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Wednesday, November 13, 2013

Sec.304 B, 306 498 A I.P.C. and sec.3 &4 of Prohibition of Dowry Act - Mere demand of dowry in absence of cruelty can not fasten any liability = All family members are not liable for Dowry death case under sec.304 B I.P.C. r/w sec.113 B of Evidence Act, Unless it is proved their active role or passive connivance in committing the offence , no presumption could be drawn automatically against all = Bhola Ram …..Appellant Versus State of Punjab …..Respondent = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40958

Sec.304 B, 306 498 A I.P.C. and sec.3 &4 of Prohibition of Dowry Act -  Mere demand of dowry in absence of cruelty can not fasten any liability = All family members are not liable for Dowry death case under sec.304 B I.P.C. r/w sec.113 B of Evidence Act, Unless it is proved their active role or passive connivance in committing the offence , no presumption could be drawn automatically against all =

 It is true that there was a demand of dowry of Rs.     10,000/-  which
was paid by Nath Ram by borrowing this amount from Nirbhai Singh,  but  that
demand was for the purchase of a car for  use  by  Darshan  Ram. 
 Under  the
circumstances, it can safely be presumed that Darshan Ram  made  the  demand
for additional dowry for his benefit. 
Bhola Ram may have been a silent or  a
passively conniving participant, but there is nothing on record  to  suggest that he had either actively made such a demand or that the  demanded  amount was sought to be utilized for his benefit either directly or indirectly.
28.   Similarly, the evidence on record does not show  that  the  demand  of
another amount of Rs.30,000/- from Nath Ram just a  fortnight  before  Janki
Devi took her life was made by  Bhola  Ram  to  purchase  articles  for  the
service station being set up by him and Darshan Ram at  village  Nehianwala.
At best, it could be said that this amount was  intended  for  use  for  the joint business venture of Bhola Ram and Darshan Ram. Given that the  earlier demand for additional dowry was made for the benefit of Darshan Ram,  it  is more than likely that this demand was also made by him. In any event,  there is again nothing to suggest that  Bhola  Ram  was  in  any  manner  actively concerned in making the demand directly or indirectly from Nath Ram.
29.   Consequently, we do not  find  any  evidence  to  suggest  any  active
complicity of Bhola Ram in demanding any  additional  dowry  from  Nath  Ram
either for himself or for Darshan Ram or his proposed business venture.
30.   Merely making a demand for dowry  is  not  enough  to  bring  about  a conviction under Section 304-B of the IPC.

  In this case, even  assuming  the
silent or conniving participation of Bhola Ram in  the  demands  for  dowry, there is absolutely no evidence on record to suggest  that  he  actively  or passively treated Janki Devi with cruelty  or  harassed  her  in  connection with, or for, dowry. 
The High Court  has,  unfortunately,  not  adverted  to
this ingredient of an offence punishable under Section 304-B of the  IPC  or even considered it.
31.   The High Court has relied on the presumption available  under  Section 113-B of the Evidence Act, 1872 to conclude that Janki Devi’s  death  was  a dowry death. 
However, this presumption cannot be stretched to implicate  all
and sundry in Darshan Ram’s family in demanding additional dowry from  Janki Devi’s family 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 of 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.

While
these persons may be staying together, it does  not  lead  to  any  positive
conclusion that  each  one  of  them  was  actively  involved  in  demanding
additional  dowry  from  Janki  Devi  and  also  behaving  in  a  cruel   or
humiliating manner towards her resulting in her consuming poison to end  her
life. 
In cases of this nature which attract a reverse  onus  of  proof,  the
least that is expected of the prosecution  to  bring  home  a  charge  under
Section 304-B of  the  IPC  is  to  adduce  some  evidence  to  suggestively
implicate a relative, in this case,  to  suggestively  implicate  Bhola  Ram
both in the demands for additional dowry and harassment  or  cruelty.   
Such evidence is not available on record and  so  the  mere  fact  that  all  the
members of Darshan Ram’s  family  were  living  together  at  village  Mehma
Sarja, would not alter the factual situation.
33.    Consequently,  in  the  absence  of  the  prosecution   proving   the
ingredients of Section 304-B of the IPC, the initial burden cast on  it  has
not been discharged. 
Therefore, the presumption under Section 113-B  of  the
Evidence Act cannot be attracted.

