Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.App. 399/1997
% Date of reserve: 06.04.2009
Date of decision: 20.04.2009
MUKESH … APPELLANT
Through : Mr. K.B. Andley, adv.
Versus
STATE ...RESPONDENT
Through : Mr. A.K. Gupta, APP for state
CORAM:
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
MOOL CHAND GARG, J.
1. This criminal appeal has been preferred under Section 374
Cr.P.C. against the judgment and order on sentence convicting the
appellant passed by Ld. ASJ (Special Court NDPS Act dated 20.12.97 &
23.10.97 convicting the appellant under Section 498-A/304B IPC and
sentenced him to undergo R.I. for 1 year and to pay fine of Rs. 1000/-
however in default of payment of fine further to undergo R.I. for 6
months under Section 498A IPC and further to undergo R.I. for 7 years
under Section 304B IPC it is further added that both the sentences
shall run concurrently.
2. Briefly stating the facts of this case are that late Smt. Baby
(hereinafter referred to as the deceased) was married to appellant on
Crl.App. 399/1997 Page 1 of 11
14.2.97 according to hindu rites. According to the prosecution it was
on 03.05.97, D.D.No. 7-B was handed over to S.I. Sanwar Mal who
along with constable Janak Raj reached at M-5, Mangolpuri, Delhi on
03.05.97 where they found the dead body of Smt. Baby W/o Shri
Mukesh appellant in the room on the ground floor. S.D.M. Saraswati
Vihar then ordered the preservation of dead body in mortuary. One
saree was lying near the dead body. Since it was an un-natural death
the SDM conducted inquest proceedings and also recorded statement
of the father of the deceased as well as her mother who deposed that
on the basis of the statement made by the parents of the deceased
SDM directed registration of an FIR under Section 498A/304B IPC which
was recorded vide FIR No. 432/07 at PS Mangolpuri against four
accused persons namely Hazari Lal, Kesar Devi, Sunil Kumar & Mukesh
Kumar. After completing the investigation case was sent for trial,
against all of these.
3. After the charges were framed, based upon the testimony of the
witnesses produced by the prosecution the appellant was convicted
both under Section 498A as well as under Section 304B IPC as stated
above while others were acquitted.
4. The short point which has been urged by the appellant assailing
his conviction & order of sentence in this case is that the third
ingredient to fasten the liability on the appellant under Section 304B
IPC was not made out as the evidence led by the prosecution does not
establish that the appellant treated the deceased with cruelty for the
purpose of harassing her for dowry demand soon before her death.
Even though there is no dispute that the death of the deceased has
Crl.App. 399/1997 Page 2 of 11
taken place within 7 years of the marriage and is not a natural death
as it is a case of suicide.
5. Briefly stating the facts of this case are:
i. On 14.02.1997 marriage between the Mukesh and Baby
(deceased) was solemnized according to the Hindu Rites
and Customs.
ii. 03.05.1997 Baby was found dead. Upon receipt of the
information the FIR No. 432 of 1997 was registered under
Section 498-A/304-B/34 IPC. The matter was sent for trial
and four accused namely Hazari Lal, Kesar Devi, Sunil
Kumar and Mukesh Kumar.
iii. The Ld. Session Judge framed the charges under Section
498A/304B against the aforesaid four persons.
iv. That prosecution in support of the case produced PW-2
Mohan Lal, PW-5 Smt. Munni Devi & PW-6 Sarvesh their
statements were recorded apart from the statements of
formal witnesses.
v. The Ld. Session Judge vide judgment and order dated
20.10.1997 convicted Mukesh Kumar for commission of an
offence under Section 498A/304B IPC. However, the Ld.
Session Judge acquitted the other three co-accused
persons namely Hazari Lal, Kesar Devi and Sunil Kumar.
The Ld. Session Court vide order of sentence dated
23.10.1997 awarded the sentence i.e. rigorous
imprisonment of seven years for commission of an offence,
Crl.App. 399/1997 Page 3 of 11
under Section 304B and rigorous imprisonment of one year
and fine of Rs. 1,000/- and in default to under go rigorous
imprisonment of six months for an offence under Section
498A IPC.
6. It is a matter of record that the FIR of this case has been
registered on the basis of statement made by PW-2 Shri Mohan Lal who
the father of the deceased made before the SDM on 03.05.97 itself to
the following effect:
“
On 14.02.1997, I had married my daughter
Baby with Mukesh according to customs. I
gave dowry as per my capacity. My daughter
used to visit my house. She used to tell me
that Mukesh is demanding a Motor Cycle or she
will be done to death. On 08.05.1997 tow
persons came to my house one was Mausa of
Mukesh and another person whom I donot
know and told that my daughter is serious and
we should go. I along with my wife went to the
house of Mukesh. We saw my daughter lying
dead. We came to know that she has been
murdered by Mukesh, his father, mother and
brother who all present court. Mukesh had run
away. The accused persons are still
threatening us. I lodged the report with the
police. The same EX.PW2/A which is signed by
me at point „A‟. I paid Mukesh Rs.20,000/-.
