Full Judgment Text
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CASE NO.:
Appeal (crl.) 205 of 2005
PETITIONER:
Kamesh Panjiyar @ Kamlesh Panjiyar
RESPONDENT:
State of Bihar
DATE OF JUDGMENT: 01/02/2005
BENCH:
Arijit Pasayat & S.H. Kapadia
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Leave granted.
Marriages are made in heaven, is an adage. A bride leaves the parental home
for the matrimonial home, leaving behind sweet memories therewith a hope
that she will see a new world full of love in her groom’s house. She leaves
behind not only her memories, but also her surname, gotra and maidenhood.
She expects not only to be a daughter-in-law, but a daughter in fact. Alas!
the alarming rise in the number of cases involving harassment to the newly
wed girls for dowry shatters the dreams. In-laws are characterized to be
outlaws for perpetrating terrorism which destroys the matrimonial home. The
terrorist is dowry, and it is spreading tentacles in every possible
direction.
Appellant calls in question legality of the judgment rendered by a learned
Single Judge of the Patna High Court upholding his conviction for offences
punishable under Section 304-B of the Indian Penal Code, 1860 (in short the
‘IPC’), while reducing sentences to seven years rigorous imprisonment from
ten years imprisonment as was awarded by learned Sessions Judge, Sitamarhi.
Prosecution version as unfolded during trial is as follows :
Jaikali Devi (hereinafter referred to as the deceased) was sister of the
informant, Sudhir Kumar Mahto (PW-6). She was married to appellant in 1988.
Duragaman was subsequently performed in the month of August, 1989. A sum of
Rs. 40,000 was demanded in dowry at the time of marriage and the same was
paid. Subsequently, demand for a she-buffalo was made by the appellant at
the time of Duragaman which could not be fulfilled. Informant Sudhir Kumar
Mahto (PW-6) went several times to the house of her sister and made request
for Bidagari of her sister, but the same was not allowed, and on the
contrary demand of she-buffalo was pressed. The deceased complained of ill-
treatment and torture at the hands of the appellant and other members of
his family. The informant was also abused. On 28.11.1989 at about 7.00
a.m., the informant heard some rumour in the village that her sister-the
deceased was murdered by the appellant and his family members, and they
were contemplating to dispose of the dead body. Thereafter, the informant
along with his father Bachu Mahto (PW-3), brother Anup Mahto (PW-5) and
uncle Bhuneshwar Mahto (PW-7) went to the village of the appellant and
found that the dead body of her sister was lying in the verandah of the
appellant’s house and some blood was oozing from her mouth and there were
mark of violence on her neck and it appeared that his sister was murdered
by strangulation in the previous night. The officer In-charge of Kanhauli
Police Station reached in the village Araria on hearing rumours about
murder of a lady and he recorded the Fardbeyan (Ext.1) of the informant. He
sent Fardbeyan to the Officer In-charge of Kanhauli Police Station for
instituting a case. He made inquest on the dead body of the deceased and
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prepared inquest report and sent the dead body to Sitamarhi Sadar Hospital
for post mortem examination and a formal FIR was drawn up. The police after
completion of investigation submitted charge sheet.
Appellant pleaded innocence. In order to further its version prosecution
examined 9 witnesses. As noted above, Sudhir Kumar Mahto (PW-6) was the
informant. According to his evidence shortly before the occurrence, he had
talked with his sister i.e. the deceased, who told him about the tortures
meted out to her for not bringing the dowry articles. To similar effect is
the evidence of Dayanand Mahto (PW-1) who claimed to have accompanied PW-6
and heard deceased telling PW-6 about the torture. Bachu Mahto (PW-3) the
father of the deceased also stated about the demand. PW-8 is the doctor who
conducted the post-mortem. Three witnesses were examined by the accused to
substantiate his plea that the deceased had rheumatic disease and she died
because of this. The trial Court considered the evidence on record and came
to hold that the presumption in terms of Section 113(B) of the Indian
Evidence Act, 1872 (in short ‘the Evidence Act’) was to be drawn and since
the deceased did not die a natural death as claimed, the accused was guilty
of offence in terms of Section 304-B IPC. It was noticed that there was no
evidence to show that the deceased suffered from any rheumatic disease. The
evidence of DWs was found to be unreliable. Accordingly, conviction in
terms of Section 304-B was recorded and ten years sentence was imposed.
Questioning the conviction and the sentence as awarded by the learned trial
Judge, the accused filed an appeal before the High Court. As noted above,
the High Court upheld the conviction but reduced the sentence.
In support of the appeal, learned counsel for the appellant submitted that
the doctor (PW-8) had categorically stated that the causes of death was not
ascertainable. The trial Court and the High Court were not justified in
applying Section 304-B IPC to the facts of the case. There was no livelink
established between the alleged demand of dowry and the purported unnatural
death. That being so, the conviction as recorded is not tenable.
