Mahavir Kumar & Ors. vs State
2014 Latest Caselaw 2480 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: May 16, 2014

+                    CRL.A. 611/1999

MAHAVIR KUMAR & ORS.                                ..... Appellants
                Through:                Mr.K.B. Andley, Sr. Advocate
                                        with Mr.M.L.Yadav and Mr.
                                        Lokesh Chandra, Advocates.

                          versus

STATE                                               ..... Respondent
                          Through:      Mr.Ravi Nayak, APP

%

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment and order on

sentence dated 16th October, 1999 and 23rd October, 1999 respectively

passed by the learned Additional District and Sessions Judge, Delhi in

Sessions Case Nos.161/97 arising out of FIR No.52/96, PS Tilak

Nagar whereby the appellants were convicted u/s 304B IPC and were

sentenced to undergo imprisonment for life and a fine of Rs.50,000/-

each, in default of payment, to further to undergo Simple

Imprisonment for 5 years each.

2. Background facts as projected by the prosecution in nutshell are

as follows:

3. On 20th January, 1996, on receipt of DD No.15A, PW5 ASI

Shekhar Lal along with Constable Umed Singh went to house No.

WZ-175, Harijan Colony, Tilak Nagar where he found window of a

room broken and the door of the room was locked from inside and

saw a lady hanging in the room. After sending a boy through the way

of window he got the door of the room opened and found the dead

body of Saroj. The dead body was brought on the floor after cutting

the chunni with which it was hanging. Information was sent to SDM

Mr. Dahia to initiate inquest proceedings. One suicide note was

found lying on a table in the room which was seized vide seizure

memo Ex.PW2/A in the presence of PW3 Inderjeet and PW2 Dalip.

The dead body was sent to mortuary at Sabzi Mandi. When the

belongings of the room were searched, at that time father of the

deceased Ved Prakash produced one letter allegedly written by the

deceased to her parents which was seized vide seizure memo

Ex.PW5/A. SDM conducted the inquest proceedings in respect of the

dead body. After the post mortem, the dead body was given to the

father of the deceased. On 22nd January, 1996, PW14 Sh. K.K. Dahia

recorded the statement of Ved Prakash (Ex.PW10/B) and directed

SHO PS Tilak Nagar to register the case under the appropriate

provision of law and investigate the case according to law.

Accordingly, FIR under Section 498A/304B IPC was registered.

During the course of investigation, all the accused were arrested.

After completing investigation, charge sheet was submitted against

them.

4. After hearing arguments on charge, vide order dated 5th

August, 1997, charge under Section 304 B IPC was framed against all

the accused to which they pleaded not guilty and claimed trial.

5. In order to bring home the guilt of the accused, prosecution, in

all, examined 16 witnesses. All the incriminating evidence was put to

the accused persons wherein factum of marriage of the deceased Saroj

with accused Mahavir on 7th May, 1995 was admitted. It was also

admitted that the remaining accused Shri Chand, Chameli and Sarla

are father-in-law, mother-in-law and sister-in-law respectively of the

deceased. It was also admitted that after marriage, deceased started

living with the accused persons at her matrimonial home WZ 175,

Harijan Colony, Tilak Nagar, Delhi. It was also admitted that on 20th

January, 1996, Saroj committed suicide and on receipt of DD No.

15A, ASI Shekhar Lal along with Constable Umed Singh reached H.

No. WZ-175, Harijan Colony, Tilak Nagar, Delhi where they found a

lady hanging in the room. The dead body was brought on the floor.

A suicide note was found on the table which was seized by the police.

However, rest of the case of the prosecution was denied. All the

accused pleaded their innocence. It was alleged that the deceased

was never harassed nor any dowry was ever demanded nor any

cruelty was ever inflicted upon her. It was alleged that she was living

happily in the house and was well looked after. She was never

beaten. In support of their defence, they examined DW1 Sh.Anand

and DW2 Sh.Raghuvir Singh, both of whom are neighbours of the

accused and have deposed that the accused persons used to look after

and keep the deceased in proper manner and no dowry was ever

demanded in their presence.

