Sec.498 A of I.P.C.- Sec.304 B and Sec.113 of Evidence Act - These two provisions in Indian Penal Code and Indian Evidence Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986 - soon before her death was subjected to cruelty in respect of demand of dowry concept - Trial court and High court convicted the Accused - Apex court held that when there had been persistent demand for dowry and also the complainant was not allowed to meet the deceased and further the death was caused by the consumption of oreganophosphorus compound, which conclusively establishes the appellant guilty under Section 304-B of the Indian Penal Code. Trial court and high court rightly convicted the accused =
When
Manju Bala’s father Ram Naresh and brother Raman were going to the house
of accused persons for seeing her, they noticed accused Dinesh and his
mother carrying Manju Bala in a tractor to Civil Hospital Fatehabad.
Driver of the tractor ignored their signal to stop tractor. On arriving
at Civil Hospital, they learnt that Manju Bala had died before
reaching the Hospital. Munni Bai – mother of the deceased suspected that
her daughter was murdered by her husband Dinesh and his brothers, namely
Vinod and Rakesh, for not satisfying their demand for dowry. On her
statement, FIR No.441 dated 8.6.1994 under section 498-A and 304-B,
Indian Penal Code (in short ‘IPC’) was registered in the Police Station,
Fatehabad and all the three accused were arrested.=
Accused controverted the allegations and
claimed that they had good relations with Manju, who at the time of first
delivery developed complication and child died. Thereafter, when she was
about to deliver child, she again developed complication and resultantly
she died. =
The Trial Court after concluding the trial found the charge
under Sections 498-A and 304-B, IPC framed against accused Dinesh proved.
The Trial Court opined that the prosecution failed to prove the charges
under aforesaid sections against the other two accused Vinod and Rakesh
and accordingly acquitted them of the charge. The Additional Sessions
Judge convicted Dinesh and sentenced him to undergo RI for one year under
Section 498-A and to pay a fine of Rs.500/-. In default of payment of
fine, the accused-appellant was further directed to undergo RI for six
months. He was further sentenced to undergo RI for ten years under
Section 304-B, IPC. Both the sentences were ordered to run concurrently.=
Assailing the impugned judgment of conviction, Mr. Rishi
Malhotra, learned counsel appearing for the appellant, firstly
contended that in absence of evidence that the deceased soon before her
death was subjected to cruelty, the conviction of the appellant under
Section 304-B, IPC cannot at all be sustained. =
Lastly, it was contended that even admitting the evidence on
record the demand, if any, was made about four years before the death of
the deceased even then by no stretch of imagination it can be held that
soon before her death the deceased was subjected to cruelty or
harassment in connection with the demand for dowry.
Before we discuss the facts in evidence brought on record, we
wish to discuss the relevant provisions which are involved in this case.
As noticed, the appellant is convicted under Section 304-B of I.P.C.
The said section reads as under:-
“304-B- 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 purposes 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.”
11. Another relevant provision which needs to be discussed is
Section 113-B of the Indian Evidence Act, 1872. The said provision is
quoted hereinbelow:-
“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.
Explanation.-- For the purposes of this section," dowry
death" shall have the same meaning as in section 304B of the
Indian Penal Code.”
12. These two provisions in Indian Penal Code and Indian Evidence
Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986=
Considering the evidence referred to hereinbefore and the
conduct of the accused persons, there cannot be any difficulty in
holding that the deceased died because of cruelty, harassment and
demand for dowry. We are also of the considered opinion that there is
a proximate connection between cruelty, harassment and death of the
deceased as discussed above. There are sufficient materials showing
that the accused persons started demanding television and gold chain
etc. after the marriage and that their demand continued and the parents
were not allowed to meet their daughter unless their demands were
fulfilled.
2014 (April. Part)http://judis.nic.in/supremecourt/filename=41467
DIPAK MISRA, M.Y. EQBAL
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 578 OF 2011
Dinesh
…..Appellant
Versus
State of Haryana
….Respondent
J U D G M E N T
M.Y. EQBAL, J.
This appeal by special leave is directed against the judgment
and order dated 17th February, 2010 of the High Court of Punjab and
Haryana in Criminal Appeal No. 1006-SB of 1998 whereby learned Judge of
the High Court dismissed the appeal preferred by the appellant
challenging the judgment of conviction/sentence passed by the trial
court.
2. The prosecution version in a nutshell is that marriage of Manju
Bala was solemnized with Dinesh, appellant-accused about four years
before her death. Dowry in accordance with their financial capacity was
given by her parents at the time of marriage. However, appellant and his
two brothers, namely Vinod Kumar and Rakesh, were not satisfied with the
dowry and started harassing her for not bringing dowry to their
satisfaction. Although, mediators also requested accused persons not to
harass the deceased Manju Bala, their requests fell flat. It has also
been alleged that the accused persons, appellant and his two brothers,
did not permit the parents of Manju Bala to meet her for the past several
months prior to the death.
