State, Government Of National ... vs Puran Chand & Ors.
2012 Latest Caselaw 2326 Del

*                    THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL.REV.P. 116/2011

                                               Date of Decision: 11.04.2012

STATE,  GOVERNMENT      OF   NATIONAL    CAPITAL
TERRITORY OF DELHI, NEW DELHI
                                  .... PETITIONER

                             Through:    Mr.Saleem Ahmed, ASC with
                                         Mr.Puneet Relan, Advocate.


                                    Versus

PURAN CHAND & ORS.                                     ....RESPONDENTS

                             Through:    Mr.C.Rabindra Singh, Advocate
                                         with Mr.Harinder Chowdhary,
                                         Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J.

1. The present revision petition has been preferred by the State under Section 397 Cr. P.C. read with Section 482 Cr. P.C., assailing the impugned order dated 14.05.2010 passed by the learned Additional Sessions Judge, whereby he has discharged the accused persons/respondents of the offences under Section 304-B/34 IPC.

2. An FIR no. 123/2008 under Section 498-A,304-B was registered on 19.04.2008 at P.S. Kalyanpuri at the instance of Raghubar Dutt

(complainant), who complained that the marriage of his daughter Deepa was solemnized with Suraj @Anand (respondent no.2 ) on 06.05.2006 according to Hindu rites . He further stated that, one week before marriage, the father of the groom i.e. Puran Chand (respondent no.1) came to his house along with his daughter Savitri (respondent no.3) and demanded fridge, T.V., almirah, ring and nose pin. As the wedding cards were already distributed, the complainant was constrained to arrange for these items, by going beyond his limited means. It was further alleged by the complainant that after one and a half month of marriage, Puran Chand again made a demand of a motor cycle to him, which could not be fulfilled. It was stated that when Deepa visited her maternal home on Rakshabandhan, she disclosed that she was not allowed to live with her husband and was continuously harassed by her in-laws for not bringing enough dowry and was also beaten many times by her sister-in-law Savitri. On 18.04.2008, the complainant was informed by his nephew that his daughter Deepa is in a serious condition and he should immediately reach her house. It was stated by the complainant that on reaching her house, he came to know that Deepa had passed away on the previous evening. It was alleged by the complainant that his daughter had taken her life due to the continuous harassment meted out to her by her in-laws.

3. After registration of FIR, investigation was carried out by the police and statements of the family members of deceased Deepa were recorded under Section 161 Cr.P.C. and charge sheet was filed under Section 498-A/304-B/34 IPC. The matter was heard on charge on 14.05.2010 and it was opined by the ld. ASJ, that a prima facie case was made out

against the accused persons under Section 498-A. He, however, discharged them of the offences under Section 304-B. Hence, the present petition.

4. The impugned order has been challenged by the learned ASC on the ground that the facts of the case and the evidence on record were not appreciated by the ld. trial Court and it was wrongly observed that there were no allegations of any cruelty or harassment of the deceased soon before her death . It has been further submitted by the learned ASC that the statements of the witnesses have not been taken into account by the ld. trial Court, wherein it has been categorically mentioned that the deceased was tortured by her in-laws and husband for dowry and further that after the birth of a female child she was subjected to immense sufferings by the accused persons. The impugned order has further been challenged on the ground that the death of the deceased took place within seven years of the marriage due to hanging and there was enough evidence on record to raise a presumption under Section 113-B of the Indian Evidence Act against the accused persons that the deceased was harassed in connection with dowry, yet all these aspects have been summarily dismissed by the ld. trial Court.

5. Per contra, the learned counsel for the respondents submitted that Section 304B IPC could not be invoked against the accused persons on the basis of vague submissions made by the family members of the deceased.

6. The law provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal

circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry, such death shall be called dowry death and punishable under Section 304-B IPC. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death".

7. Section 113B of the Evidence Act which is also relevant 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

Explanation.-- For the purposes of this section," dowry death" shall have the same meaning as in section 304B of the Indian Penal Code."

8. The Hon'ble Supreme Court in the case of Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar, AIR 2005 SC 785 held thus:

"A conjoint reading of Section 113B of the Evidence Act, 1872 and Section 304B, I.P.C. 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, I.P.C. are pressed into service. Prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitutes 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, I.P.C. and Section 113B of the Evidence Act is present with the idea of proximity test. 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".