Conclusion
34.   Based on the evidence available on record (or the lack of it) we  have
no doubt that the appeal filed by Bhola Ram ought  to  be  allowed.

                                                               REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1022 OF 2008


Bhola Ram                                    …..Appellant

                             Versus

State of Punjab                                    …..Respondent


                               J U D G M E N T


Madan B. Lokur, J.
1.    The question for consideration is
whether the appellant Bhola Ram  was
rightly convicted by both the Trial Court and  the  High  Court  for  having
caused the dowry death of Janki Devi, an offence  punishable  under  Section
304-B and Section 498-A of the Indian Penal  Code  (IPC).
In  our  opinion,
Bhola Ram deserves an acquittal since there is no evidence inculpating  him.



The facts:

2.    Darshan Ram married Janki Devi on 30th June,  1986  after  which  they
resided in Darshan Ram’s house in village Mehma Sarja.   The  couple  has  a
female child.
3.    At the time of their marriage, Janki Devi’s family gave  dowry  within
their  means  to  Darshan  Ram  and  his  family.
 But  according  to   the
prosecution, his brothers Parshottam Ram and Bhola Ram (the  appellant)  and
his sister Krishna Devi and mother Vidya Devi demanded more dowry from  time
to time.
4.    Janki Devi’s family was unable to fulfill the additional  demands  for
dowry and, according to the prosecution,  she  was  humiliated  and  cruelly
treated by Darshan Ram’s family for their incapacity.  
Being unable to  face
the harassment, cruelty and humiliation meted out by Darshan  Ram’s  family,
Janki Devi consumed poison and thereby committed suicide on  6th  September,
1989.
5.    About one and a half  months  before  her  death,  a  demand  for  Rs.10,000/- was made by Janki Devi’s in-laws for the purchase of a  car.
Janki Devi’s father PW-2 Nath Ram borrowed this amount  from  PW-1  Nirbhai  Singh
for meeting the dowry demand.
The amount was then handed  over  by  him  to
Darshan Ram in the presence of other members of his family.
6.    Unfortunately, Darshan Ram’s family was not fully satisfied with  this
payment.
According to the prosecution, about a fortnight before  her  death,
Janki Devi came to her father and told him that there was a  further  demand for an amount of Rs. 30,000/- for purchasing some  articles  for  a  service station proposed to be run by Darshan Ram and  Bhola  Ram.
Thereupon,  Nath
Ram accompanied Janki Devi to her matrimonial home and informed Darshan  Ram
and the other accused that he would not be  able  to  pay  this  amount.  
On
this, Darshan Ram’s family informed  him  that  he  should  pay  the  amount
failing which he could take Janki Devi back with him.  
Nath  Ram  requested
the family not  to  insist  on  the  demand  and  left  Janki  Devi  at  her
matrimonial home in village Mehma Sarja.
7.    On 3rd September, 1989 PW-3 Des Raj, the brother of Nath  Ram’s  wife,
informed Nath Ram about Janki Devi being  ill-treated  on  account  of  Nath
Ram’s inability to meet the additional  demand  for  dowry.   Again  on  5th
September, 1989 Des Raj informed Nath Ram that Janki  Devi  wanted  to  meet
Nath Ram and was weeping in his presence.
8.    On receiving this information, Nath Ram went to  village  Mehma  Sarja
along with his brother PW-4 Sukhdev Ram. When they reached the bus stand  in
the village they were informed that Janki Devi had consumed poison  and  had
taken her life, having suffered more than enough cruelty  at  the  hands  of
the family of Darshan Ram.  Nath Ram  and  Sukhdev  Ram  then  proceeded  to
Janki Devi’s matrimonial home and found her lying  there  but  no  one  from