3. Manju Bala was carrying a pregnancy of about eight months when
accused Vinod went to the house of her parents on the fateful day i.e.
on 7.6.1994 and informed them that Manju Bala was seriously ill. When
Manju Bala’s father Ram Naresh and brother Raman were going to the house
of accused persons for seeing her, they noticed accused Dinesh and his
mother carrying Manju Bala in a tractor to Civil Hospital Fatehabad.
Driver of the tractor ignored their signal to stop tractor. On arriving
at Civil Hospital, they learnt that Manju Bala had died before
reaching the Hospital. Munni Bai – mother of the deceased suspected that
her daughter was murdered by her husband Dinesh and his brothers, namely
Vinod and Rakesh, for not satisfying their demand for dowry. On her
statement, FIR No.441 dated 8.6.1994 under section 498-A and 304-B,
Indian Penal Code (in short ‘IPC’) was registered in the Police Station,
Fatehabad and all the three accused were arrested. On finding a prima
facie case under aforesaid sections, the accused persons were charge
sheeted.
4. In order to prove its case, the prosecution examined nine
witnesses and closed the evidence. Factum of marriage between Manju Bala
and Dinesh was admitted when the accused persons were examined under
Section 313, Cr.P.C. However, it was denied that Manju Bala was ever
harassed for bringing dowry. Accused controverted the allegations and
claimed that they had good relations with Manju, who at the time of first
delivery developed complication and child died. Thereafter, when she was
about to deliver child, she again developed complication and resultantly
she died. During trial, the accused examined three witnesses in their
defence.
5. The Trial Court after concluding the trial found the charge
under Sections 498-A and 304-B, IPC framed against accused Dinesh proved.
The Trial Court opined that the prosecution failed to prove the charges
under aforesaid sections against the other two accused Vinod and Rakesh
and accordingly acquitted them of the charge. The Additional Sessions
Judge convicted Dinesh and sentenced him to undergo RI for one year under
Section 498-A and to pay a fine of Rs.500/-. In default of payment of
fine, the accused-appellant was further directed to undergo RI for six
months. He was further sentenced to undergo RI for ten years under
Section 304-B, IPC. Both the sentences were ordered to run concurrently.
6. Aggrieved by the judgment and order of the Trial Court,
appellant approached the High Court preferring Criminal Appeal No. 1006
of 1998. After hearing learned counsel for the parties and going through
the essential ingredients of Section 304-B, IPC, learned Judge of the
High Court dismissed the appeal observing that there is evidence with
regard to the factum of persisting demand of dowry and on account of
failure to meet the demand for dowry, Manju Bala was compelled to commit
suicide within a period of four years of marriage, though the precise
date of her marriage is not in evidence but both sides admitted that
marriage was solemnized about four years prior to her death.
7. We have gone through the judgment passed by Trial Court and also
by the Appellate Court. Both the Courts on appreciation of entire
evidence came to the conclusion that the prosecution has proved the
charges against the appellant. The High Court while affirming the
judgment of the Trial Court has considered the provision of Section 304-
B, I.P.C. and Section 113-B of the Indian Evidence Act. The High Court
relied upon the evidences of PWs.1, 2 and 5 to come to the conclusion
that there had been persistent demand for dowry and also the complainant
was not allowed to meet the deceased and further the death was caused by
the consumption of oreganophosphorus compound, which conclusively
establishes the appellant guilty under Section 304-B of the Indian Penal
Code. The High Court further recorded the findings that the totality of
evidence reveal persisting demand for dowry and on the failure of the
complainant to meet the demand, the deceased was compelled to commit the
suicide within the period of four years of marriage.
8. Assailing the impugned judgment of conviction, Mr. Rishi
Malhotra, learned counsel appearing for the appellant, firstly
contended that in absence of evidence that the deceased soon before her
death was subjected to cruelty, the conviction of the appellant under
Section 304-B, IPC cannot at all be sustained. Learned counsel also
submits that Munni Bai, mother of the deceased, who was examined as PW-1
deposed that she was not aware about the reason of the death of the
deceased. The witness was declared hostile by the prosecution and during
her cross-examination she categorically admitted that the police did not
record her statement according to her narration. Learned counsel has
further drawn our attention to the evidence of these witnesses on cross
examination where she was confronted with the fact of alleged demand for
dowry where the witness admitted that she had not stated before the
police that accused were demanding T.V. and a golden chain. Learned
counsel contended that PW-2 Rakesh Kumar, who was one of the mediators
in the said marriage, wrongly stated that the alleged demand for dowry
by the accused persons were made approximately four years before the
date of occurrence. On the basis of these evidence, learned counsel
contended that the courts below without looking into the various
material contradictions have passed the impugned order of conviction.