Again demanded Rs.20,000/- with Motor Cycle.
I cannot admit or deny if incident took place on
03.05.1997 or not.
7. PW2, PW5 and PW6 i.e. the father, mother and brother of the
deceased in their deposition have supported the version of the
prosecution about harassing the deceased right from the day of her
marriage till she expired for the demand of dowry.
8. It has come in the evidence of PW2 that after the marriage a
demand of Rs. 20,000/- and motor-cycle was made by Mukesh Kumar
the appellant to the parents of the deceased. PW6 Servesh Kumar in a
Crl.App. 399/1997 Page 4 of 11
statement has stated that 10 days prior to the incident when the
deceased had committed suicide he was informed by her sister on
telephone that Mukesh Kumar had asked for motor-cycle and even
threatened to kill her.
9. Some of the portion of the cross-examination of PW2 and PW6
which the appellant tried to place reliance in support of his case that
the evidence of the prosecution is not trustworthy. It is stated that in
his cross-examination PW2 Mohan Lal has stated as under:
“I do not remember the date month or day when my
daughter told about the demand of motorcycle by
Mukesh. After married when my daughter came for the
first time she told that Mukesh is making demand of
motorcycle and harassing her.” (emphasis supplied)
10. Similarly, PW6 has deposed:
“On 12.4.1997 my sister was married to Mukesh accused
present in Court. At the time of marriage one bed, one
table, chain, one gold ring, one gold chain, one trunk,
one cycle were given. Before marriage Rs. 20,000/- was
paid in cash to Hazari Lal. After marriage she came to
our house after 5-6 days of marriage. Again she came
near Holi for the second time. When she came for the
first time my sister told that Mukesh is demanding a
motorcycle. We assured her that it will be given. My
sister died on 3.4.19997 before her death a telephone
was received 10 days prior to from my sister that
Mukesh is asking for a motorcycle or they threatened to
kill her. (Emphasis)
11. The Learned Sessions Judge has dealt with the evidence which
has come on record in his judgment. Relevant portion of the judgment
is reproduced for the sake of reference:
11. It has been submitted by Ld. defence counsel that
PW2 in his cross examination has made an improvement
when he stated in his cross-examination that his
daughter told him when she came for the first time that
Mukesh has raised a demand of motor cycle and
harassing her. When the witness was confronted with
his statement it was not so recorded. He further stated
that this witness has further admitted that he spent total
amount of Rs. 20,000/- in the marriage. He has further
submitted that this witness in his cross examination has
further stated that he has stated that his daughter has
been killed by the accused persons as they told him and
Crl.App. 399/1997 Page 5 of 11
approached him for compromise. Ld. defence counsel
then referred to the cross examination of the PW5 and
stated that this witness in his cross examination has
admitted that before marriage no demand of motor cycle
was raised and this demand was raised only after
marriage. She further stated that this fact was disclosed
to her when her daughter came on the occasion of Holi
and later on telephone. Ld. defence counsel then
referred to the cross examination of PW6 wherein this
witness is alleged to have stated before S.D.M. that an
amount of Rs. 20,000/- was paid in cash at the time of
sagai. This statement is an improvement. Laying stress
on this Ld. defence counsel has submitted that there is
inconsistency in the statement of the witnesses and
there are some discrepancies in the statement of the
witnesses for which benefit should go to the accused.
12. Ld. defence counsel further submitted that
statement of Sarvesh has been recorded by S.D.M. on
6.5.97 and of Munni Devi on 8.5.97 and that too in the
presence of I.O. The incident is alleged to have taken
place on 3.5.97 and the delay in recording the statement
before S.D.M. had not been explained.
13. Another submission which has been made by Ld.
Counsel for the accused persons is that as per the post-
mortem report the death took place due to hanging and
it is a case of suicide. No demand of dowry was made
nor the deceased was harassed for the same and as
such the prosecution has not been able to prove its case
beyond any shadow of reasonable doubt.
14. On the other hand it has been submitted by Ld.
APP that the discrepancies pointed out by Ld. Defence
counsel are not material because such discrepancies are
bound to occur with lapse of time. With regard to the
late recording of SDM Ld. APP has submitted that the
witnesses may not be in good frame of mind to make
statement as Baby was dead. For this also the accused
persons cannot be given any benefit. He has submitted
that all the witnesses examined by the prosecution have
specifically stated that a demand of motor cycle was
raised by Mukesh and for which she was harassed.