6. After considering the evidence led by the prosecution, learned

Trial Court came to the conclusion that all the essential ingredients of

Section 304B IPC were duly proved by the prosecution. Prosecution

had succeeded in proving that the deceased was subjected to taunts

regarding bringing of insufficient dowry and cruel treatment was

accorded to her by physical beatings or mental torture. That being so,

a presumption under Section 113B of the Evidence Act has to be

drawn that the accused persons committed dowry death. As such, all

the accused were held guilty under Section 304B IPC and were

sentenced as mentioned above.

7. Feeling aggrieved by the aforesaid finding of the learned Trial

Court, the present appeal has been preferred by the appellants.

However, during the pendency of the appeal, one of the appellants,

namely, Shri Chand expired on 19th January, 2006. Therefore, vide

order dated 1st November, 2013, the appeal qua him stood abated.

8. It was submitted by Sh.K.B.Andley, learned Senior Advocate

duly assisted by Sh.M.L. Yadav, Advocate for the appellant that only

charge under Section 304B IPC was framed against the appellants and

there was no separate charge under Section 498A IPC. So far as

appellant Sarla is concerned, she is the sister-in-law of the deceased

and was married at least five years prior to the marriage of the

deceased with Mahavir Prasad and was residing at Palam Colony, Raj

Nagar, Delhi which was about 15 k.m. away from her parental home.

Only occasionally she used to visit her parental home. As such, there

was no possibility of her presence on the day of incident when suicide

was committed by the deceased. Deceased herself had left a suicide

note wherein she had completely exonerated her husband and father-

in-law. The suicide note has not been considered at all by the learned

Trial Court. Immediately after the incident, no complaint was lodged

by the parents of the deceased. It was only on 22nd January, 1996

father of the deceased gave a statement to the SDM which also does

not reflect that there was any harassment meted out to the deceased

on account of dowry. The prosecution has relied upon the testimony

of father, mother and maternal uncle of the deceased who are giving

different versions regarding the treatment meted out to the deceased.

The allegations are quite vague and are in fact inconsistent with each

other. Reference was also made to the letters handed over by father

of the deceased to the police which also does not reflect any

harassment to the deceased regarding demand of dowry. Moreover,

there is nothing on record to show that "soon before death" there was

any demand of dowry in order to bring the case within the four

corners of 304B IPC. After a lapse of more than one month,

statement of PW8 Kanwar Pal, maternal uncle of the deceased was

recorded. It also does not inspire any confidence. As such, it was

submitted that prosecution has failed to bring home the guilt of the

appellants and they are entitled to be acquitted.

9. Sh. Ravi Nayak, learned Additional Public Prosecutor for the

State, on the other hand, relied upon two undated distinct hand written

notes recovered from the room of the deceased Saroj @ Rekha and

one hand written letter, which was tied to the left forearm of the

deceased and was found by Dr. Ashok Kumar for submitting that

these letters are a record book of what treatment was meted out to her

at her matrimonial home. If all these letters are read over, it only

creates doubt regarding recovery of suicide note found on the table.

He further referred to the testimony of Ved Prakash, Bimla and

Kanwar Pal for submitting that their testimony remains consistent

regarding harassment and treatment given to the deceased for

insufficient dowry. Kanwar Pal has further deposed regarding

demand of Rs.10,000/- which was soon before her death. The

appellants have not been able to rebut the presumption under Section

113B of the Evidence Act. No evidence has come from the side of

the appellants that they were not present at their house when the

incident took place. Post mortem report of the deceased was also

referred to for submitting that the Doctor found the bladder and the

rectum empty, corroborating the suggestion that the deceased was

often made to sleep hungry as she has stated in the letter. Delay of

one day in registration of the FIR is no ground to doubt the

prosecution case as it has come in the deposition of the parents of the

deceased that soon they reached the matrimonial room of their

daughter, accused Mahavir and Shri Chand took father of the

deceased in a corner and asked him not to make any statement to the

police. Even mother was stopped by the accused Chameli Devi from

entering the crowd to find out about the incident. Under the

circumstances, it was submitted that the impugned judgment does not

suffer from any infirmity which calls for interference. Reliance was

placed on Surinder Singh v. State of Haryana, 2013 (13) SCALE

691 and Bhateri Devi & Anr. v. State of Delhi, 2013 (4) JCC 2907.