Learned counsel submitted that the High Court completely overlooked the
most essential ingredient i.e. soon before her death the deceased must
have subjected to cruelty or harassment in connection with demand for
dowry. Lastly, it was contended that even admitting the evidence on
record the demand, if any, was made about four years before the death of
the deceased even then by no stretch of imagination it can be held that
soon before her death the deceased was subjected to cruelty or
harassment in connection with the demand for dowry.
9. Per contra, Mr. Rakesh Kumar, learned counsel appearing for the
prosecution, has supported the impugned judgment by drawing our
attention to the material evidence brought on record by the prosecution.
10. Before we discuss the facts in evidence brought on record, we
wish to discuss the relevant provisions which are involved in this case.
As noticed, the appellant is convicted under Section 304-B of I.P.C.
The said section reads as under:-
“304-B- 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 purposes 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.”
11. Another relevant provision which needs to be discussed is
Section 113-B of the Indian Evidence Act, 1872. The said provision is
quoted hereinbelow:-
“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.
Explanation.-- For the purposes of this section," dowry
death" shall have the same meaning as in section 304B of the
Indian Penal Code.”
12. These two provisions in Indian Penal Code and Indian Evidence
Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986
with a view to combating the increasing menace of dowry death. The
legislative intent of enacting these provisions is to curb the menace of
dowry death. This Court while considering the legislative intent in the
case of State of Punjab vs. Iqbal Singh, AIR (1991) SC 1532 observed as
under:-
“8. The legislative intent is clear to curb the menace of
dowry deaths, etc., with a firm hand. We must keep in mind
this legislative intent. It must be remembered that since
crimes are generally committed in the privacy of residential
homes and in secrecy, independent and direct evidence is not
easy to get. That is why the legislature has by introducing
Sections 113-A and 113-B in the Evidence Act tried to
strengthen the prosecution hands by permitting a presumption
to be raised if certain foundational facts are established
and the unfortunate event has taken place within seven years
of marriage. This period of seven years is considered to be
the turbulent one after which the legislature assumes that
the couple would have settled down in life. If a married
women is subjected to cruelty or harassment by her husband
or his family members Section 498-A, IPC would be attracted.
If such cruelty or harassment was inflicted by the husband
or his relative for, or in connection with, any demand for
dowry immediately preceding death by burns and bodily injury
or in abnormal circumstances within seven years of marriage,
such husband or relative is deemed to have caused her death
and is liable to be punished under Section 304-B, IPC. When
the question at issue is whether a person is guilty of dowry
death of a woman and the evidence discloses that immediately
before her death she was subjected by such person to cruelty
and/or harassment for, or in connection with, any demand for
dowry, Section 113-B, Evidence Act provides that the court
shall presume that such person had caused the dowry death.
Of course if there is proof of the person having
intentionally caused her death that would attract Section
302, IPC. Then we have a situation where the husband or his
relative by his wilful conduct creates a situation which he
knows will drive the woman to commit suicide and she
actually does so, the case would squarely fall within the
ambit of Section 306, IPC. In such a case the conduct of the
person would tantamount to inciting or provoking or
virtually pushing the woman into a desperate situation of no
return which would compel her to put an end to her miseries
by committing suicide.”
13. If we read the aforementioned two provisions i.e. Section 304-
B, IPC and Section 113-B of the Evidence Act, it is evident that the
prosecution must have brought on record the materials to show that soon
before her death the victim was subjected to cruelty or harassment.
14. In the case of Ramesh Panjiyar vs. State of Bihar, (2005) 2 SCC
388, this Court held that the prosecution has to rule out the
possibility of a natural or incidental death so as to bring it within
the purview of “Death occurring otherwise than in the normal
circumstances”. The expression “soon before” is very relevant where
Section 113-B of the Evidence Act and Section 304-B, IPC are pressed
into service. Hence, the prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment only attracting
the provision of Section 113-B.
15. The expression “soon before” is a relative term as held by this
Court, which is required to be considered under the specific
circumstances of each case and no straight jacket formula can be laid
down by fixing any time of allotment. It can be said that the term
“soon before” is synonyms with the term “immediately before”. The
determination of the period which can come within term “soon before” is
left to be determined by courts depending upon the facts and
circumstances of each case.
16. In the case of Kanas Raj vs. State of Punjab & Ors., (2000) 5
SCC 207, it was held that in case of dowry death the circumstances
showing the existence of cruelty or harassment to the deceased are not
restricted to a particular instances 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 of dowry is shown to have persisted, it
shall be deemed to be “soon before death”.