15. In order to prove the guilt of the accused persons
under Section 498A the prosecution has to prove that a
woman was subjected to cruelty of harassment by the
husband or relative of a husband. There is the
testimony of PW2, PW5 and PW6 on the file which clearly
point out that Mukesh husband of deceased Baby raised
a demand of motor cycle and that she was harassed.
There are these specific allegations against accused
Mukesh of cruelty and harassment and nothing has been
said by these witnesses with regard to the other three
accused persons.
16. From the above discussion, I hold that
prosecution has been successful in proving a case under
Section 498A against the husband of deceased Baby and
has not been able to prove its case against the other
three accused persons.
12. From the aforesaid, it is apparent that even the third ingredient
Crl.App. 399/1997 Page 6 of 11
was found to be available by the Trial Court at least against the
appellant.
13. At this juncture it may also be relevant to take note of the
judgment of Apex Court in the case of Yashoda V. State of M.P. (2004)
3 SCC 98 at page 101 on this point where the issue as to what is the
meaning of “soon before death” has been discussed
8. The evidence of these witnesses also proves that
about 15 days before the occurrence, Kalicharan, the
husband of the deceased, had himself come to fetch the
deceased. On that occasion also he had reiterated his
demand for the gold ornaments and to him also an
assurance was given by the father of the deceased,
Shankarlal (PW 5), that he would arrange for the said
articles within a month. On the basis of the evidence of
PWs 3, 4, 5 and 7 we are satisfied that the prosecution
has successfully proved its case that there was a
persistent demand for gold ornaments ever since the
marriage of the deceased with Kalicharan, which
demand was reiterated on many occasions and the
demand last made was just 15 days before the
occurrence.
16. The words “soon before” found in Section 304-B IPC
have come up for consideration before this Court in a
large number of cases. This Court has consistently held
that it is neither possible nor desirable to lay down any
straitjacket formula to determine what would constitute
“soon before” in the context of Section 304-B IPC. It all
depends on the facts and circumstances of the case.
Learned counsel for the appellant relied upon a decision
of this Court rendered by two learned Judges reported in
Sham Lal v. State of Haryana, (1997) 9 SCC 759 and
submitted that as in that case, so in the present case,
there was no evidence to suggest that after the
deceased went to her matrimonial home, she had been
subjected to cruelty and harassment before her death.
The facts of Sham Lal case (supra) are clearly
distinguishable and they have been so distinguished in
the case of Kans Raj v. State of Punjab, (2000) 5 SCC
207 by a Bench of three learned Judges of this Court.
This Court observed:
“ 15 . It is further contended on behalf of
the respondents that the statements of
the deceased referred to the instances
could not be termed to be cruelty or
harassment by the husband soon before
her death. „Soon before‟ is a relative term
Crl.App. 399/1997 Page 7 of 11
which is required to be considered under
specific circumstances of each case and
no straitjacket formula can be laid down
by fixing any time-limit. This expression is
pregnant with the idea of proximity test.
The term „soon before‟ is not synonymous
with the term „immediately before‟ and is
opposite of the expression „soon after‟ as
used and understood in Section 114,
Illustration ( a ) of the Evidence Act. These
words would imply that the interval should
not be too long between the time of
making the statement and the death. It
contemplates the reasonable time which,
as earlier noticed, has to be understood
and determined under the peculiar
circumstances of each case. In relation to
dowry deaths, the circumstances showing
the existence of cruelty or harassment to
the deceased are not restricted to a
particular instance 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 for dowry is
shown to have persisted, it shall be
deemed to be ‘soon before death’ if any
other intervening circumstance showing
the non-existence of such treatment is not
brought on record, before such alleged
treatment and the date of death . It does
not, however, mean that such time can be
stretched to any period. Proximate and
live link between the effect of cruelty
based on dowry demand and the
consequential death is required to be
proved by the prosecution. The demand of
dowry, cruelty or harassment based upon
such demand and the date of death
should not be too remote in time which,
under the circumstances, be treated as
having become stale enough.”
18. In the instant case as well there is nothing to show
that the demand had been given up or had been
satisfied by the parents of the deceased. On the contrary
there is evidence to prove that even 15 days before the
occurrence such a demand was reiterated and while
leaving for her matrimonial home the deceased had
wept and told her uncle that if the demand was not met,
they will not let her live. The facts of this case are similar
to the facts in the case of Kans Raj (supra) . In our view
the same principle must apply. There is clear evidence
on record that the demand for gold ornaments persisted
and so did harassment and cruelty meted out to the
Crl.App. 399/1997 Page 8 of 11
deceased. Every time she came to her parents she wept
and narrated her miserable plight. The last demand was
made only fifteen days before her death. In these
circumstances it cannot be said that there is no evidence
on record to support the finding that soon before her
death she was subjected to cruelty and harassment by
the appellants and her husband in connection with
demand of dowry.