Darshan Ram’s family was present in the matrimonial home.
9.    Nath Ram then lodged  a  First  Information  Report  (FIR)  in  Police
Station Nehianwala.  On the basis of the FIR PW-7 Manminder  Singh  prepared
an inquest report in the presence of Sukhdev Ram. On the next day,  that  is
7th September, 1989 PW-5 Dr. Tirath Goyal performed an autopsy on  the  dead
body of Janki Devi.  He noted that froth was coming out from  her  nose  and
mouth.  Her viscera were sent to the Chemical  Examiner  who  reported  that
Janki Devi had died due to having consumed an organo phosphorus  insecticide
which was poisonous and sufficient to cause death in the ordinary course  of
nature.
10.   On the basis of  the  above  details  and  further  investigations,  a
charge sheet was filed against Darshan Ram and four members  of  his  family
(including Bhola Ram) under Section 304-B and Section 498-A of the  IPC  for
causing the dowry death of Janki Devi.
11.   The accused pleaded not guilty and were tried by  the  Sessions  Judge
at Bathinda.
Decision of the Trial Judge
12.   In his Judgment and Order dated 3rd December, 1991 the Sessions  Judge
at Bathinda in Sessions Case No. 35 of 15th May, 1990 held that Section 304-
B of the  IPC  required  the  prosecution  to  establish  four  ingredients,
namely:
(i) the death of a woman is caused by any burns or bodily injury  or
occurs otherwise than under normal circumstances,  
(ii)  such  death  should
have occurred within seven years of her  marriage,  
(iii)  soon  before  her
death she was subjected to cruelty or  harassment  by  her  husband  or  any
relative of her husband, and 
(iv) such cruelty or harassment should be  for,
or in connection with, any demand for dowry.
In the present case,  all  four
ingredients were established by the prosecution.
13.   It was further held that Darshan  Ram,  Bhola  Ram  and  their  mother
Vidya Devi were living together in the same house  at  village  Mehma  Sarja
and that they had  demanded  additional  dowry  from  Janki  Devi’s  family.
However, Parshottam Ram and Krishna Devi were  living  separately  and  they
could  not  be  said  to  have  caused  the  dowry  death  of  Janki   Devi.
Consequently, Parshottam Ram and Krishna Devi were found not guilty  of  the
charges framed against them and they were acquitted.
However, the  Sessions
Judge found that Darshan Ram, Bhola Ram and Vidya Devi,  by  their  attitude
and behaviour, caused Janki Devi to take the extreme step of taking her  own
life.  These  three  accused  were  accordingly   convicted   for   offences
punishable under Section 304-B and Section 498-A of the  IPC  and  sentenced
to undergo rigorous imprisonment for a period of 7 years with fine  for  the
offence under Section 304-B of the IPC and  2  years  rigorous  imprisonment
for the offence under Section 498-A of the IPC.
14.   The accused preferred two appeals (one by Vidya Devi and the other  by
Darshan Ram and Bhola Ram) against their  conviction  and  sentence  in  the
High Court of Punjab and Haryana.
Decision of the High Court
15.   In so far as Vidya Devi is concerned, her  conviction  was  upheld  by
the High Court and she preferred a Special Leave  Petition  in  this  Court.
She was granted special leave to appeal  but  during  the  pendency  of  her
appeal she passed away and accordingly her appeal was disposed of.
16.   Darshan Ram and Bhola Ram preferred a joint appeal in the  High  Court
being Criminal Appeal No. 25 SB  of  1992.   This  appeal  was  heard  by  a
learned Single Judge who by his Judgment and  Order  dated  5th  July,  2004
upheld their conviction and sentence.
17.   The High Court held that Vidya Devi, Darshan Ram and  Bhola  Ram  were