17. Prima facie we are of the view that neither definite period has
been indicted in the aforementioned section nor the expression “soon
before” has been defined. In the case of Dhian Singh & Anr. vs. State
of Punjab, (2004) 7 SCC 759, this Court held that:-
“The contention of the appellant’s counsel is that even
if it is proved that there was cruelty on account of demand
of dowry, such cruelty shall be soon before the death and
there must be proximate connection between the alleged
cruelty and the death of the deceased. It is true that the
prosecution has to establish that there must be nexus
between the cruelty and the suicide and the cruelty meted
out must have induced the victim to commit suicide. The
appellant has no case that there was any other reason for
her to commit suicide. The evidence shows that the first
appellant had demanded dowry and he had sent her away from
his house and only after mediation she was taken back to the
appellant’s house and death happened within a period of two
months thereafter. These facts clearly show that the suicide
was the result of the harassment or cruelty meted out to the
deceased. The presumption under Section 113-B of the Indian
Evidence Act could be invoked against the appellant and the
Sessions Court rightly found the appellant guilty of the
offence punishable under Section 304-B IPC and Section 201
IPC.”
18. Coming to the facts of the present case, it has been
sufficiently proved that the death was caused due to consumption of
oreganophosphorus compound which is a pesticide. Dr. S.P. Mimani and
Dr. S.P. Dadich (PW-9) conducted postmortem examination on the dead
body of the deceased. They collected viscera including parts of
stomach, intestine, lung, kidney and blood. On examination of the
viscera it was found containing oreganophosphorus compound which is a
poisonous substance. In the opinion of Dr. S.P. Mimani (PW-9) the
death was caused by the aforementioned compound. Admittedly, the
marriage was solemnised before four years from the date of occurrence.
The defence of the accused that the death was caused due to some
complication developed at the advanced stage of pregnancy, is without
any basis. The mother of the deceased, who was examined as PW-1,
deposed that at the time of marriage dowry was paid as per their
financial position. After the marriage the deceased Manju Bala visited
her paternal home and informed her parents that her husband Dinesh and
his brothers Vinod Kumar and Rakesh were ill-treating her for not
bringing television and gold chain in dowry. This was brought to the
notice of Suresh and Rakesh, who acted as mediators at the time of
settlement of marriage proposal and requested the accused persons not
to harass the deceased but they did not heed to it. PW-1 further
deposed that the accused person did not allow them to meet their
daughter. The evidence of PW- 1 was corroborated by Ram Naresh (PW-5),
who also reiterated that the accused persons were demanding television
and a gold chain and the deceased was subjected to cruelty for not
bringing enough dowry. PW-5 further deposed that when he went to the
house of accused persons at the time of marriage of his brother Vinod,
he was again reminded that he should come to their house only after
giving television and gold chain. From the evidence of other
witnesses, it is sufficiently established that there had been
persistent demand for dowry from the side of the accused persons and
for non-fulfilment of their demand the deceased Manju Bala was being
subjected to cruelty and harassment. Because of persistent demand for
dowry and continuous torture, harassment and cruelty meted out on the
deceased Manju Bala, she died by consuming pesticide.
19. Considering the evidence referred to hereinbefore and the
conduct of the accused persons, there cannot be any difficulty in
holding that the deceased died because of cruelty, harassment and
demand for dowry. We are also of the considered opinion that there is
a proximate connection between cruelty, harassment and death of the
deceased as discussed above. There are sufficient materials showing
that the accused persons started demanding television and gold chain
etc. after the marriage and that their demand continued and the parents
were not allowed to meet their daughter unless their demands were
fulfilled.
20. In the facts and circumstances of the case, both the Sessions
Court and the High Court have come to the correct finding that the
accused is guilty of offence under Section 304-B of the IPC and that
the presumption contained in Section 113-B of the Evidence Act is fully
applicable to the facts of the case.
21. In our considered opinion, therefore, the judgment of
conviction passed by the courts below needs no interference by this
Court. Hence, there is no merit in this appeal and is accordingly
dismissed. The appellant shall be taken into custody forthwith to
serve the remaining sentence.
………………………….J.
(Dipak Misra)
………………………….J.
(M.Y. Eqbal)
New Delhi,
April 25, 2014.
ITEM NO.1A COURT NO.12 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 578 OF 2011
DINESH Appellant(s)
VERSUS
STATE OF HARYANA Respondent(s)
[HEARD BY : HON'BLE DIPAK MISRA AND HON'BLE M.Y.EQBAL, JJ.]
Date:25/04/2014 This Appeal was called on for Judgment today.
For Appellant(s) Mr. Rishi Malhotra,Adv.
For Respondent(s) Mr.Kamal Mohan Gupta,Adv.(Not Present)
Hon'ble Mr. Justice M.Y.Eqbal pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.