14. Apex Court in the case of Arun Garg Vs. State Punjab (2004) 8
SCC 251 has also discussed the meaning of “soon before death” has
been discussed.
17. The ingredients necessary for the application of
Section 304-B IPC are:
( i ) that the death of a woman is caused by any burns or
bodily injury or occurs otherwise than under normal
circumstances;
(ii ) within seven years of her marriage;
( iii ) it must be shown that before the death she was
subject to cruelty or harassment by her husband or any
relative of the husband for or in connection with the
demand of dowry.
.
21. The courts below have carefully gone through the
facts of the case and the evidence on record and have
found that the appellant is liable for the offence under
Section 304-B IPC. The courts below, after appreciation
of the facts and evidence recorded have reached the
conclusion that Seema Garg died an unnatural death at
the house of her in-laws within a period of seven years of
her marriage with the appellant due to intake of
poisonous substanc
26. There is no substance in the argument of the
learned counsel appearing for the appellant that the
interested evidence of the parents of the deceased has
not been supported by independent evidence or witness
of the locality while the stand of the defence has been
that the deceased Seema was never harassed or
tortured by the appellant or by any of his family
members for demand of dowry. Likewise, there is no
substance in the submission of the learned counsel
appearing for the appellant that there is no demand of
dowry by the appellant or by any of his family members
soon before the death of Seema. The evidence
discussed, as in paragraphs supra, would clearly go to
show that this submission has no force.
27. Section 304-B was inserted by the Dowry Prohibition
(Amendment) Act, 1986 with a view to combating the
Crl.App. 399/1997 Page 9 of 11
increasing menace of dowry death. By the same
Amendment Act, Section 113-B has been added in the
Evidence Act, 1872 for raising a presumption. It reads
thus:
“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 purpose of this section, „dowry
death‟ shall have the same meaning as in Section 304-B
of the Indian Penal Code.”
28. Once the three essentials under Section 304-B as
referred to in paragraph 17 are satisfied, the
presumption under Section 113-B would follow. This rule
of evidence is added in the statute by amendment to
obviate the difficulty of the prosecution to prove as to
who caused the death of the victim. Of course, this is a
rebuttable presumption and the accused by satisfactory
evidence can rebut the presumption. In the instant case,
the appellant could not rebut the presumption, and the
prosecution, even without the aid of this presumption
under Section 113-B proved that the appellant was
responsible for the death of the deceased Seema.
Hence, the conviction of the appellant for the offence
under Section 304-B IPC is only to be confirmed.
29. Our attention was also drawn to Section 498-A. In
our view, Sections 304-B and 498-A are not mutually
exclusive. They deal with different and distinct offences.
In both the sections, “cruelty” is a common element.
Under Section 498-A, however, cruelty by itself amounts
to an offence and is punishable. Under Section 304-B, it
is the dowry death that is punishable and such death
must have occurred within seven years of the marriage.
No such period is mentioned in Section 498-A. Moreover,
a person charged and acquitted under Section 304-B can
be convicted under Section 498-A without a specific
charge being there, if such a case is made out.
15. In view of the aforesaid taking into consideration the statements
made by PW2, PW5 and PW6 it is clearly established that the deceased
was harassed for the demand of dowry and the death has occurred
within three months of the marriage which is “soon before the death”
in the light of the aforesaid judgments. Her death being an unnatural
death which occurred within 7 years of her marriage and in fact within
Crl.App. 399/1997 Page 10 of 11
3 months of the marriage makes out a case under Section 304B
against the appellant. Thus, I do not find any infirmity in so far as the
judgment of conviction passed by the Addl. Sessions Judge in this case.
As far as sentence awarded to the appellant is concerned, taking into
consideration the sentence awarded to the appellant I do not find that
the sentence was excessive or requires any interference by this Court.
16. Accordingly, the said part of the order is upheld. It is ordered
that the appellant will surrender before the Trial Court immediately.
His bail bond would stand forfeited. In case the appellant fails to
surrender within 1 week from today Sessions Judge would take steps
for arresting the appellant and remanding him to judicial custody so
that he can undergo the remaining sentence awarded to him.
However, he would be entitled for adjustment of the period of this
sentence already undergone by him in accordance with Section 428 of
Cr.P.C. TCR be sent back along with the copy of the order.
MOOL CHAND GARG, J.