9. It may be noted that the legislature in its wisdom has used the word "shall" thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with or demand of dowry. It is unlike the provisions of Section 113A of the Evidence Act where a discretion has been conferred upon the court to raise presumption of abetment of suicide by a married woman. The word used in this Section 113A is 'may' which gives discretion to the Court to raise presumption or not depending upon the circumstances of the case. Therefore, in view of the above, onus lies on the accused to rebut the presumption of Section 113B relatable to Section 304 IPC.

10. The only requirement of Section 304B IPC and Section 113B Evidence Act is that death of a woman has been caused by means other than accidental or natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry.

11. Now, I may see the facts of the case and evidence adduced by the prosecution to find out whether the essential ingredients of Section 113- B of the Evidence Act were established so as to frame charges against the accused persons under Section 304-B, IPC. The death of the deceased happened due to hanging which cannot be said to be a death under normal circumstances. Also, the death took place within seven years of marriage. There are also specific allegations against the husband and in-laws of the deceased that she was subjected to cruelty which led her to this extreme step. It has to be seen whether such cruelty as alleged was in connection with demand of dowry and whether such cruelty meted out to the deceased extended to the period soon before her death or not.

12. From the perusal of the FIR, it can be seen that the father of the deceased, Deepa gave his statement that prior to one week of the marriage, the father and sister of the husband of the deceased visited his house and demanded various articles like fridge, TV, washing machine, almirah, ring, etc. There can be no doubt regarding the fact that this was a demand for dowry by the respondents. It was also disclosed in the FIR by the complainant that the respondent No.1 had also demanded a motorcycle after 1½ months of the marriage which was not fulfilled because of the reason that the husband of the deceased did not have a driving licence as he was a handicap. It was further stated by the complainant that when the deceased visited her maternal house on Raksha Bandhan, he informed that she was not allowed to stay with her husband and was under continuous harassment by her in-laws.

13. Further, in the statement given by the uncle of the deceased under Section 161 Cr.P.C., it was alleged by him that even after fulfilling the demand for dowry made by the respondents one week before the marriage, at the time of Varmala, the husband of the deceased made a demand of gold chain and ring. It was stated that only after this demand was fulfilled, the marriage could take place. It is also mentioned by him that when the demand of motorcycle made by Puran Chand was not fulfilled, all the members of his family started torturing the deceased. It was further complained that when his wife went to visit Deepa at her house, she witnessed the ill-treatment meted out to her by her in-laws and it was also stated that after the birth of a girl child, Deepa was tortured to such an extent that she hanged herself. In the statements of the aunt, maternal sister, bhabhi and the father of the deceased under Section 161 Cr.P.C. recorded by the Investigating Officer, identical allegations of demand of dowry and continuous harassment of the deceased were made by them. From the perusal of these statements, it is noted that the ill-treatment of the deceased was in connection with the demand of dowry and since that more recent demand of motor cycle could not be fulfilled, the harassment of the deceased continued till her death. There was no reason to doubt that such ill-treatment was due to any reason other than the demand for dowry and did not continue till before her death. From the sequence of events narrated by the family members of the deceased, a grave suspicion is raised that the ill- treatment of the deceased was in relation to the demand of dowry by her in-laws and was not only proximate to her death, but and instead was the cause of the suicide committed by the deceased.

14. In my considered opinion, all the requirements of Section 113-B of the Indian Evidence Act were established by the prosecution beyond any reasonable doubt to draw a presumption against the accused persons to invoke Section 304B IPC. There was enough evidence on record to indicate the existence of the live link between the effect of cruelty based on dowry demand and the death of the deceased.

15. At the time of framing of charges, the learned Trial Court was not required to examine the possibility of conviction of the accused persons, but only had to see that whether on the basis of material on record, a prima facie case against the accused persons under Section 304B IPC was made out or not. I am in entire agreement with the submission of the learned ASC that the Trial Court while framing the charges against the accused persons did not appreciate the statements on record to judge whether the provisions of Section 113-B, Indian Evidence Act were required to be invoked or not.

16. In view of the above discussion, the impugned order of the Trial Court is modified to the extent that while maintaining the charge under Section 498A against the accused persons, they shall also be charged under Section 304B IPC.

17. Petition is disposed of accordingly.

M.L. MEHTA, J.

APRIL 11, 2012/akb