For the reasons recorded in the Reportable judgment, which is
placed on the file, the appeal is dismissed.
The appellant shall be taken into custody forthwith to serve the
remaining sentence.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Assistant Registrar |
| | | |
When
Manju Bala’s father Ram Naresh and brother Raman were going to the house
of accused persons for seeing her, they noticed accused Dinesh and his
mother carrying Manju Bala in a tractor to Civil Hospital Fatehabad.
Driver of the tractor ignored their signal to stop tractor. On arriving
at Civil Hospital, they learnt that Manju Bala had died before
reaching the Hospital. Munni Bai – mother of the deceased suspected that
her daughter was murdered by her husband Dinesh and his brothers, namely
Vinod and Rakesh, for not satisfying their demand for dowry. On her
statement, FIR No.441 dated 8.6.1994 under section 498-A and 304-B,
Indian Penal Code (in short ‘IPC’) was registered in the Police Station,
Fatehabad and all the three accused were arrested.=
Accused controverted the allegations and
claimed that they had good relations with Manju, who at the time of first
delivery developed complication and child died. Thereafter, when she was
about to deliver child, she again developed complication and resultantly
she died. =
The Trial Court after concluding the trial found the charge
under Sections 498-A and 304-B, IPC framed against accused Dinesh proved.
The Trial Court opined that the prosecution failed to prove the charges
under aforesaid sections against the other two accused Vinod and Rakesh
and accordingly acquitted them of the charge. The Additional Sessions
Judge convicted Dinesh and sentenced him to undergo RI for one year under
Section 498-A and to pay a fine of Rs.500/-. In default of payment of
fine, the accused-appellant was further directed to undergo RI for six
months. He was further sentenced to undergo RI for ten years under
Section 304-B, IPC. Both the sentences were ordered to run concurrently.=
Assailing the impugned judgment of conviction, Mr. Rishi
Malhotra, learned counsel appearing for the appellant, firstly
contended that in absence of evidence that the deceased soon before her
death was subjected to cruelty, the conviction of the appellant under
Section 304-B, IPC cannot at all be sustained. =
Lastly, it was contended that even admitting the evidence on
record the demand, if any, was made about four years before the death of
the deceased even then by no stretch of imagination it can be held that
soon before her death the deceased was subjected to cruelty or
harassment in connection with the demand for dowry.
Before we discuss the facts in evidence brought on record, we
wish to discuss the relevant provisions which are involved in this case.
As noticed, the appellant is convicted under Section 304-B of I.P.C.
The said section reads as under:-
“304-B- 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 purposes 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.”
11. Another relevant provision which needs to be discussed is
Section 113-B of the Indian Evidence Act, 1872. The said provision is
quoted hereinbelow:-
“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.
Explanation.-- For the purposes of this section," dowry
death" shall have the same meaning as in section 304B of the
Indian Penal Code.”
12. These two provisions in Indian Penal Code and Indian Evidence
Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986=
Considering the evidence referred to hereinbefore and the
conduct of the accused persons, there cannot be any difficulty in
holding that the deceased died because of cruelty, harassment and
demand for dowry. We are also of the considered opinion that there is
a proximate connection between cruelty, harassment and death of the
deceased as discussed above. There are sufficient materials showing
that the accused persons started demanding television and gold chain
etc. after the marriage and that their demand continued and the parents
were not allowed to meet their daughter unless their demands were
fulfilled.
2014 (April. Part)http://judis.nic.in/supremecourt/filename=41467
DIPAK MISRA, M.Y. EQBAL
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 578 OF 2011
Dinesh
…..Appellant
Versus
State of Haryana
….Respondent
J U D G M E N T
M.Y. EQBAL, J.
This appeal by special leave is directed against the judgment
and order dated 17th February, 2010 of the High Court of Punjab and
Haryana in Criminal Appeal No. 1006-SB of 1998 whereby learned Judge of
the High Court dismissed the appeal preferred by the appellant
challenging the judgment of conviction/sentence passed by the trial
court.
2. The prosecution version in a nutshell is that marriage of Manju
Bala was solemnized with Dinesh, appellant-accused about four years
before her death. Dowry in accordance with their financial capacity was
given by her parents at the time of marriage. However, appellant and his
two brothers, namely Vinod Kumar and Rakesh, were not satisfied with the
dowry and started harassing her for not bringing dowry to their
satisfaction. Although, mediators also requested accused persons not to
harass the deceased Manju Bala, their requests fell flat. It has also
been alleged that the accused persons, appellant and his two brothers,
did not permit the parents of Manju Bala to meet her for the past several
months prior to the death.
