1
Dr.GRR, J
CRLA_223_2013
THE HON'BLE DR. JUSTICE G. RADHA RANI
CRIMINAL APPEAL NO.223 OF 2013
JUDGMENT:
1. This Criminal Appeal is filed by the appellant-accused No.1 aggrieved by the judgment dated 16.01.2013 in S.C.No.277 of 2012 on the file of the 1st Additional Sessions Judge, Adilabad convicting him for the offence under Section 304-B of IPC and sentencing to rigorous imprisonment for a period of ten years.
2. The case of the prosecution in brief was that the appellant/A1 was a native of Beltharoda and he married one Parveen Begum during the year 2007 and had two children. Subsequently, Parveen Begum deserted him. A2, who was a distant relative of the complainant, arranged the marriage of the daughter of the complainant with A1. The complainant agreed to pay one tula of gold, Rs.30,000/- and household articles as dowry. The marriage of the daughter of the complainant was solemnised with A1 at Dharmabad eight (08) months prior to her death. After marriage, the deceased stayed with A1 and his parents and sister at Beltharoda for two (02) months. Thereafter, A1 and the deceased shifted to Asta village, as he got work as Imam. A1 and A2 started harassing the deceased physically and mentally for getting additional dowry of Rs.10,000/-, 1/2 tula gold and other household articles additionally. The 2 Dr.GRR, J CRLA_223_2013 complainant (father of the deceased) visited Asta to pacify the matter, but A1 and A2 picked up quarrel and demanded for additional dowry. Vexed with the harassment of A1, the deceased left Asta and went to her parents' house. The deceased informed about the harassment caused to her by A1 and A2 when she stayed with her parents for about 20 days. Then, A1 went and convinced the parents of the deceased and promised that he would not repeat the harassment and requested to send the deceased for family life. On his assurance, the complainant sent the deceased along with A1. About ten (10) days prior to the date of offence, A2 called on the complainant on his mobile and warned to pay additional dowry or else serious consequences might take place. On 23.05.2012, one Farooq, the neighbour of A1 and the deceased informed the complainant about the death of the deceased. The complainant along with his family members came to Asta and found his daughter dead. On observation of the dead body, they found injuries on neck. As such, the complainant lodged a report before PS, Mudhole on 24.05.2012 at 9:00AM.
3. Basing on the said report, the Assistant Sub-Inspector of PS, Mudhole registered a case in Crime No.55 of 2012 under Sections 302, 304-B IPC and Sections 3 and 4 of Dowry Prohibition Act. The Sub-Divisional Police Officer (SDPO) conducted investigation of the case. He gave a requisition to Executive Magistrate/Tahsildar to visit the mortuary to conduct inquest. He got photographed the dead body through a photographer. He secured the presence 3 Dr.GRR, J CRLA_223_2013 of witnesses and recorded their statements. The inquest was conducted by Tahsildar, Mudhole in the presence of witnesses. Later, the body was shifted for autopsy to Government Area Hospital, Bhainsa. The Medical Officer, who conducted the post mortem examination, gave a report stating that the cause of death of the deceased was due to 'throttling'. The Sub-Divisional Police Officer conducted scene of offence panchanama in the presence of mediators. On 25.05.2012 at 1700hrs, one Gopu Laxman produced A1 before SDPO. On interrogation, the accused admitted his guilt. The SDPO affected the arrest of the accused and produced him before the court for judicial custody. He recorded the statement of Gopu Laxman. On 18.06.2012 at 1200hrs, A2 came to Sub-Divisional Office, Bhainsa along with her husband and surrendered before SDPO. On interrogation, she voluntarily admitted her guilt. The SDPO affected her arrest and produced before the court for judicial custody. Though, the case was initially registered against A1 to A4, A3 and A4 being the parents of the Accused No.1, the SDPO after investigation came to know that the involvement of A3 and A4 was not made out as such, deleted their names from the charge sheet.
4. The SDPO, Bhainsa filed charge sheet against A1 and A2 alone for the offences under Sections 302, 304-B read with Section 109 IPC and Sections 3 and 4 of Dowry Prohibition Act.
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5. The case was taken cognizance by the Judicial Magistrate of First Class, Bhainsa and committed the matter to the court of the Principal District and Sessions Judge, Adilabad vide PRC 20 of 2012. The Principal District and Sessions Judge, Adilabad made over the case to the court of I Additional District and Sessions Judge, Adilabad, after numbering the same as SC.No.227 of 2012. Charges were framed against A1 for the offences under Sections 302, 304-B of IPC and Sections 3 and 4 of Dowry Prohibition Act and charges were framed against A2 for the offences under Sections 302 and 304-B read with Section 109 IPC and Sections 3 and 4 of Dowry Prohibition Act.
