Full Judgment Text
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CASE NO.:
Appeal (crl.) 384 of 1998
PETITIONER:
The State of Andhra Pradesh
RESPONDENT:
Raj Gopal Asawa and Anr.
DATE OF JUDGMENT: 17/03/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The State of Andhra Pradesh has questioned legality of
the judgment rendered by a Division Bench of the Andhra
Pradesh High Court holding respondents to be not guilty of
the alleged offences for which the Trial Court had convicted
them i.e. offences punishable under Section 304B and Section
498A of the Indian Penal Code 1860 (for short ’the IPC’).
Three persons faced trial relating to the alleged suicidal
death of one Mangala (hereinafter referred to as ’the
deceased’). A-3 was her husband, while A-1 and A-2 were her
brother-in-law and mother-in-law respectively. During the
pendency of the appeal before the High Court, A-2 expired
and the appeal was held to be abated so far she was
concerned.
Accusations which led to the trial were as follows:
The deceased and A-3 were married on 6.7.1989.
Admittedly, the accused committed suicide at about 11.30
a.m. on the date of occurrence i.e. 2.4.1990. The accused
persons took her to the hospital where she was declared to
be dead. The Inspector of Police sent a complaint to the SHO
to register a case. FIR was registered and investigation was
undertaken. On completion of investigation, charge sheet was
placed and the accused persons faced trial. They pleaded
innocence. To further the prosecution version 10 witnesses
were examined while to substantiate its plea of innocence,
accused persons examined 12 witnesses. The Trial Court found
that the evidence of PWs 2, 3, 4 and 6 about the demand of
dowry made by A-1 and A-2 was cogent and credible. A-3 was
held guilty as he extended tacit support, albet indirectly.
Placing reliance on the evidence of PWs 2, 3, 4 and 6 it was
held that the demand of dowry has been clearly established.
Though it was noticed that there was no direct evidence of
A-3, the husband making any demand of dowry, his silence was
construed to be an act of endorsing the demand and he was,
as noted above, held guilty.
In the appeal before the High Court the primary stand
taken was that there was no evidence to show about any
agreement or demand for payment of dowry before the
marriage. Even if any subsequent demand was made as alleged,
that cannot bring in application of Section 304B IPC. It
was further submitted that no grievance has been ever made
before DW-1, the eldest member of the family of the accused
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persons about the alleged demand. It was the case of PWs 2,
3, 4 and 6 that any demand was made before the marriage. The
High Court by the impugned judgment held that on the grounds
urged by the accused persons, conviction cannot be
maintained. With reference to a decision of the Andhra
Pradesh High Court in Ayyala Rambabu v. State of Andhra
Pradesh (1993 (1) ALT (Crl.) 73) it was held that to
constitute "dowry", the demand should be made directly or
indirectly, either at the time of marriage, or before the
marriage or at any time after the marriage in connection
with the marriage of the parties. If there was no agreement
between the parties to give or take any property or valuable
security or where the property or valuable security has been
given or taken but thereafter further amounts are demanded
after the marriage, such demands will not fall within the
meaning of dowry. So far as A-3 is concerned, it was held
that there was no evidence of his having ever demanded
dowry.
Mr. G. Prabhakar, learned counsel for the State
submitted that the legal position has not been properly
appreciated by the High Court. The view taken that
subsequent demand does not constitute dowry is clearly
untenable. Further, the conclusion that the demand of dowry
has not been established merely because no grievance was
made before the father-in-law (DW-1) cannot be a ground to
discard the credible evidence of PWs 2, 3, 4 and 6.
In response, learned counsel for the accused-
respondents submitted that the view taken by the High Court
both on the interpretation of the term "dowry" and the
factual aspects is correct. Further in order to attract
application of Section 304B, there must be a proximity link
of the demand with the alleged suicide. In the absence of
any evidence in that regard, the conviction has been rightly
set aside. Further, there being no demand of any dowry by
the respondent (A-3), the judgment of the High Court so far
as he is concerned, does not suffer from any infirmity.