3. Manju Bala was carrying a pregnancy of about eight months when
accused Vinod went to the house of her parents on the fateful day i.e.
on 7.6.1994 and informed them that Manju Bala was seriously ill. When
Manju Bala’s father Ram Naresh and brother Raman were going to the house
of accused persons for seeing her, they noticed accused Dinesh and his
mother carrying Manju Bala in a tractor to Civil Hospital Fatehabad.
Driver of the tractor ignored their signal to stop tractor. On arriving
at Civil Hospital, they learnt that Manju Bala had died before
reaching the Hospital. Munni Bai – mother of the deceased suspected that
her daughter was murdered by her husband Dinesh and his brothers, namely
Vinod and Rakesh, for not satisfying their demand for dowry. On her
statement, FIR No.441 dated 8.6.1994 under section 498-A and 304-B,
Indian Penal Code (in short ‘IPC’) was registered in the Police Station,
Fatehabad and all the three accused were arrested. On finding a prima
facie case under aforesaid sections, the accused persons were charge
sheeted.
4. In order to prove its case, the prosecution examined nine
witnesses and closed the evidence. Factum of marriage between Manju Bala
and Dinesh was admitted when the accused persons were examined under
Section 313, Cr.P.C. However, it was denied that Manju Bala was ever
harassed for bringing dowry. Accused controverted the allegations and
claimed that they had good relations with Manju, who at the time of first
delivery developed complication and child died. Thereafter, when she was
about to deliver child, she again developed complication and resultantly
she died. During trial, the accused examined three witnesses in their
defence.
5. The Trial Court after concluding the trial found the charge
under Sections 498-A and 304-B, IPC framed against accused Dinesh proved.
The Trial Court opined that the prosecution failed to prove the charges
under aforesaid sections against the other two accused Vinod and Rakesh
and accordingly acquitted them of the charge. The Additional Sessions
Judge convicted Dinesh and sentenced him to undergo RI for one year under
Section 498-A and to pay a fine of Rs.500/-. In default of payment of
fine, the accused-appellant was further directed to undergo RI for six
months. He was further sentenced to undergo RI for ten years under
Section 304-B, IPC. Both the sentences were ordered to run concurrently.
6. Aggrieved by the judgment and order of the Trial Court,
appellant approached the High Court preferring Criminal Appeal No. 1006
of 1998. After hearing learned counsel for the parties and going through
the essential ingredients of Section 304-B, IPC, learned Judge of the
High Court dismissed the appeal observing that there is evidence with
regard to the factum of persisting demand of dowry and on account of
failure to meet the demand for dowry, Manju Bala was compelled to commit
suicide within a period of four years of marriage, though the precise
date of her marriage is not in evidence but both sides admitted that
marriage was solemnized about four years prior to her death.
7. We have gone through the judgment passed by Trial Court and also
by the Appellate Court. Both the Courts on appreciation of entire
evidence came to the conclusion that the prosecution has proved the
charges against the appellant. The High Court while affirming the
judgment of the Trial Court has considered the provision of Section 304-
B, I.P.C. and Section 113-B of the Indian Evidence Act. The High Court
relied upon the evidences of PWs.1, 2 and 5 to come to the conclusion
that there had been persistent demand for dowry and also the complainant
was not allowed to meet the deceased and further the death was caused by
the consumption of oreganophosphorus compound, which conclusively
establishes the appellant guilty under Section 304-B of the Indian Penal
Code. The High Court further recorded the findings that the totality of
evidence reveal persisting demand for dowry and on the failure of the
complainant to meet the demand, the deceased was compelled to commit the
suicide within the period of four years of marriage.
8. Assailing the impugned judgment of conviction, Mr. Rishi
Malhotra, learned counsel appearing for the appellant, firstly
contended that in absence of evidence that the deceased soon before her
death was subjected to cruelty, the conviction of the appellant under
Section 304-B, IPC cannot at all be sustained. Learned counsel also
submits that Munni Bai, mother of the deceased, who was examined as PW-1
deposed that she was not aware about the reason of the death of the
deceased. The witness was declared hostile by the prosecution and during
her cross-examination she categorically admitted that the police did not
record her statement according to her narration. Learned counsel has
further drawn our attention to the evidence of these witnesses on cross
examination where she was confronted with the fact of alleged demand for
dowry where the witness admitted that she had not stated before the
police that accused were demanding T.V. and a golden chain. Learned
counsel contended that PW-2 Rakesh Kumar, who was one of the mediators
in the said marriage, wrongly stated that the alleged demand for dowry
by the accused persons were made approximately four years before the
date of occurrence. On the basis of these evidence, learned counsel
contended that the courts below without looking into the various
material contradictions have passed the impugned order of conviction.