6. The Prosecution got examined PWs 1 to 16 and got marked Exs. P1 to P12. No defense evidence was adduced by A1 and A2.
7. On hearing the learned Additional Public Prosecutor and the learned defense counsel and on considering the oral and documentary evidence on record, the 1st Additional Sessions Judge, Adilabad found A2 not guilty for the offences under Sections 302, 304-B read with Section 109 IPC and under Sections 3 and 4 of Dowry Prohibition Act and acquitted her on all the counts.
8. The learned 1st Additional Sessions Judge, Adilabad found the accused No.1 not guilty for the offences under Section 302 IPC and Sections 3 and 4 of Dowry Prohibition Act and acquitted him from the said charges. However, he found A1 guilty for the offence under Section 304-B IPC and convicted him to rigorous imprisonment for a period of ten years.
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9. Aggrieved by the said conviction and sentence, A1 preferred this appeal contending that the judgment rendered by the trial court was contrary to the facts of the case, material on record and principles of criminal jurisprudence; the evidence of PWs 1 to 3 was vague, hearsay and improvised and the same was not in corroboration with the evidence of the independent witness PW5; the witnesses PWs 4, 6 and 7 who were neighbours and independent witnesses turned hostile and not supported the case of the prosecution. The prosecution failed to prove that the cruelty or harassment was for, or in connection with the demand of dowry within the meaning of Section 113-B of Indian Evidence Act. The panch witnesses for inquest PWs 10 and 11 had not supported the case of the prosecution. Thus, there was no corroboration with regard to the cause of death of the deceased to the evidence of PW15, the doctor who conducted the PME. The evidence on record would not show the definite cause of death of the deceased. The prosecution through the evidence of PWs 1 to 3 had not put forth clinching and convincing evidence on record about the proximate and live link between the effect of the alleged cruelty based on the alleged dowry demand and the concerned death. The prosecution failed to establish the ingredients of Section 304-B of IPC i.e., the cruelty or harassment of women was soon before her death and prayed to set aside the conviction and sentence imposed against the appellant/accused No.1.
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10. Heard the learned counsel for the appellant and the learned Assistant Public Prosecutor for the respondent State.
11. The learned counsel for the appellant submitted that the appellant was in jail since 23.02.2022, as the suspension of sentence was revoked and he was remanded to judicial custody since then and contended that there were several contradictions in the evidence of witnesses, the cause of death of the deceased was due to throttling as per the evidence of the doctor, who conducted the PME, examined as PW15, but the witnesses PWs 5,6,7 and 8 stated the cause of death of the deceased was due to hanging. There were contradictions in the evidence of PWs 1 to 3 and PW5 with regard to dowry given to A1 and additional dowry demand made. PW5 was none other than the junior paternal uncle of the complainant, PW1. The complainant initially filed a case including the parents and sister of A1, but Police deleted their names from the charge sheet. The complainant and his family members intended to secure conviction against A1 in one way or other. The entire evidence was interested, the prosecution failed to establish that the deceased was subjected to harassment soon before her death. At the most, the prosecution established its case under Section 498A IPC and relied upon various judgments of the Hon'ble Apex Court.
12. The learned Assistant Public Prosecutor on the other hand supported the judgment of the trial court and contended that only after thorough appreciation of evidence on record, the trial court found the accused guilty for the offence 7 Dr.GRR, J CRLA_223_2013 under Section 304-B IPC and therefore no interference was required in the said judgment and prayed to dismiss the appeal.
13. Now, the point for consideration is: Whether the conviction and sentence of the appellant/A1 for the offence under Section 304-B IPC by the 1st Additional Sessions Judge, Adilabad is in accordance with law or needs any interference by this court.
14. On a perusal of the evidence of the witnesses, PW1 is the complainant and father of the deceased, who lodged the complaint marked as Ex.P1, PW2 is the mother of the deceased, PW3 is the brother of the deceased, PW4 is the neighbour of the deceased who informed the complainant over phone about the death of the deceased on 23.05.2012 in the evening at 6:00PM, PW5 is the junior paternal uncle of PW1, who acted as mediator for the marriage and spoke about the payment of dowry and demand of additional dowry, PWs 6 and 7 are the neighbours at the house of the deceased and A1, at Asta, PW8 is the student of the A1, who went to the house of the deceased on instructions of A1 and found the body of the deceased, PW9 is the photographer who took the photos of the dead body at the scene of offence, PWs 10 and 11 are the panch witness for the inquest panchanama, PW12 is the panch witness for the crime detail form and rough sketch, PW13 is the ASI who registered the FIR, PW14 is the Tahsildar, Mudhole who conducted the inquest over the body of the deceased, PW15 is the doctor who conducted post mortem examination and 8 Dr.GRR, J CRLA_223_2013 PW16 is the Sub-Divisional Police Officer, Bhainsa who conducted the investigation of the case.