April 20, 2009
ag
Crl.App. 399/1997 Page 11 of 11
+ Crl.App. 399/1997
% Date of reserve: 06.04.2009
Date of decision: 20.04.2009
MUKESH … APPELLANT
Through : Mr. K.B. Andley, adv.
Versus
STATE ...RESPONDENT
Through : Mr. A.K. Gupta, APP for state
CORAM:
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
MOOL CHAND GARG, J.
1. This criminal appeal has been preferred under Section 374
Cr.P.C. against the judgment and order on sentence convicting the
appellant passed by Ld. ASJ (Special Court NDPS Act dated 20.12.97 &
23.10.97 convicting the appellant under Section 498-A/304B IPC and
sentenced him to undergo R.I. for 1 year and to pay fine of Rs. 1000/-
however in default of payment of fine further to undergo R.I. for 6
months under Section 498A IPC and further to undergo R.I. for 7 years
under Section 304B IPC it is further added that both the sentences
shall run concurrently.
2. Briefly stating the facts of this case are that late Smt. Baby
(hereinafter referred to as the deceased) was married to appellant on
Crl.App. 399/1997 Page 1 of 11
14.2.97 according to hindu rites. According to the prosecution it was
on 03.05.97, D.D.No. 7-B was handed over to S.I. Sanwar Mal who
along with constable Janak Raj reached at M-5, Mangolpuri, Delhi on
03.05.97 where they found the dead body of Smt. Baby W/o Shri
Mukesh appellant in the room on the ground floor. S.D.M. Saraswati
Vihar then ordered the preservation of dead body in mortuary. One
saree was lying near the dead body. Since it was an un-natural death
the SDM conducted inquest proceedings and also recorded statement
of the father of the deceased as well as her mother who deposed that
on the basis of the statement made by the parents of the deceased
SDM directed registration of an FIR under Section 498A/304B IPC which
was recorded vide FIR No. 432/07 at PS Mangolpuri against four
accused persons namely Hazari Lal, Kesar Devi, Sunil Kumar & Mukesh
Kumar. After completing the investigation case was sent for trial,
against all of these.
3. After the charges were framed, based upon the testimony of the
witnesses produced by the prosecution the appellant was convicted
both under Section 498A as well as under Section 304B IPC as stated
above while others were acquitted.
4. The short point which has been urged by the appellant assailing
his conviction & order of sentence in this case is that the third
ingredient to fasten the liability on the appellant under Section 304B
IPC was not made out as the evidence led by the prosecution does not
establish that the appellant treated the deceased with cruelty for the
purpose of harassing her for dowry demand soon before her death.
Even though there is no dispute that the death of the deceased has
Crl.App. 399/1997 Page 2 of 11
taken place within 7 years of the marriage and is not a natural death
as it is a case of suicide.
5. Briefly stating the facts of this case are:
i. On 14.02.1997 marriage between the Mukesh and Baby
(deceased) was solemnized according to the Hindu Rites
and Customs.
ii. 03.05.1997 Baby was found dead. Upon receipt of the
information the FIR No. 432 of 1997 was registered under
Section 498-A/304-B/34 IPC. The matter was sent for trial
and four accused namely Hazari Lal, Kesar Devi, Sunil
Kumar and Mukesh Kumar.
iii. The Ld. Session Judge framed the charges under Section
498A/304B against the aforesaid four persons.
iv. That prosecution in support of the case produced PW-2
Mohan Lal, PW-5 Smt. Munni Devi & PW-6 Sarvesh their
statements were recorded apart from the statements of
formal witnesses.
v. The Ld. Session Judge vide judgment and order dated
20.10.1997 convicted Mukesh Kumar for commission of an
offence under Section 498A/304B IPC. However, the Ld.
Session Judge acquitted the other three co-accused
persons namely Hazari Lal, Kesar Devi and Sunil Kumar.
The Ld. Session Court vide order of sentence dated
23.10.1997 awarded the sentence i.e. rigorous
imprisonment of seven years for commission of an offence,
Crl.App. 399/1997 Page 3 of 11
under Section 304B and rigorous imprisonment of one year
and fine of Rs. 1,000/- and in default to under go rigorous
imprisonment of six months for an offence under Section
498A IPC.
6. It is a matter of record that the FIR of this case has been
registered on the basis of statement made by PW-2 Shri Mohan Lal who
the father of the deceased made before the SDM on 03.05.97 itself to
the following effect:
“
On 14.02.1997, I had married my daughter
Baby with Mukesh according to customs. I
gave dowry as per my capacity. My daughter
used to visit my house. She used to tell me
that Mukesh is demanding a Motor Cycle or she
will be done to death. On 08.05.1997 tow
persons came to my house one was Mausa of
Mukesh and another person whom I donot
know and told that my daughter is serious and
we should go. I along with my wife went to the
house of Mukesh. We saw my daughter lying
dead. We came to know that she has been
murdered by Mukesh, his father, mother and
brother who all present court. Mukesh had run
away. The accused persons are still
threatening us. I lodged the report with the
police. The same EX.PW2/A which is signed by
me at point „A‟. I paid Mukesh Rs.20,000/-.