Learned counsel submitted that the High Court completely overlooked the
most essential ingredient i.e. soon before her death the deceased must
have subjected to cruelty or harassment in connection with demand for
dowry. Lastly, it was contended that even admitting the evidence on
record the demand, if any, was made about four years before the death of
the deceased even then by no stretch of imagination it can be held that
soon before her death the deceased was subjected to cruelty or
harassment in connection with the demand for dowry.
9. Per contra, Mr. Rakesh Kumar, learned counsel appearing for the
prosecution, has supported the impugned judgment by drawing our
attention to the material evidence brought on record by the prosecution.
10. Before we discuss the facts in evidence brought on record, we
wish to discuss the relevant provisions which are involved in this case.
As noticed, the appellant is convicted under Section 304-B of I.P.C.
The said section reads as under:-
“304-B- 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 purposes 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.”
11. Another relevant provision which needs to be discussed is
Section 113-B of the Indian Evidence Act, 1872. The said provision is
quoted hereinbelow:-
“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.
Explanation.-- For the purposes of this section," dowry
death" shall have the same meaning as in section 304B of the
Indian Penal Code.”
12. These two provisions in Indian Penal Code and Indian Evidence
Act have been inserted by the Dowry Prohibition (Amendment) Act, 1986
with a view to combating the increasing menace of dowry death. The
legislative intent of enacting these provisions is to curb the menace of
dowry death. This Court while considering the legislative intent in the
case of State of Punjab vs. Iqbal Singh, AIR (1991) SC 1532 observed as
under:-
“8. The legislative intent is clear to curb the menace of
dowry deaths, etc., with a firm hand. We must keep in mind
this legislative intent. It must be remembered that since
crimes are generally committed in the privacy of residential
homes and in secrecy, independent and direct evidence is not
easy to get. That is why the legislature has by introducing
Sections 113-A and 113-B in the Evidence Act tried to
strengthen the prosecution hands by permitting a presumption
to be raised if certain foundational facts are established
and the unfortunate event has taken place within seven years
of marriage. This period of seven years is considered to be
the turbulent one after which the legislature assumes that
the couple would have settled down in life. If a married
women is subjected to cruelty or harassment by her husband
or his family members Section 498-A, IPC would be attracted.
If such cruelty or harassment was inflicted by the husband
or his relative for, or in connection with, any demand for
dowry immediately preceding death by burns and bodily injury
or in abnormal circumstances within seven years of marriage,
such husband or relative is deemed to have caused her death
and is liable to be punished under Section 304-B, IPC. When
the question at issue is whether a person is guilty of dowry
death of a woman and the evidence discloses that immediately
before her death she was subjected by such person to cruelty
and/or harassment for, or in connection with, any demand for
dowry, Section 113-B, Evidence Act provides that the court
shall presume that such person had caused the dowry death.
Of course if there is proof of the person having
intentionally caused her death that would attract Section
302, IPC. Then we have a situation where the husband or his
relative by his wilful conduct creates a situation which he
knows will drive the woman to commit suicide and she
actually does so, the case would squarely fall within the
ambit of Section 306, IPC. In such a case the conduct of the
person would tantamount to inciting or provoking or
virtually pushing the woman into a desperate situation of no
return which would compel her to put an end to her miseries
by committing suicide.”
13. If we read the aforementioned two provisions i.e. Section 304-
B, IPC and Section 113-B of the Evidence Act, it is evident that the
prosecution must have brought on record the materials to show that soon
before her death the victim was subjected to cruelty or harassment.
14. In the case of Ramesh Panjiyar vs. State of Bihar, (2005) 2 SCC
388, this Court held that the prosecution has to rule out the
possibility of a natural or incidental death so as to bring it within
the purview of “Death occurring otherwise than in the normal
circumstances”. The expression “soon before” is very relevant where
Section 113-B of the Evidence Act and Section 304-B, IPC are pressed
into service. Hence, the prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment only attracting
the provision of Section 113-B.
15. The expression “soon before” is a relative term as held by this
Court, which is required to be considered under the specific
circumstances of each case and no straight jacket formula can be laid
down by fixing any time of allotment. It can be said that the term
“soon before” is synonyms with the term “immediately before”. The
determination of the period which can come within term “soon before” is
left to be determined by courts depending upon the facts and
circumstances of each case.
16. In the case of Kanas Raj vs. State of Punjab & Ors., (2000) 5
SCC 207, it was held that in case of dowry death the circumstances
showing the existence of cruelty or harassment to the deceased are not
restricted to a particular instances 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 of dowry is shown to have persisted, it
shall be deemed to be “soon before death”.