10. We have given our anxious thoughts to the respective

submissions of learned counsel for the parties and have also perused

the Trial Court record.

11. The dowry system is in existence from the time immemorial in

different forms and in different sects of society. It having taken the

form of a wide spread epidemic became a matter of concern for the

State as well as the social reformatory institutions. The Legislature

became alert to the urging necessity of eradicating this social evil by

appropriate enactment. True it is that Legislation cannot by itself

solve the deep rooted social problem and it is only the education of

the society in a particular direction and the efforts of the reformative

bodies that social problems can be solved, however, the Legislation

has played an important role in curbing the lust of dowry hungry

persons. The Legislature, as such, enacted the Dowry Prohibition

Act, 1961 and introduced subsequent amendments in the provisions

thereof to help the helpless weaker section of the society, i.e., the

women folk from the torture and harassment, mental and physical at

the hands of the husband and in laws on account of their parents being

unable to quench the ever increasing thirst for the property in the

form of dowry. Not only those who want to raise their status by

managing to get the necessities, comforts and luxuries of life though

marriage but the effluent section of the society even in certain cases

has a lust for easy money or material through the institution of

marriage. Thus the sacred ties of the marriage are given deplorable

form and the vows taken by the husband at the alter of marriage are

pushed in oblivion and continuous demand every now and then is

either directly made by the husband or his relatives to the parents of

the bride at the time of marriage or subsequent thereto.

12. Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be

referred as 'the Act') defines the term 'dowry' as under:

"Sec. 2 Definition of 'Dowry': In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."

13. The insertion of the word "or any time after the marriage" and

"in connection with the marriage of the said parties" by amendments

in the year 1986 and 1984 respectively has significance because

clever parties initially do not enter into any agreement or make a

demand but subsequent to the marriage after the lapse of some period

make the demand directly or through the wife in order to make a

show that it is not dowry. It is for this reason that Legislation in its

wisdom included subsequent demands and the things given as

inclusive in the definition of "dowry". Along with these amendments,

provisions were inserted in the Indian Penal Code and in the Indian

Evidence Act. Section 304B was inserted in Indian Penal Code as a

new provision in the category of offences falling under sections 302,

304A and 307 IPC, in order to curb the lust of procurement of the

dowry in the past marital life.

14. Section 304B reads as under:

"304B. Dowry death:Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death."

Explanation-For the purpose of this sub-section "dowry" shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (28 of 1961). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

15. Hon‟ble Supreme Court in Sunil Bajaj v. State of MP, (2001)

9 SCC 417, after noticing the provisions of section 304B IPC had

opined that in order to establish an offence u/s 304B IPC, following

ingredients must be established before any death can be termed as

dowry death:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (2) Such death must have occurred within 7 years of her marriage.

(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.

(4) Such cruelty or harassment must be for or in connection with demand of dowry.

16. This section will apply whenever the occurrence of death of a

woman is preceded by cruelty or harassment by husband or in-laws

for dowry and death occurs in unnatural circumstances. The intention

behind this section is to fasten the guilt on the husband or in-laws

though they did not in fact caused the death. It may be noticed that

punishment for the offence of dowry death under Section 304B is

imprisonment of not less than 7 years, which may extend to

imprisonment for life, unlike under Section 498A IPC, where husband

or relative of husband of a woman subjecting her to cruelty shall be

liable to imprisonment for a term which may extend to three years

and shall also be liable to fine. Normally, in a criminal case accused

can be punished for an offence on establishment of commission of

that offence on the basis of evidence, may be direct or circumstantial

or both. But in case of an offence under Section 304B IPC, an

exception is made by deeming provision as to the nature of death as

"dowry death" and that the husband or his relative, as the case may

be, is deemed to have caused such death, even in the absence of

evidence to prove these aspects but on proving the existence of the

ingredients of the said offence by convincing evidence. Hence, there

is need for greater care and caution, that too having regard to the

gravity of the punishment prescribed for the said offence, in

scrutinizing the evidence and in arriving at the conclusion as to

whether all the above mentioned ingredients of the offence are proved

by the prosecution.