15. Out of these sixteen witnesses, PWs 4,6,7,8,10 and 11 turned hostile and not supported the prosecution case. As the trial court acquitted the accused No.1 for the offences under Section 302 and Sections 3 and 4 of Dowry Prohibition Act and also acquitted A2 for the offences under Section 302, 304-B read with Section 109 IPC and Sections 3 and 4 of Dowry Prohibition Act and the State had not preferred any appeal against such acquittal, this Court is not inclined to discuss the evidence on these charges. As this appeal is preferred by A1 only against his conviction and sentence under Section 304-B of IPC, this Court is confined to examine the legality of the conviction and sentence on the said count.
16. Section 304-B of IPC reads 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 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, 1961.9
Dr.GRR, J CRLA_223_2013
17. Section 2 of Dowry Prohibition Act defines "Dowry as follows:
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 parent 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 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 3 [***] Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).
18. Section 304-B of IPC was inserted by way of amendment by Act 43 of 1996 with effect from 19.11.1986 and Section 113-B was also introduced in the Indian Evidence Act by way of the same amendment. Section 113-B of Indian Evidence Act 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 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 304-B of the Indian Penal Code.10
Dr.GRR, J CRLA_223_2013
19. Section 304-B IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand. The prosecution must first establish the existence of necessary ingredients for constituting the offence under Section 304-B of IPC. Once these ingredients are satisfied, the rebuttable presumption provided under Section 113-B of Indian Evidence Act operates against the accused. As per the definition of dowry in Section 2 of Dowry Prohibition Act, 1961, the giving or agreeing to give dowry can be at any time. It can be at, before or at any time after the marriage. Thus, it can be even after many years after a marriage was solemnised.
20. The fundamental constituents for attracting the provisions of Section 304-B IPC are stated by the Hon'ble Apex Court in Biswajit Halder @ Babu Halder and others v. State of West Bengal1 as:
(a) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;
(b) such death should have occurred within seven years of her marriage;
(c) she must have subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment should be for or in connection with demand for dowry.
21. The Hon'ble Apex Court in State of Madhya Pradesh v. Jogendra and another2 held that:
"(3) The phrase "soon before" as appearing in Section 304-B IPC cannot be construed to mean 1 2007 (2) ALT (Crl.) 162 (SC) 2 (2002) 5 SCC 401 11 Dr.GRR, J CRLA_223_2013 "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives".
It also held that:
"(4). Section 304-B IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental".
22. In the light of these principles, the evidence of the witnesses has to be appreciated.
23. The evidence of PW15 would disclose that on 24.05.2012 on receipt of requisition from Mudhole Police Station at 3:30 PM, he along with Dr.Kashinath of the Government Area Hospital, Bhainsa conducted autopsy over the dead body of the deceased, aged 24 years and found the following injuries on her body:
1. Cutaneous bruise seen around neck at the level of Thyroid Cartilage.
2. Finger Nail abrasions were seen around neck, measuring 1/2 cm.
3. Congestion of tissue around neck.
4. Fracture of Hyoid bone (inward compression fracture) on left side.
The doctor stated that the said injuries were ante mortem in nature and the cause of death to the best of their knowledge was throttling. Ex.P12, post mortem certificate was marked through him. In his cross-examination, he specifically stated that the cause of death was not the fracture of hyoid bone and the death 12 Dr.GRR, J CRLA_223_2013 occurred due to cerebral anoxia due to throttling. Thus, the evidence of Doctor, PW15 would rule out that the cause of death was due to hanging.
24. The Tahsildar, Mudhole examined as PW14, who conducted the inquest panchanama stated that on 24.05.2012 on receipt of requisition from PW13 for holding inquest over the dead body of the deceased Yasmin @ Shameem, he conducted inquest over the body in the presence of panch witnesses and blood relatives i.e., parents of the deceased. He found an external injury on the neck of the deceased. He stated that the blood relatives and panchas opined that there were disputes between the deceased and the accused with regard to payment of money. The inquest panchanama was marked as Ex.P11 through this witness.