17. Prima facie we are of the view that neither definite period has
been indicted in the aforementioned section nor the expression “soon
before” has been defined. In the case of Dhian Singh & Anr. vs. State
of Punjab, (2004) 7 SCC 759, this Court held that:-
“The contention of the appellant’s counsel is that even
if it is proved that there was cruelty on account of demand
of dowry, such cruelty shall be soon before the death and
there must be proximate connection between the alleged
cruelty and the death of the deceased. It is true that the
prosecution has to establish that there must be nexus
between the cruelty and the suicide and the cruelty meted
out must have induced the victim to commit suicide. The
appellant has no case that there was any other reason for
her to commit suicide. The evidence shows that the first
appellant had demanded dowry and he had sent her away from
his house and only after mediation she was taken back to the
appellant’s house and death happened within a period of two
months thereafter. These facts clearly show that the suicide
was the result of the harassment or cruelty meted out to the
deceased. The presumption under Section 113-B of the Indian
Evidence Act could be invoked against the appellant and the
Sessions Court rightly found the appellant guilty of the
offence punishable under Section 304-B IPC and Section 201
IPC.”
18. Coming to the facts of the present case, it has been
sufficiently proved that the death was caused due to consumption of
oreganophosphorus compound which is a pesticide. Dr. S.P. Mimani and
Dr. S.P. Dadich (PW-9) conducted postmortem examination on the dead
body of the deceased. They collected viscera including parts of
stomach, intestine, lung, kidney and blood. On examination of the
viscera it was found containing oreganophosphorus compound which is a
poisonous substance. In the opinion of Dr. S.P. Mimani (PW-9) the
death was caused by the aforementioned compound. Admittedly, the
marriage was solemnised before four years from the date of occurrence.
The defence of the accused that the death was caused due to some
complication developed at the advanced stage of pregnancy, is without
any basis. The mother of the deceased, who was examined as PW-1,
deposed that at the time of marriage dowry was paid as per their
financial position. After the marriage the deceased Manju Bala visited
her paternal home and informed her parents that her husband Dinesh and
his brothers Vinod Kumar and Rakesh were ill-treating her for not
bringing television and gold chain in dowry. This was brought to the
notice of Suresh and Rakesh, who acted as mediators at the time of
settlement of marriage proposal and requested the accused persons not
to harass the deceased but they did not heed to it. PW-1 further
deposed that the accused person did not allow them to meet their
daughter. The evidence of PW- 1 was corroborated by Ram Naresh (PW-5),
who also reiterated that the accused persons were demanding television
and a gold chain and the deceased was subjected to cruelty for not
bringing enough dowry. PW-5 further deposed that when he went to the
house of accused persons at the time of marriage of his brother Vinod,
he was again reminded that he should come to their house only after
giving television and gold chain. From the evidence of other
witnesses, it is sufficiently established that there had been
persistent demand for dowry from the side of the accused persons and
for non-fulfilment of their demand the deceased Manju Bala was being
subjected to cruelty and harassment. Because of persistent demand for
dowry and continuous torture, harassment and cruelty meted out on the
deceased Manju Bala, she died by consuming pesticide.
19. Considering the evidence referred to hereinbefore and the
conduct of the accused persons, there cannot be any difficulty in
holding that the deceased died because of cruelty, harassment and
demand for dowry. We are also of the considered opinion that there is
a proximate connection between cruelty, harassment and death of the
deceased as discussed above. There are sufficient materials showing
that the accused persons started demanding television and gold chain
etc. after the marriage and that their demand continued and the parents
were not allowed to meet their daughter unless their demands were
fulfilled.
20. In the facts and circumstances of the case, both the Sessions
Court and the High Court have come to the correct finding that the
accused is guilty of offence under Section 304-B of the IPC and that
the presumption contained in Section 113-B of the Evidence Act is fully
applicable to the facts of the case.
21. In our considered opinion, therefore, the judgment of
conviction passed by the courts below needs no interference by this
Court. Hence, there is no merit in this appeal and is accordingly
dismissed. The appellant shall be taken into custody forthwith to
serve the remaining sentence.
………………………….J.
(Dipak Misra)
………………………….J.
(M.Y. Eqbal)
New Delhi,
April 25, 2014.
ITEM NO.1A COURT NO.12 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 578 OF 2011
DINESH Appellant(s)
VERSUS
STATE OF HARYANA Respondent(s)
[HEARD BY : HON'BLE DIPAK MISRA AND HON'BLE M.Y.EQBAL, JJ.]
Date:25/04/2014 This Appeal was called on for Judgment today.
For Appellant(s) Mr. Rishi Malhotra,Adv.
For Respondent(s) Mr.Kamal Mohan Gupta,Adv.(Not Present)
Hon'ble Mr. Justice M.Y.Eqbal pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.
For the reasons recorded in the Reportable judgment, which is
placed on the file, the appeal is dismissed.
The appellant shall be taken into custody forthwith to serve the
remaining sentence.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Assistant Registrar |
| | | |