all residing together in the same house at village Mehma Sarja. 
It was  held
that the amount of Rs. 10,000/- initially taken from Nath Ram  was  used  to
purchase a car for Darshan Ram and that car was being plied  as  a  taxi  by
him. 
It was also held that a service station was at the  initial  stages  of
being established by Darshan Ram and Bhola Ram  and  that  they  needed  Rs.
30,000/- for expenses in connection  with  that  venture.  
Since  all  three
convicts were residing together at village Mehma Sarja,  they  were  equally responsible for demanding additional dowry from Janki Devi  and  her  father and thereby compelling her to take her life.
18.   It appears that Darshan Ram has not challenged the Judgment and  Order
of the learned Single Judge and his conviction and  sentence  have  attained
finality.
19.   We are, therefore, only concerned with the appeal filed by  Bhola  Ram
who challenged his conviction and sentence in this  Court  and  was  granted
special leave to appeal on 8th July, 2008.  He  was  also  granted  bail  by
this Court on the same day and we are told that even today, he is on bail.
Discussion
20.   Learned counsel for Bhola Ram submitted  that  in  fact  there  is  no
specific allegation against him.
The statements of  all  the  witnesses  are
omnibus or generic in nature and  Darshan  Ram  and  other  members  of  his
family have been generally accused of having demanded additional dowry  from
Janki Devi’s family.
It is submitted that in the absence of any  particular
allegation, demands for dowry made by Darshan Ram cannot  be  attributed  to
Bhola Ram and under these circumstances, there  is  really  no  evidence  to
uphold his conviction.
21.   On the other hand, it was submitted by learned counsel for  the  State that the three  convicts  were  jointly  and  directly  concerned  with  the demands  of  additional  dowry  made  on  Janki   Devi   and   her   family.
Consequently, it is not possible to segregate the case  of  Bhola  Ram  from that of the other two convicts.
22.   We are unable to accept the contention  of  learned  counsel  for  the State.
The Sessions Judge found that there was no evidence that  Parshottam Ram and Krishna Devi made  demands  for  additional  dowry  from  Nath  Ram.
Accordingly, they were acquitted at the trial stage itself.  
Therefore,  the
segregation process, based on the evidence  on  record,  had  begun  at  the trial stage. 
This is clearly because in a dowry death, some actors  play  an
active role while others play a passive role. 
Consequntly,  to  sustain  the
conviction of Bhola Ram, there must be  some  suggestive  evidence  and  not generic evidence implicating him in the demand  for  additional  dowry  from Nath Ram.
23.   As observed by the Law Commission of India (LCI) in  its  91st  Report
of 10th August, 1983 (in paragraph 1.8) the truth may not come  in  a  dowry
death case due to the sequestered nature of the offence. This  is  what  the
LCI said:
      “Those who have studied crime and  its  incidence  know  that  once  a
      serious crime is committed, detection is a difficult matter and  still
      more difficult is successful prosecution of the offender.  Crimes that
      lead to dowry deaths are almost invariably committed within  the  safe
      precincts of a residential house. The criminal  is  a  member  of  the
      family; other members of the family (if residing in  the  same  house)
      are either  guilty  associates  in  crime,  or  silent  but  conniving
      witnesses to it. In any case, the shackles of the family are so strong
      that truth may not come out of the chains. There would be no other eye
      witnesses, except for members of the family.”