25. The learned counsel for the appellant contended that there were contradictions in the evidence of witnesses PWs 6,7 and 8 with the evidence of PWs 14 and 15 with regard to the cause of death of the deceased. PWs 6,7 and 8 stated that the cause of death of the deceased was due to hanging. PWs 6 and 7 are the neighbours of the deceased and A1 at their house at Asta. PW6 stated that on the date of death of the deceased, she along with others in the village went to the house of A1 and the deceased and found that the deceased died by hanging. PW7 also stated that after the death of the deceased, she went to the house of the deceased and A1 and found that the deceased died by hanging. PW8 is a student of A1. As per the prosecution case, he went to the house of the A1, on the instructions of A1 to get something and found the dead body of 13 Dr.GRR, J CRLA_223_2013 the deceased. PW8 stated in his evidence before the court that "by the time he went to the house of A1, the dead body of the deceased was found in hanging position".
26. These witnesses are not experts to speak about the cause of death of the deceased. They were only neighbours who visited the house of the deceased after the death of the deceased and stated what they have seen. As the evidence of PW15 would rule out that the cause of death of the deceased was not due to hanging but due to cerebral anoxia due to throttling, someone who caused the death of the deceased by throttling might have given a picture that the deceased died due to hanging to show it as a suicide. The finger nail abrasions around the neck noted in Ex.P12, PME also would rule out the theory of hanging.
27. But, however, to prove the evidence under Section 304-B IPC, the prosecution need not establish that the cause of death of the deceased was due to homicide and not suicide. It is sufficient if it is shown that the deceased died otherwise than under normal circumstances, which can be either homicide or suicide or caused by any burns or bodily injury. What is excluded was that the death should not be an accidental one or under normal circumstances. As such even, if it is considered that there were contradictions in the evidence of the witnesses with regard to the cause of death of the deceased, the said contradictions were not material to throw the case out of the purview of Section 14 Dr.GRR, J CRLA_223_2013 304-B IPC. But, however, there is no reason to suspect the evidence of PW15 with regard to the cause of death of the deceased was due to throttling.
28. As seen from the evidence of PWs 1 to 3, these witnesses; the father, mother and brother of the deceased stated that the deceased Yasmin @ Shameem was their daughter. PWs 1 and 2 were having seven (07) daughters and one (01) son. They performed the marriage of the deceased with A1 eight months back. At the time of marriage, they presented Rs.30,000/- cash, 1 tula of gold, 12 tulas of silver and other household articles. After the marriage, the deceased and A1 lived for sometime at Beltharoda and later they shifted to Asta Village. A1 got a job as Imam in a masjid at Asta village. After their marriage, A1 started demanding additional dowry of Rs.10,000/-, 1/2 tula gold and other household articles. Disputes arose between the deceased and A1. On receiving the information, PW1 went to the house of A1. On that, A1 asked PW1 to discuss with his mother, sister and A2 and after they came from Beltharoda, a quarrel ensued between them with regard to demand for additional amount and additional articles by A1, and A1 left the deceased at her parental house and she stayed with them for about 15 days. After 15 days, A1 came to his in-laws house and took away the deceased with him. After one month, the complainant went to the house of his daughter and A1. On that, A1 had not allowed him into the house stating that unless additional amount of Rs.10,000/- and additional articles were presented, he would not permit him into the house. Accordingly, 15 Dr.GRR, J CRLA_223_2013 he returned back. The deceased died 15 days later. The complainant was informed by phone from others of that village. Accordingly he rushed to the Asta village and found the dead body of the deceased in the house of A1 and found external injuries on the body of the deceased, on her back portion, neck and throat and lodged the complaint.
29. PW2 stated that two months after the marriage of the deceased with A1, A1 started demanding additional dowry of Rs.10,000/-, 1/2 tula gold. A2 informed about such demand of A1 over phone. At that time, the deceased was at her house, they convinced the deceased during her stay with them and sent her back to the house of A1. They promised to arrange the amount of Rs.10,000/- within one month but they were unable to adjust that amount. She along with PW1 went to the house of A1. On that he asked them to stay during that night at his house and called his mother and A2. Accordingly they came and started quarrelling with them. Thereafter, she and her husband left the house of A1. She further stated that even in their presence A1 bet the deceased. Again on another occasion, PW1 went alone to the house of A1 to see the deceased. At that time, A1 had not permitted PW1 to enter into their house stating that unless the demand for additional dowry of Rs.10,000/-, 1/2 tula gold was satisfied, he would not permit PW1 to enter into the house. Thereby, PW1 returned back to their house. After 15 days, A2 made a phone call and stated that she would not be responsible if something happens to the deceased since 16 Dr.GRR, J CRLA_223_2013 they failed to pay the additional dowry and to present 1/2 tula gold. After receiving the information about the death of the deceased, they went to the house of A1 and found the dead body of the deceased with injuries on her knees, on her back and also injuries with cigarette butts. The deceased was carrying three months pregnancy at the time of her death.