Again demanded Rs.20,000/- with Motor Cycle.
I cannot admit or deny if incident took place on
03.05.1997 or not.
7. PW2, PW5 and PW6 i.e. the father, mother and brother of the
deceased in their deposition have supported the version of the
prosecution about harassing the deceased right from the day of her
marriage till she expired for the demand of dowry.
8. It has come in the evidence of PW2 that after the marriage a
demand of Rs. 20,000/- and motor-cycle was made by Mukesh Kumar
the appellant to the parents of the deceased. PW6 Servesh Kumar in a
Crl.App. 399/1997 Page 4 of 11
statement has stated that 10 days prior to the incident when the
deceased had committed suicide he was informed by her sister on
telephone that Mukesh Kumar had asked for motor-cycle and even
threatened to kill her.
9. Some of the portion of the cross-examination of PW2 and PW6
which the appellant tried to place reliance in support of his case that
the evidence of the prosecution is not trustworthy. It is stated that in
his cross-examination PW2 Mohan Lal has stated as under:
“I do not remember the date month or day when my
daughter told about the demand of motorcycle by
Mukesh. After married when my daughter came for the
first time she told that Mukesh is making demand of
motorcycle and harassing her.” (emphasis supplied)
10. Similarly, PW6 has deposed:
“On 12.4.1997 my sister was married to Mukesh accused
present in Court. At the time of marriage one bed, one
table, chain, one gold ring, one gold chain, one trunk,
one cycle were given. Before marriage Rs. 20,000/- was
paid in cash to Hazari Lal. After marriage she came to
our house after 5-6 days of marriage. Again she came
near Holi for the second time. When she came for the
first time my sister told that Mukesh is demanding a
motorcycle. We assured her that it will be given. My
sister died on 3.4.19997 before her death a telephone
was received 10 days prior to from my sister that
Mukesh is asking for a motorcycle or they threatened to
kill her. (Emphasis)
11. The Learned Sessions Judge has dealt with the evidence which
has come on record in his judgment. Relevant portion of the judgment
is reproduced for the sake of reference:
11. It has been submitted by Ld. defence counsel that
PW2 in his cross examination has made an improvement
when he stated in his cross-examination that his
daughter told him when she came for the first time that
Mukesh has raised a demand of motor cycle and
harassing her. When the witness was confronted with
his statement it was not so recorded. He further stated
that this witness has further admitted that he spent total
amount of Rs. 20,000/- in the marriage. He has further
submitted that this witness in his cross examination has
further stated that he has stated that his daughter has
been killed by the accused persons as they told him and
Crl.App. 399/1997 Page 5 of 11
approached him for compromise. Ld. defence counsel
then referred to the cross examination of the PW5 and
stated that this witness in his cross examination has
admitted that before marriage no demand of motor cycle
was raised and this demand was raised only after
marriage. She further stated that this fact was disclosed
to her when her daughter came on the occasion of Holi
and later on telephone. Ld. defence counsel then
referred to the cross examination of PW6 wherein this
witness is alleged to have stated before S.D.M. that an
amount of Rs. 20,000/- was paid in cash at the time of
sagai. This statement is an improvement. Laying stress
on this Ld. defence counsel has submitted that there is
inconsistency in the statement of the witnesses and
there are some discrepancies in the statement of the
witnesses for which benefit should go to the accused.
12. Ld. defence counsel further submitted that
statement of Sarvesh has been recorded by S.D.M. on
6.5.97 and of Munni Devi on 8.5.97 and that too in the
presence of I.O. The incident is alleged to have taken
place on 3.5.97 and the delay in recording the statement
before S.D.M. had not been explained.
13. Another submission which has been made by Ld.
Counsel for the accused persons is that as per the post-
mortem report the death took place due to hanging and
it is a case of suicide. No demand of dowry was made
nor the deceased was harassed for the same and as
such the prosecution has not been able to prove its case
beyond any shadow of reasonable doubt.
14. On the other hand it has been submitted by Ld.
APP that the discrepancies pointed out by Ld. Defence
counsel are not material because such discrepancies are
bound to occur with lapse of time. With regard to the
late recording of SDM Ld. APP has submitted that the
witnesses may not be in good frame of mind to make
statement as Baby was dead. For this also the accused
persons cannot be given any benefit. He has submitted
that all the witnesses examined by the prosecution have
specifically stated that a demand of motor cycle was
raised by Mukesh and for which she was harassed.