In response, learned counsel for the State submitted that the Courts below
have analysed the factual position in detail and found the accused-
appellant guilty. That being so, no fault can be found with the orders of
the Courts below.
Section 304-B IPC deals with dowry death which 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 some
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-IPC, the essential
ingredients are as follows :
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(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 be
the woman soon before her death.
Section 113B of the Evidence Act is also relevant for the case at hand.
Both Section 304-B IPC and Section 113B of the Evidence Act were inserted
by the Dowry prohibition (Amendment) Act 43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113b reads as follows :
"113B : Presumption as to dowry death - when the question is whether a
person has committed the dowry death of a woman and it is shown that soon
before her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section ‘dowry death’ shall have the
same meaning as in Section 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 Indian 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 113B in the Evidence Act has been inserted. As per the
definition of ‘dowry death’ in Section 304B IPC and the wording in the
presumptive Section 113B 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 113B is a presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the Court to raise 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 304B 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 113B of the Evidence Act and Section 304-B
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
113B of the Evidence Act and Section 304B IPC are pressed into service.
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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 113B of the Evidence Act. The expression ‘soon before her
death’ used in the substantive Section 304B IPC and Section 113B 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 many 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 effects of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote in
time and has become stale enough not to disturb mental equilibrium of the
woman concerned, it would be of no consequence.
Consequences of cruelty which are likely to drive a woman to commit suicide
or to cause grave injury or danger to life, limb or health, whether mental
or physical of the woman is required to be established in order to bring
home the application of Section 498A IPC. Cruelty has been defined in the
Explanation for the purpose of Section 498A. Substantive Section 498A IPC
and presumptive Section 113A of the Evidence Act have been inserted in the
respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to
be noted that Sections 304B and 498A, IPC cannot be held to be mutually
inclusive. These provisions deal with two distinct offences. It is true
that cruelty is a common essential to both the Sections and that has to be
proved. The Explanation to Section 498A gives the meaning of ‘cruelty’. In
Section 304B thereis no such explanation about the meaning of ‘cruelty’.
But having regard to common background to these offences it has to be taken
that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in
the Explanation to Section 498A under which ‘cruelty’ by itself amounts to
an offence. Under Section 304B it is ‘dowry death’ that is punishable and
such death should have occurred within seven years of marriage. No such
period is mentioned in Section 498A. If the case is established, there can
be a conviction under both the sections. (See Akula Ravinder and Ors. v.
The State of Andhra Pradesh, AIR (1991) SC 1142. Period of operation of
Section 113B of the Evidence Act is Seven Years, Presumption arises when a
woman committed suicide within a period of seven years from the date of
marriage.
Section 2 of the Dowry Prohibition Act, 1961 (in short ‘Dowry Act’) defines
"dowry" as under :-
Section 2. Definition of ‘dowry’ - In this Act, ‘dowry’ means any property
or valuable security given or agreed to be given either directly or
indirectly -
(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
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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)."
The word "dowry" in Section 304-B IPC has to be understood as it is defined
in Section 2 of the Dowry Act. Thus, there are three occasions related to
dowry. One is before the marriage, second is at the time of marriage and
the third "at any time" after the marriage. The third occasion may appear
to be unending period. But the crucial words are "in connection with the
marriage of the said parties". Other payments which are customary payments
e.g. given at the time of birth of a child or other ceremonies as are
prevalent in different societies are not covered by the expression "dowry".
(See Satvir Singh v. State of Punjab, [2001] 8 SCC 633 As was observed in
said case "suicidal death" of a married woman within seven years of her
marriage is covered by the expression "death of a woman is caused ......or
occurs otherwise than under normal circumstances" as expressed in Section
304-B IPC.
In the instant case, great stress has been laid on the opinion of the
doctor that possible cause of death was not ascertainable. As noted by the
trial Court and the High Court, black stained rough skin on both sides of
neck was found. It has also been noticed by the doctor who conducted the
post-mortem examination that blood stained fluid was trickling from the
side of mouth and brain matters were found congested. The doctor
unfortunately did not consider the effect of the marks on the neck and
trickling of blood stained fluid from the mouth. The I.O. (PW-9) had seized
a blood stained pillow. There was no evidence that the death was due to
normal reasons. Evidence of PWs 1, 3 and 6 amply established demand of
dowry and ill treatment of the deceased shortly before the date of
occurrence. The trail Court and the High Court were justified in drawing
the conclusion about guilt of the accused. Though attempt was made to show
that had the accused been guilty he along with family members would not
have tried to get treatment for the deceased. The reason for this is not
far too seek. The accused person and others were typing to create a smoke
screen. If the death was normal as claimed by the accused, nothing was
brought on record to explain injuries on the neck of the deceased. The
evidence on record clearly establishes the commission of offence by the
accused. Therefore, the conviction and the modified sentence as imposed by
the High Court do not suffer from any infirmity to warrant interference.
The appeal is dismissed.