24.   This passage also clearly brings out that in a case of a dowry  death, every member of the family may not be fully and equally guilty.  
The  degree
of involvement may differ – as an associate,  as  a  silent  witness,  as  a conniving witness and so on.
25.   So far as this case is concerned, we have gone  through  the  evidence
of all the witnesses on record and while there is no doubt that  Janki  Devi
died an unnatural death within a few years of her marriage to  Darshan  Ram,
no definite allegation has been made by any of the witnesses including  Nath Ram or anybody from his family that Bhola Ram had  demanded  any  additional dowry from him or anybody in his family  or  had  treated  Janki  Devi  with cruelty or in a humiliating manner so as to make him complicit in the  dowry
death.
26.   In Kans Raj v. State of Punjab, (2000) 5 SCC 2007 the  ingredients  of
an offence under Section 304-B of the IPC were held to be as follows:
      “In order to seek a conviction against a person  for  the  offence  of
      dowry death, the prosecution is obliged to prove that:
           (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 soon before her death.”


27.   It is true that there was a demand of dowry of Rs.     10,000/-  which
was paid by Nath Ram by borrowing this amount from Nirbhai Singh,  but  that
demand was for the purchase of a car for  use  by  Darshan  Ram. 
 Under  the
circumstances, it can safely be presumed that Darshan Ram  made  the  demand
for additional dowry for his benefit. 
Bhola Ram may have been a silent or  a
passively conniving participant, but there is nothing on record  to  suggest that he had either actively made such a demand or that the  demanded  amount was sought to be utilized for his benefit either directly or indirectly.
28.   Similarly, the evidence on record does not show  that  the  demand  of
another amount of Rs.30,000/- from Nath Ram just a  fortnight  before  Janki
Devi took her life was made by  Bhola  Ram  to  purchase  articles  for  the
service station being set up by him and Darshan Ram at  village  Nehianwala.
At best, it could be said that this amount was  intended  for  use  for  the joint business venture of Bhola Ram and Darshan Ram. Given that the  earlier demand for additional dowry was made for the benefit of Darshan Ram,  it  is more than likely that this demand was also made by him. In any event,  there is again nothing to suggest that  Bhola  Ram  was  in  any  manner  actively concerned in making the demand directly or indirectly from Nath Ram.
29.   Consequently, we do not  find  any  evidence  to  suggest  any  active
complicity of Bhola Ram in demanding any  additional  dowry  from  Nath  Ram
either for himself or for Darshan Ram or his proposed business venture.
30.   Merely making a demand for dowry  is  not  enough  to  bring  about  a conviction under Section 304-B of the IPC.
As  held  in  Kans  Raj  a  dowry
death victim should also have been treated  with  cruelty  or  harassed  for
dowry either by her husband or a relative.
In this case, even  assuming  the
silent or conniving participation of Bhola Ram in  the  demands  for  dowry, there is absolutely no evidence on record to suggest  that  he  actively  or passively treated Janki Devi with cruelty  or  harassed  her  in  connection with, or for, dowry. 
The High Court  has,  unfortunately,  not  adverted  to
this ingredient of an offence punishable under Section 304-B of the  IPC  or even considered it.
31.   The High Court has relied on the presumption available  under  Section 113-B of the Evidence Act, 1872 to conclude that Janki Devi’s  death  was  a dowry death. 
However, this presumption cannot be stretched to implicate  all
and sundry in Darshan Ram’s family in demanding additional dowry from  Janki Devi’s family 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 of 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.
32.   It was contended by learned counsel for the State  that  Darshan  Ram,
Bhola Ram and Vidya Devi were living together at village Mehma Sarja and  so
their active involvement in the dowry  death  cannot  be  ruled  out.
While
these persons may be staying together, it does  not  lead  to  any  positive
conclusion that  each  one  of  them  was  actively  involved  in  demanding
additional  dowry  from  Janki  Devi  and  also  behaving  in  a  cruel   or
humiliating manner towards her resulting in her consuming poison to end  her
life.
In cases of this nature which attract a reverse  onus  of  proof,  the
least that is expected of the prosecution  to  bring  home  a  charge  under
Section 304-B of  the  IPC  is  to  adduce  some  evidence  to  suggestively
implicate a relative, in this case,  to  suggestively  implicate  Bhola  Ram
both in the demands for additional dowry and harassment  or  cruelty.   
Such
evidence is not available on record and  so  the  mere  fact  that  all  the
members of Darshan Ram’s  family  were  living  together  at  village  Mehma
Sarja, would not alter the factual situation.
33.    Consequently,  in  the  absence  of  the  prosecution   proving   the
ingredients of Section 304-B of the IPC, the initial burden cast on  it  has
not been discharged. 
Therefore, the presumption under Section 113-B  of  the
Evidence Act cannot be attracted.

Conclusion
34.   Based on the evidence available on record (or the lack of it) we  have
no doubt that the appeal filed by Bhola Ram ought  to  be  allowed.   
It  is
accordingly allowed and he is acquitted of the  charges  against  him  under
Section 304-B and Section 498-A of the IPC  in  relation  to  the  death  of
Janki Devi.
35.   The appeal is allowed and the conviction and sentence of Bhola Ram  is
set aside.
Post script
36.    What  is  a  little  disturbing  about  this  case  is  that  it   is
illustrative of  the  slow  movement  of  the  wheels  of  criminal  justice
delivery. The dowry death took place  on  6th  September,  1989.  The  Trial
Court pronounced its decision on 3rd December,  1991  within  two  years  of
Janki Devi’s death. The first appeal was decided by the High  Court  on  5th
July, 2004 which is more than twelve years later.  A  petition  for  special
leave to appeal was filed in this Court in 2004 and leave was  granted  only
after a gap of four years in 2008. Thereafter this  appeal  was  listed  for
hearing as if it is an appeal  of  2008  rather  than  a  petition  of  2004
thereby wiping away four years of its age in this Court. And even  then,  it
has taken another five years for its disposal, making a total of nine  years
spent in this Court. It is high time those of us  who  are  judges  of  this
Court and decision makers also become policy makers.

                                      ….…….……………………..J.
                                        (Ranjana Prakash Desai)



                                                           ….…….……………………..J.
                                        (Madan B. Lokur)
New Delhi;
November 11, 2013


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