17. Section 113B of the Evidence Act is also relevant for the case

in hand. Both Section 304-B IPC and Section 113B of the Evidence

Act were inserted by Dowry Prohibition (Amendment) Act 43 of

1986 with a view to combat the increasing menace of dowry deaths.

Section 113 B of the Evidence Act, 1872 reads as under:-

"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 (45 of 1860)"

18. As per the definition of "dowry death" in Section 304B Indian

Penal Code and the wording in the presumptive Section 113B of the

Evidence Act, one of the essential ingredients amongst others, in both

the provisions is that the woman concerned must have been 'soon

before her death' subjected to cruelty or harassment "for or in

connection with the demand for dowry". While considering these

provisions, Hon‟ble Court in M. Srinivasulu v. State of A.P., (2007)

12 SCC 443 has observed thus:

"8.4... The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B Indian Penal Code.)

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death."

19. A perusal of Section 113B of the Evidence Act and Section

304B Indian Penal Code shows that there must be material to show

that "soon before her death" the victim was subjected to cruelty or

harassment. In other words, the 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 prosecution is obliged to show that soon before

the occurrence, there was cruelty or harassment and only in that case

presumption operates.

20. Adverting to the case in hand, as regards the first ingredient

that the death of a woman must have been caused by burns or bodily

injury or otherwise than under normal circumstances, the prosecution

has examined Dr. Ashok Jaiswal (PW1) who conducted the post

mortem on the dead body of the deceased Saroj and proved reports

Ex. PW1/A and Ex.PW1/B opining that the death was due to ante

mortem hanging caused by ligature found tied around neck. In cross-

examination, he could not rule out the possibility of suicide. The fact

that death of Saroj has taken place due to hanging also stands proved

from the testimony of PW2 Dilip, PW3 Inderjeet and PW5 ASI

Shekhar Lal, PW7 Bimla, PW10 Ved Prakash and PW13 Constable

Umed Singh. A suicide note Ex. PW2/B was also found wherein the

deceased has stated that she is committing suicide. The factum of

committing suicide by the deceased is not even disputed by the

accused. Under the circumstances, it stands proved that Saroj @

Rekha had committed suicide. Suicide committed by a woman comes

within the purview of Section 304B IPC as it is also a case of death

which does not occur under normal circumstances. As such, it is

proved that Saroj @ Rekha died "otherwise than under normal

circumstances".

21. It is also undisputed case of the parties that the marriage of the

deceased had taken place with the accused Mahavir on 7th May, 1995

and the unfortunate incident has taken place on 20th January, 1996,

i.e., within eight months and 13 days of the marriage. As such, the

first two ingredients mentioned above are satisfied.

22. We now have to see whether the third ingredient is also

satisfied by looking at the evidence on record.

23. Out of 16 witnesses examined by the prosecution, material

witnesses in this regard are PW7 Smt. Bimla, PW8 Kanwar Pal and

PW10 Ved Prakash, mother, maternal uncle and father respectively of

the deceased.

24. PW7 Smt. Bimla, mother of the deceased has deposed that after

marriage her daughter Saroj started living at her matrimonial home at

Tilak Nagar. Sufficient dowry was given in the marriage according to

her status and capacity despite that all the accused persons used to

taunt her for insufficient dowry which fact was stated to her by her

daughter after two months of the marriage when she came to her

house. Her daughter informed her that she was being taunted for

bringing less dowry and no articles for the in-laws. She was also

beaten up by all the accused persons for bringing insufficient dowry.

These facts were disclosed by her on the occasion of Bhaiya Dooj and

Raksha Bandhan when she came to her house. On 18th January, 1996,

Chameli Devi, mother-in-law of the deceased came to her house in

order to greet her as she was going to be the grandmother. She

reciprocated the same. However, on 20th January, 1996, Bittoo, s/o

Mohinder came to her and informed that condition of her daughter

was not good. As such, she rushed to house of her daughter along

with her husband and found a crowd and police officials and found

her daughter hanging with a ceiling fan in a room. In cross-

examination, she admitted that she did not state to the police that she

was informed by her daughter that she was taunted and beaten up due

to insufficient dowry.