Sections 304B and Section 498A read as follows:
"304-B. Dowry Death- (1) Where the death of
a woman is caused by any burns or bodily
injury or occurs otherwise than under normal
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 \026 For the purpose of this sub-
section ’dowry’ shall have same meaning as
in Section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life."
"498-A: Husband or relative of husband of a
woman subjecting her to cruelty- Whoever,
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being the husband or the relative of the
husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment
for a term which may extend to three years
and shall also be liable to fine.
Explanation \026 For the purpose of this
section ’cruelty’ means \026
(a) any wilful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any
unlawful demand for any property or valuable
security or is on account of failure by her
or any person related to her to meet such
demand."
The term "dowry" has been defined in Section 2 of the
Dowry Prohibition Act, 1961 (in short ’Dowry Act’) as
under:-
"Section 2. Definition of ’dowry’ \026 In this
Act, ’dowry’ means any property or valuable
security given or agreed to be given either
directly or indirectly \026
(a) by one party to a marriage to the
other party to the marriage; or
(b) by the parents of either party to
a marriage or by any other person, to
either party to the marriage or to any
other person,
at or before or any time after the marriage
in connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.
Explanation I- For the removal of doubts, it
is hereby declared that any presents made at
the time of a marriage to either party to
the marriage in the form of cash, ornaments,
clothes or other articles, shall not be
deemed to be dowry within the meaning of
this section, unless they are made as
consideration for the marriage of the said
parties.
Explanation II- The expression ’valuable
security’ has the same meaning in Section 30
of the Indian Penal Code (45 of 1860)."
Explanation to Section 304-B refers to dowry "as having
the same meaning as in Section 2 of the Act", the question
is : what is the periphery of the dowry as defined therein ?
The argument is, there has to be an agreement at the time of
the marriage in view of the words "agreed to be given"
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occurring therein, and in the absence of any such evidence
it would not constitute to be a dowry. It is noticeable, as
this definition by amendment includes not only the period
before and at the marriage but also the period subsequent to
the marriage. This position was highlighted in Pawan Kumar
and Ors. v. State of Haryana (1998 (3) SCC 309).
The offence alleged against the respondents is under
Section 304-B IPC which makes "demand of dowry" itself
punishable. Demand neither conceives nor would conceive of
any agreement. If for convicting any offender, agreement for
dowry is to be proved, hardly any offenders would come under
the clutches of law. When Section 304-B refers to "demand of
dowry", it refers to the demand of property or valuable
security as referred to in the definition of "dowry" under
the Act. The argument that there is no demand of dowry, in
the present case, has no force. In cases of dowry deaths and
suicides, circumstantial evidence plays an important role
and inferences can be drawn on the basis of such evidence.
That could be either direct or indirect. It is significant
that Section 4 of the Act, was also amended by means of Act
63 of 1984, under which it is an offence to demand dowry
directly or indirectly from the parents or other relatives
or guardian of a bride. The word "agreement" referred to in
Section 2 has to be inferred on the facts and circumstances
of each case. The interpretation that the respondents seek,
that conviction can only be if there is agreement for dowry,
is misconceived. This would be contrary to the mandate and
object of the Act. "Dowry" definition is to be interpreted
with the other provisions of the Act including Section 3,
which refers to giving or taking dowry and Section 4 which
deals with a penalty for demanding dowry, under the Act and
the IPC. This makes it clear that even demand of dowry on
other ingredients being satisfied is punishable. It is not
always necessary that there be any agreement for dowry.
Section 113-B of the Evidence Act is also relevant for
the case at hand. Both Section 304-B IPC and Section 113-B
of the Evidence Act were inserted as noted earlier by the
Dowry Prohibition (Amendment) Act 43 of 1986 with a view to
combat the increasing menace of dowry deaths. Section 113-B
reads as follows:-
"113-B: Presumption as to dowry death- When
the question is whether a person has
committed the dowry death of a woman and it
is shown that soon before her death such
woman has been subjected by such person to
cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall
presume that such person had caused the
dowry death.