15. In order to prove the guilt of the accused persons
under Section 498A the prosecution has to prove that a
woman was subjected to cruelty of harassment by the
husband or relative of a husband. There is the
testimony of PW2, PW5 and PW6 on the file which clearly
point out that Mukesh husband of deceased Baby raised
a demand of motor cycle and that she was harassed.
There are these specific allegations against accused
Mukesh of cruelty and harassment and nothing has been
said by these witnesses with regard to the other three
accused persons.
16. From the above discussion, I hold that
prosecution has been successful in proving a case under
Section 498A against the husband of deceased Baby and
has not been able to prove its case against the other
three accused persons.
12. From the aforesaid, it is apparent that even the third ingredient
Crl.App. 399/1997 Page 6 of 11
was found to be available by the Trial Court at least against the
appellant.
13. At this juncture it may also be relevant to take note of the
judgment of Apex Court in the case of Yashoda V. State of M.P. (2004)
3 SCC 98 at page 101 on this point where the issue as to what is the
meaning of “soon before death” has been discussed
8. The evidence of these witnesses also proves that
about 15 days before the occurrence, Kalicharan, the
husband of the deceased, had himself come to fetch the
deceased. On that occasion also he had reiterated his
demand for the gold ornaments and to him also an
assurance was given by the father of the deceased,
Shankarlal (PW 5), that he would arrange for the said
articles within a month. On the basis of the evidence of
PWs 3, 4, 5 and 7 we are satisfied that the prosecution
has successfully proved its case that there was a
persistent demand for gold ornaments ever since the
marriage of the deceased with Kalicharan, which
demand was reiterated on many occasions and the
demand last made was just 15 days before the
occurrence.
16. The words “soon before” found in Section 304-B IPC
have come up for consideration before this Court in a
large number of cases. This Court has consistently held
that it is neither possible nor desirable to lay down any
straitjacket formula to determine what would constitute
“soon before” in the context of Section 304-B IPC. It all
depends on the facts and circumstances of the case.
Learned counsel for the appellant relied upon a decision
of this Court rendered by two learned Judges reported in
Sham Lal v. State of Haryana, (1997) 9 SCC 759 and
submitted that as in that case, so in the present case,
there was no evidence to suggest that after the
deceased went to her matrimonial home, she had been
subjected to cruelty and harassment before her death.
The facts of Sham Lal case (supra) are clearly
distinguishable and they have been so distinguished in
the case of Kans Raj v. State of Punjab, (2000) 5 SCC
207 by a Bench of three learned Judges of this Court.
This Court observed:
“ 15 . It is further contended on behalf of
the respondents that the statements of
the deceased referred to the instances
could not be termed to be cruelty or
harassment by the husband soon before
her death. „Soon before‟ is a relative term
Crl.App. 399/1997 Page 7 of 11
which is required to be considered under
specific circumstances of each case and
no straitjacket formula can be laid down
by fixing any time-limit. This expression is
pregnant with the idea of proximity test.
The term „soon before‟ is not synonymous
with the term „immediately before‟ and is
opposite of the expression „soon after‟ as
used and understood in Section 114,
Illustration ( a ) of the Evidence Act. These
words would imply that the interval should
not be too long between the time of
making the statement and the death. It
contemplates the reasonable time which,
as earlier noticed, has to be understood
and determined under the peculiar
circumstances of each case. In relation to
dowry deaths, the circumstances showing
the existence of cruelty or harassment to
the deceased are not restricted to a
particular instance 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 for dowry is
shown to have persisted, it shall be
deemed to be ‘soon before death’ if any
other intervening circumstance showing
the non-existence of such treatment is not
brought on record, before such alleged
treatment and the date of death . It does
not, however, mean that such time can be
stretched to any period. Proximate and
live link between the effect of cruelty
based on dowry demand and the
consequential death is required to be
proved by the prosecution. The demand of
dowry, cruelty or harassment based upon
such demand and the date of death
should not be too remote in time which,
under the circumstances, be treated as
having become stale enough.”
18. In the instant case as well there is nothing to show
that the demand had been given up or had been
satisfied by the parents of the deceased. On the contrary
there is evidence to prove that even 15 days before the
occurrence such a demand was reiterated and while
leaving for her matrimonial home the deceased had
wept and told her uncle that if the demand was not met,
they will not let her live. The facts of this case are similar
to the facts in the case of Kans Raj (supra) . In our view
the same principle must apply. There is clear evidence
on record that the demand for gold ornaments persisted
and so did harassment and cruelty meted out to the
Crl.App. 399/1997 Page 8 of 11
deceased. Every time she came to her parents she wept
and narrated her miserable plight. The last demand was
made only fifteen days before her death. In these
circumstances it cannot be said that there is no evidence
on record to support the finding that soon before her
death she was subjected to cruelty and harassment by
the appellants and her husband in connection with
demand of dowry.