30. PW3, the brother of the deceased also stated about the dowry given at the time of marriage and additional dowry demand made by A1 and A1 leaving the deceased at their house and his parents being necked out from the house of A1 unless the demand of 1/2 tula of gold and Rs.10,000/- cash was met, accordingly, his parents returning back to the house.
31. PW5, stated that he had settled the marriage of the deceased Yasmeen @ Shameem with A1. The marriage was performed at Pulenagar of Dharmabad in the State of Maharashtra. At the time of her marriage, PW1 promised for payment of Rs.20,000/- cash, 1 tula of gold and 12 tulas of silver and presented the same at the time of marriage. After their marriage, A1 and the deceased lived at their house at Beltharoda. Thereafter, accused No.1 started harassing the deceased and finally killed her by hanging with a demand for additional amount of Rs.50,000/- as PW1 was unable to meet such demand. He also went to the house of A1 and found the dead body of the deceased. In his cross examination, he stated that he was junior paternal uncle of PW1. 17
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32. The contention of the learned counsel for the appellant was that there were several contradictions in the evidence of PWs 1 to 3 and 5. While PWs 1 to 3 stated that they gave a dowry of Rs.30,000/- in cash, PW5 stated about giving Rs.20,000/- cash. While PWs 1 to 3 stated about additional dowry demand of Rs.10,000/- and 1/2 tula gold, PW5 stated about the additional dowry demand of Rs.50,000/-. PW2 stated that the deceased was carrying three months pregnancy which was not stated by the doctor who conducted PME. Likewise, PW2 also stated that there were injuries on the body of the deceased on her knees, back and with cigarette butts which were not stated by the doctor or the inquest panch witness, thus, the evidence of these witnesses could not be believed to come to a conclusion about the harassment of the deceased for additional dowry demand.
33. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in Sunil Kumar Sambhudayal Gupta (Dr.) and Others v. State of Maharashtra3, wherein it was held that:
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal 3 (2010) 13 SCC 657 18 Dr.GRR, J CRLA_223_2013 course would not be justified in reviewing the same again without justifiable reasons."
34. In the same case, the Hon'ble Apex Court while extracting its judgment in State of Rajasthan v. Kalki4 held that:
"8. ..... In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person".
35. The Hon'ble Apex Court also extracted its judgment in Bihari Nath Goswami v. Shiv Kumar Singh5 and held that:
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility".
36. The Hon'ble Apex Court further held that:
"37.While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited".4
AIR (1981) SC 1390 5 (2004) 9 SCC 186 19 Dr.GRR, J CRLA_223_2013
37. In the present case, the evidence of PWs 1 to 3 and 5 is consistent about the dowry paid by them and also that A1 demanded for additional dowry. Though, there may be slight contradictions in the evidence of PWs 1 to 3 and 5 as to the quantum of dowry paid by them and the additional dowry demanded, the said discrepancies would not make their evidence untruthful. PW2 stating about the deceased carrying three months pregnancy and finding injuries of cigarette butts could be an exaggeration, but the same would not render her evidence impeachable on other aspects.
38. The evidence of these witnesses is consistent with regard to A1 demanding additional dowry and leaving the deceased at the house of PWs 1 to 3 with the said demand and refusing PW1 to enter into their house unless the said demand was met.
39. Thus, the evidence of these witnesses would show that the harassment was not restricted to one particular instance, but was a course of conduct spread over the past six months prior to her death. The contention of the learned counsel for the appellant was that there was no evidence led by the prosecution that soon before her death, the deceased was subjected to harassment or cruelty by A1 demanding additional dowry.
