Court dated 26th August, 1994 as upheld by the High Court by impugned judgment dated 26th March, 2007, cannot be upheld. They are accordingly set aside. The accused-Manohar Lal is acquitted from the charge under Section 304B IPC. The appeal is allowed. Bail Bonds, if any, stand discharged."
26. The trial Court has relied on the presumption available under Section 113-B of the Evidence Act, 1872 to conclude that Ashakiran's death was a dowry death. However, this presumption cannot be stretched to implicate appellants in demanding additional dowry from the father of deceased and harassing her and treating her with such cruelty that she had to resort to taking her life. As mentioned above, there is a possibility that members of the family having varying roles, active and passive. Depending on the nature and extent of involvement, a person may be punished for an offence under Section 498-A or Section 304- B or Section 306 of the IPC or Section 4 of the Dowry Prohibition Act, 1961. A dowry death will not ipso facto suck the husband with all his relatives into the net of Section 304- B of the IPC.
27. In view of the aforesaid, we are of the opinion that evidence produced by the prosecution are contradictory to each other. Witnesses have improved their version before the Court. Other 23 independent witnesses have not supported the story of prosecution. Besides this, prosecution utterly failed to prove cruelty inflicted by the appellants soon before death of the deceased.
28. Therefore, for the said reasons the appeal is allowed. The judgment dated 15.09.2000, passed by the Court of Additional Sessions Judge, Mungawali, District Guna (M.P.) in Sessions Trial No.206/1997 in convicting the accused-appellants for the offences punishable under Sections 498-A and 304-B of IPC is set aside. The accused-appellants are acquitted of all the charges levelled against them. Since the accused-appellants are on bail, their bail bonds are cancelled and the sureties are discharged.
(RAVI MALIMATH) (DEEPAK KUMAR AGARWAL)
CHIEF JUSTICE JUDGE
ojha
YOGENDRA OJHA
2021.12.21
17:55:28 +05'30'