25. PW8 Kanwar Pal is the maternal uncle of the deceased and has

deposed that he had visited the matrimonial home of his niece Saroj

two three times after her marriage. On 13th January, 1996 he had

gone to the house of deceased Saroj on the occasion of Sakranti. At

that time, Saroj told him that her in-laws were demanding Rs.10,000/-

on account of construction of shop which was demolished earlier and

that her mother-in-law, sister-in-law used to give beatings to her. He

informed this fact to father of the deceased on 15th January, 1996 at

his residence. In cross-examination, he stated that after 1½ -2 months

of the marriage, he had gone to meet Saroj. At that time, she told that

in the neighbourhood, in the marriage of someone, colour TV and

scooter was given in dowry. Sister-in-law of the deceased also told

him "Kallo ne kaha ki meri bhabhi bahut achhi hain magar pados

mein kisi ki shadi mein colour TV aur scooter milla hai." He,

however, admitted that this fact was not stated by him to the police

when his statement was recorded on 17th February, 1996. As regards

demand of Rs.10,000/-, he could not say who demanded this amount.

26. PW10 Ved Prakash is the father of the deceased. He has also

deposed that enough dowry was given by him at the time of marriage

as per his capacity. At the time of marriage or soon thereafter, there

was no complaint from any of the accused person in regard to dowry.

However, after about 2 months of marriage, when he visited his

daughter at her matrimonial home, at that time, she told him that her

in-laws have started teasing her for insufficient dowry after marriage

in their neighbourhood had taken place in which the bride side had

given enough dowry such as colour TV, scooter etc. On the occasion

of Raksha Bandhan when his daughter visited him, at that time, she

also narrated that she was being frequently beaten up by the accused

persons. After 4-5 days he talked to accused Shri Chand in order to

know their grudge but he did not disclose any such thing. On the eve

of Sakranti, his brother-in law (Kanwar Pal) had gone to his

daughter‟s house to present customary gift. On 15th January, 1996,

Kanwar Pal came and told him that when he visited his daughter, she

was weeping bitterly and stated that her in-laws were demanding

Rs.10,000/- for constructing a shop for Mahavir and for that reason,

she was being regularly beaten up by all the accused. On 18th

January, 1996, accused Chameli, mother-in-law of his daughter came

to his house and congratulated them for becoming prospective grand

parents of a baby, however, on 20th January, 1996 at about 8:30 pm, a

boy, namely, Bittoo came and informed that condition of his daughter

was not well. As such, he along with his wife went to Tilak Nagar.

On reaching the matrimonial home, they found that there was a crowd

and police officials were also present. As soon as he got down from

the scooter, he was taken in a nearby room by accused Shri Chand

and Mahavir and was threatened that in case any wrong statement is

made before the police then he would be beaten up and would also be

involved in a false case and that he would also be hanged as his

daughter had been done to death. Thereafter, he was taken to the

room of his daughter where he saw his daughter hanging with a

ceiling fan. Next day, number of persons visited the house of accused

persons in order to see the room in which his daughter was murdered.

When they entered the room a small child picked up a paper lying

underneath a bed and gave it to his wife who passed it to him. When

he got that letter read from his son Mukesh then, it was revealed that

his daughter has alleged ill-treatment by her in-laws. He became

suspicious and gave photocopy of the paper Ex. PW5/A to the Police.

Thereafter, he lodged a complaint Ex.PW10/A with the Police. In

cross-examination, he could not say if he had stated to the SDM who

recorded his statement that he was informed by Kanwar Pal on 15 th

January, 1996 that demand of Rs.10,000/- is being made for

construction of a shop for Mahavir.

27. On being informed about the incident, on 22nd January, 1996,

PW14 Sh. K.K.Dahia, the then SDM, Punjabi Bagh recorded the

statement of Ved Prakash, Ex.PW10/B and directed registration of the

case. A perusal of the statement Ex.PW10/B which became the bed

rock of investigation reveals that it was alleged that after two months

of the marriage, his daughter informed him that the accused persons

taunted her that her father had not given anything in the marriage,

although in the neighbourhood, a marriage had taken place where the

girl‟s side had given a colour TV and scooter. No direct demand was

made from his daughter, by her in-laws but they used to taunt. Her

mother-in-law also used to beat his daughter.