Explanation \026 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 10th August, 1988 on ’Dowry Deaths and Law
Reform’. Keeping in view the impediment in the pre-existing
law in securing evidence to prove dowry related deaths,
legislature thought it wise to insert a provision relating
to presumption of dowry death on proof of certain
essentials. It is in this background presumptive Section
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113-B in the Evidence Act has been inserted. As per the
definition of ’dowry death’ in Section 304-B IPC and the
wording in the presumptive Section 113-B of the Evidence
Act, one of the essential ingredients, amongst others, in
both the provisions is that the concerned woman must have
been "soon before her death" subjected to cruelty or
harassment "for or in connection with the demand of
dowry". Presumption under Section 113-B is a presumption
of law. On proof of the essentials mentioned therein, it
becomes obligatory on the Court to raise a presumption that
the accused caused the dowry death. The presumption shall
be raised only on proof of the following essentials:
(1) The question before the Court must be
whether the accused has committed the dowry
death of a woman. (This means that the
presumption can be raised only if the
accused is being tried for the offence under
Section 304-B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or
in connection with any demand for dowry.
(4) Such cruelty or harassment was soon
before her death.
A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. Prosecution has to rule out the
possibility of a natural or accidental death so as to bring
it within the purview of the ’death occurring otherwise than
in normal circumstances’. The expression ’soon before’ is
very relevant where Section 113-B of the Evidence Act and
Section 304-B IPC are pressed into service. Prosecution is
obliged to show that soon before the occurrence there was
cruelty or harassment and only in that case presumption
operates. Evidence in that regard has to be led by
prosecution. ’Soon before’ is a relative term and it would
depend upon circumstances of each case and no strait-jacket
formula can be laid down as to what would constitute a
period of soon before the occurrence. It would be hazardous
to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an
offence of dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The expression
’soon before her death’ used in the substantive Section 304-
B IPC and Section 113-B of the Evidence Act is present with
the idea of proximity test. No definite period has been
indicated and the expression ’soon before’ is not defined.
A reference to expression ’soon before’ used in Section 114.
Illustration (a) of the Evidence Act is relevant. It lays
down that a Court may presume that a man who is in the
possession of goods ’soon after the theft, is either the
thief has received the goods knowing them to be stolen,
unless he can account for his possession. The determination
of the period which can come within the term ’soon before’
is left to be determined by the Courts, depending upon facts
and circumstances of each case. Suffice, however, to
indicate that the expression ’soon before’ would normally
imply that the interval should not be much between the
concerned cruelty or harassment and the death in question.
There must be existence of a proximate and live-link between
the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote
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in time and has become stale enough not to disturb mental
equilibrium of the woman concerned, it would be of no
consequence.
The above position was highlighted in Hira Lal and
Ors. v. State (Govt. of NCT), Delhi (2003(8) SCC 80) and in
Vidhya Devi and Anr. v. State of Haryana (JT 2004 (1) 609).
Their accusations have been clearly established so far
as A-1 is concerned. The evidence of PWs 2, 3, 4 and 6 are
clear, cogent and trustworthy. They have categorically
spoken about the demand as made by A-1 and A-2. Therefore,
the High Court was not justified in holding that no demand
was made. Learned counsel for the accused-respondent
submitted that there is no definite evidence about demand
soon before the death. In view of the fact that the death
occurred within the very few months of the marriage, and
the evidence of PWs 2, 3, 4 and 6 that shortly before the
deceased committed suicide, demand of dowry was made, the
plea is untenable. The accusations clearly stand
established so far as A-1, respondent no.1 is concerned. So
far as accused A-3 is concerned, there is no evidence that
he ever made any demand of dowry. The inference that he had
extended tacit approval for the demand is based on mere
surmises and conjectures without any material to
substantiate it. Therefore, the acquittal so far he is
concerned, does not call for any interference, though for
reasons different from those indicated by the High Court.
In the ultimate result the appeal is allowed so far
respondent no.1 - A-1 is concerned while it is dismissed so
far as respondent no.2 - A-3 is concerned. Custodial
sentence of 7 years would meet the end of justice for
respondent no.1 - A-1. He shall surrender to custody to
serve remainder of sentence. Bail bonds of respondent
no.2 - A-3 be cancelled.
The appeal is allowed to the extent indicated.