14. Apex Court in the case of Arun Garg Vs. State Punjab (2004) 8
SCC 251 has also discussed the meaning of “soon before death” has
been discussed.
17. The ingredients necessary for the application of
Section 304-B IPC are:
( i ) that the death of a woman is caused by any burns or
bodily injury or occurs otherwise than under normal
circumstances;
(ii ) within seven years of her marriage;
( iii ) it must be shown that before the death she was
subject to cruelty or harassment by her husband or any
relative of the husband for or in connection with the
demand of dowry.
.
21. The courts below have carefully gone through the
facts of the case and the evidence on record and have
found that the appellant is liable for the offence under
Section 304-B IPC. The courts below, after appreciation
of the facts and evidence recorded have reached the
conclusion that Seema Garg died an unnatural death at
the house of her in-laws within a period of seven years of
her marriage with the appellant due to intake of
poisonous substanc
26. There is no substance in the argument of the
learned counsel appearing for the appellant that the
interested evidence of the parents of the deceased has
not been supported by independent evidence or witness
of the locality while the stand of the defence has been
that the deceased Seema was never harassed or
tortured by the appellant or by any of his family
members for demand of dowry. Likewise, there is no
substance in the submission of the learned counsel
appearing for the appellant that there is no demand of
dowry by the appellant or by any of his family members
soon before the death of Seema. The evidence
discussed, as in paragraphs supra, would clearly go to
show that this submission has no force.
27. Section 304-B was inserted by the Dowry Prohibition
(Amendment) Act, 1986 with a view to combating the
Crl.App. 399/1997 Page 9 of 11
increasing menace of dowry death. By the same
Amendment Act, Section 113-B has been added in the
Evidence Act, 1872 for raising a presumption. It reads
thus:
“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 purpose of this section, „dowry
death‟ shall have the same meaning as in Section 304-B
of the Indian Penal Code.”
28. Once the three essentials under Section 304-B as
referred to in paragraph 17 are satisfied, the
presumption under Section 113-B would follow. This rule
of evidence is added in the statute by amendment to
obviate the difficulty of the prosecution to prove as to
who caused the death of the victim. Of course, this is a
rebuttable presumption and the accused by satisfactory
evidence can rebut the presumption. In the instant case,
the appellant could not rebut the presumption, and the
prosecution, even without the aid of this presumption
under Section 113-B proved that the appellant was
responsible for the death of the deceased Seema.
Hence, the conviction of the appellant for the offence
under Section 304-B IPC is only to be confirmed.
29. Our attention was also drawn to Section 498-A. In
our view, Sections 304-B and 498-A are not mutually
exclusive. They deal with different and distinct offences.
In both the sections, “cruelty” is a common element.
Under Section 498-A, however, cruelty by itself amounts
to an offence and is punishable. Under Section 304-B, it
is the dowry death that is punishable and such death
must have occurred within seven years of the marriage.
No such period is mentioned in Section 498-A. Moreover,
a person charged and acquitted under Section 304-B can
be convicted under Section 498-A without a specific
charge being there, if such a case is made out.
15. In view of the aforesaid taking into consideration the statements
made by PW2, PW5 and PW6 it is clearly established that the deceased
was harassed for the demand of dowry and the death has occurred
within three months of the marriage which is “soon before the death”
in the light of the aforesaid judgments. Her death being an unnatural
death which occurred within 7 years of her marriage and in fact within
Crl.App. 399/1997 Page 10 of 11
3 months of the marriage makes out a case under Section 304B
against the appellant. Thus, I do not find any infirmity in so far as the
judgment of conviction passed by the Addl. Sessions Judge in this case.
As far as sentence awarded to the appellant is concerned, taking into
consideration the sentence awarded to the appellant I do not find that
the sentence was excessive or requires any interference by this Court.
16. Accordingly, the said part of the order is upheld. It is ordered
that the appellant will surrender before the Trial Court immediately.
His bail bond would stand forfeited. In case the appellant fails to
surrender within 1 week from today Sessions Judge would take steps
for arresting the appellant and remanding him to judicial custody so
that he can undergo the remaining sentence awarded to him.
However, he would be entitled for adjustment of the period of this
sentence already undergone by him in accordance with Section 428 of
Cr.P.C. TCR be sent back along with the copy of the order.
MOOL CHAND GARG, J.
April 20, 2009
ag
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