28. A perusal of the aforesaid evidence led by the prosecution goes

to show that the allegations are quite vague, unspecific and uncertain.

The witnesses themselves have deposed that no demand was made

directly by any of the accused persons either from the deceased or

from them. The allegations are confined to the fact that a marriage

has taken place in the neighbourhood in which the bride had brought

colour TV and scooter and the deceased used to be taunted on that

account. Even regarding these facts, there is material improvement in

the testimony of the witness, inasmuch as, mother of the deceased

admitted in her cross-examination that she did not state to the police

that her daughter informed her regarding insufficient dowry or taunts

and beatings given by the accused persons when she came to her

house on the occasion of Bhaiya Dooj and Raksha Bandhan. As far as

Ved Prakash is concerned, he has specifically deposed that either at

the time of marriage or soon thereafter, there was no complaint from

any of the accused persons with regard to dowry. He has also deposed

that after the marriage in the neighbourhood where colour TV and

scooter was given in dowry, his daughter used to be teased by her in-

laws. Even at this juncture, there is no allegation that any demand

was made from the deceased or her parents for bringing any dowry

article. He has, however, gone on stating that his brother-in-law

Kanwar Pal had gone to the house of his daughter on the occasion of

Sakranti to give customary gifts, at that time, his daughter informed

him that her in-laws were demanding Rs.10,000/- for constructing a

shop for Mahavir. However, this part of the testimony was a clear

improvement as he was confronted with his statement Ex.PW10/DA

where this fact was not mentioned. It is pertinent to note that even

when his statement was recorded by the SDM, at that time also, it was

not disclosed by him that his brother-in-law informed him that

demand of Rs.10,000/- for construction of shop for Mahavir was

made by the accused persons.

29. From the evidence on record, it is clear that there was no

evidence of demand of dowry or subjecting Saroj to cruelty for or in

connection with demand of dowry other than general and vague

statements of the parents and maternal uncle of deceased.

30. Moreover, to bring home the guilt of the accused within the

four corners of section 304B IPC, it is incumbent upon the

prosecution to prove that "soon before her death" deceased was

subjected to cruelty or harassment by her husband or in laws. The

expression "soon before death" has not been defined and the

legislation has not specified any time which would be the period prior

to death that would attract the provisions of section 304B IPC. In

Sunil Bansal v. State of Delhi, 2007(7) AD Delhi 780, it was

observed as under:

"Though there is no thumb rule as to what is meant by the expression "soon before" death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon'ble Supreme Court has held in Kaliya Perumal v. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda v. State of M.P., 2004 III AD 305:2004 (3) SCC 98 that there should not be too much of the time lag between cruelty and harassment in connection with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence."

31. It seems that PW 8 Kanwar Pal has been introduced in order to

make out a case that "soon before her death", the deceased was

harassed on account of dowry demands as according to him, on 13 th

January, 1996, he had gone to the house of Saroj when she informed

him about the demand of Rs.10,000/-. It is pertinent to note that

although the unfortunate incident has taken place on 20 th January,

1996, but statement of this witness was recorded by the Police under

section 161 Cr. P.C. for the first time on 7th February, 1996.

32. There are catena of decisions that if the statement of the

witness is not recorded on the date of incident or within reasonable

time then, it has to be viewed with caution. To cite a few Paramjit

Singh v. State of Punjab, 1997 (4) SCC 156; Jagjit Singh v. State of

Punjab, (2005) 3 SCC 689; Maruti Rama Naik v. State of

Maharashtra, (2003) 10 SCC 670; Harjinder Singh @ Bhola v.

State of Punjab, (2004) 11 SCC 253; Prem Narain and Anr. v. State

of Madhya Pradesh, (2007) 15 SCC 485.