40. The judgment of the Hon'ble Apex Court relied by him in State of Madhya Pradesh v. Jogendra and Another (2 supra) itself would disclose that:
20
Dr.GRR, J CRLA_223_2013 the meaning of the expression "soon before her death" has been discussed threadbare in several judgments. In Surinder Singh v. State of Haryana 6 , while relying on the provisions of Section 113-B of the Evidence Act, 1872 (for short "the Evidence Act) and Section 304- B IPC, where the words "soon before her death" find mention, the following pertinent observations have been made: (SCC pp.137- 139, paras 17-18) "17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304- B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of 6 (2014) 4 SCC (Cri) 769 21 Dr.GRR, J CRLA_223_2013 Punjab 7 where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222-23, para 15) '15. ... 'Soon before' is a relative term 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." Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.7
(2000) 5 SCC 207 22 Dr.GRR, J CRLA_223_2013
16. In Rajinder Singh v. State of Punjab 8 , falling back on the rulings in Kans Raj v. State of Punjab (7 supra), Dinesh v. State of Haryana 9 and Sher Singh v. State of Haryana10, it has been emphasized that "soon before" is not synonymous to "immediately before" and the following observations have been made (Rajinder Singh v. State of Punjab (8 supra), SCC p.493, para 24): -
"24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B."
17. In the above context, we may usefully refer to a recent decision of a three Judge Bench of this Court in Gurmeet Singh v. State of Punjab 11 that has restated (at SCC pp.111-12, para 9) the detailed guidelines that have been laid down in Satbir Singh and Another v. State of Haryana 12 , both authored by Chief Justice N.V. Ramana, relating to trial under Section 304-B IPC where the law on Section 304-B IPC and Section 113-B of the Evidence Act has been pithily summarized in the following words: Satbir Singh and Another v. State of Haryana (12 supra), SCC p.13, para 38 "38.1. Section 304-B IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand. 38.2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-
B IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided 8 (2015) 3 SCC (Cri)225) 9 (2014) 6 SCC (Cri) 839 10 (2015) 2 SCC (Cri) 422 11 (2021) 2 SCC (Cri) 771 12 (2021) 2 SCC (Cri) 745 23 Dr.GRR, J CRLA_223_2013 under Section 113-B of the Evidence Act operates against the accused.
38.3. The phrase "soon before" as appearing in Section 304- B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.
38.4. Section 304-B IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental."
41. Thus, the words soon before appearing in Section 304-B could not be construed immediately before and it could be stretched to any period. The proximate and live link between the effect of cruelty based on the demand of dowry and on consequential death was required to be proved by the prosecution.
42. The evidence of PWs 1 to 3 and 5 would prove that the death of the deceased occurred within eight (08) months of her marriage and she was subjected to cruelty or harassment in the hands of her husband and such cruelty or harassment was in relation to demand for dowry.
43. Thus, the prosecution proved the guilt of the accused for the offence under Section 304-B IPC successfully. It was for the accused to rebut the said presumption and the accused failed to adduce evidence and failed to rebut the said presumption. As such, the trial court rightly held A1 guilty for the offence under Section 304-B IPC. The sentence imposed against him is also appropriate 24 Dr.GRR, J CRLA_223_2013 to the facts and circumstances of the case. Hence, this Court does not find any reason to interfere with the same.
44. Hence, the point is answered accordingly in favour of the prosecution as against the appellant and the appeal preferred by the appellant/A1 is dismissed upholding the judgment of the trial court in confirming the guilt of A1 for the offence under Section 304-B IPC and confirming the sentence imposed against him.
45. Miscellaneous applications pending, if any, shall stand closed.
___________________________ DR. G.RADHA RANI, J Date: 07-11-2022 nsk 25 Dr.GRR, J CRLA_223_2013 Citations:
1. Biswajit Halder @ Babu Halder and others v. State of West Bengal, 2007 (2) ALT (Crl.) 162 (SC)
2. State of Madhya Pradesh v. Jogendra and another, (2002) 5 SCC 401
3. Sunil Kumar Sambhudayal Gupta (Dr.) and Others v. State of Maharashtra, (2010) 13 SCC 657
4. State of Rajasthan v. Kalki, AIR (1981) SC 1390
5. Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186
6. Surinder Singh v. State of Haryana, (2014) 4 SCC (Cri) 769
7. Kans Raj v. State of Punjab, (2005) 5 SCC 207.
8. Rajinder Singh v. State of Punjab, (2015) 3 SCC (Cri) 225
9. Dinesh v. State of Haryana, (2014) 6 SCC (Cri) 839
10. Sher Singh v. State of Haryana, (2015) 2 SCC (Cri) 422.
11. Gurmeet Singh v. State of Punjab, (2021) 2 SCC (Cri) 771
12. Satbir Singh and Another v. State of Haryana, (2021) 2 SCC (Cri) 745