33. It is not the case of prosecution that this witness was not

available to the Investigating Officer of the case. No explanation

whatsoever has been given by the Investigating Officer as to why the

statement of this witness was not recorded earlier. Under the

circumstances, his statement has to be viewed with caution.

Moreover, if he had disclosed about the harassment to the deceased

for demand of Rs.10,000/- for construction of a shop for Mahavir to

her father Ved Prakash on 15th January, 1996 itself, there is no reason

as to why this crucial fact was not disclosed by PW 10 Ved Prakash

in his statement Ex.PW10/B made before the SDM. Testimony of

PW7 Bimla, mother of the deceased is conspicuously silent in regard

to any such demand. Moreover, in Appasaheb and Anr. v. State of

Maharashtra, AIR 2007 SC 763 it was held by the Supreme Court

that in order to bring the case within the four corners of Section 498-

A IPC, any property or valuable security should be given or agreed to

be given, either directly or indirectly, on or before or any time after

the marriage and in connection with marriage of the said parties.

Giving or taking of property or valuable security must have some

connection with marriage, which is essential. Demand for money on

account of some stringency or meeting some urgent domestic expense

cannot be termed as demand for dowry. In Sanju v. State, 2009(164)

DLT 459 demand of Rs.50,000/- by the appellant for his business

from the father and mother of the deceased was held not to fall under

demand of dowry as defined under Section 2 of Dowry Prohibition

Act as demand is not made in relation to marriage. Besides that, there

are general, vague and inconsistent statements of interested witnesses

PW7, PW8 & PW10 being the parents and maternal uncle of the

deceased which are not sufficient to establish essential ingredients of

Section 304B IPC.

34. On the other hand, PW3 Inderjeet, PW4 Rajinder Singh and

PW9 Smt. Sapna, used to live in the neighbourhood of the deceased

and all these witnesses have deposed that they have never seen the

accused persons causing any harassment or torture to the deceased for

demand of dowry nor any dowry was ever demanded in their

presence. The accused persons had also examined DW1 Anand and

DW2 Raghuvir Singh, neighbours, both of whom have also deposed

that the deceased was kept well by the accused persons and was never

harassed on account of dowry.

35. Coming to the documentary evidence, it is the admitted case of

the parties that a suicide note Ex. PW2/B was found lying on a table

which was seized vide seizure memo Ex.PW2/A. A perusal of this

suicide note goes to show that the deceased has completely

exonerated her husband and father-in-law and has taken the

responsibility of committing suicide on her own.

36. Learned Public Prosecutor for the State, however, relied upon

three undated distinct hand written notes, two of them were recovered

from the room where the deceased Saroj @ Rekha died by hanging

and the third was tied to the left forearm of the deceased. The two

handwritten notes found from the room out of which one was lying on

the table marked as Ex.PW2/B and recovered in the presence of Dalip

(PW2) and Inderjeet (PW3), neighbours of the accused persons. In

another similar hand written letter Ex.PW5/C which was found under

the bed of the deceased wherein she stated about the physical abuse

meted out to her and laments that it was because of her poor

background and the fact that she could not bring enough dowry, that

she was treated that way. Then the third hand written letter was the 3

page letter written by the deceased, marked as Ex.PW1/A, addressed

to her father which was tied to left forearm of the deceased and found

by Doctor Ashok Kumar PW1 and in this letter the deceased had

stated that by the time this letter would be read, she might be dead.

It was submitted that these letters narrate the ordeals to which

deceased was subjected to even for regular living necessities such as a

sweater where she was taunted to bring her clothes from her parents,

she was not fed properly and often slept without food at night. If all

these letters are read, it creates doubt over the recovery of suicide

note found on the table. It was further submitted that the other two

similar undated hand written letters of the deceased highlight the

plight of the deceased and showed the circumstances in which she

was staying at her matrimonial place and particular attention was

brought to third line from the top where she writes about her mother-

in-law "jab se aayi hai, yahi kapde dali hai, apne ghar se kuch nahi

layi" and at the top five lines where she writes about her husband that

he does not even talk about her food and eats himself without even

asking her and she remained hungry for several nights and finally the

deceased writes about the slaps given to her which she attributes

mainly because of her poor background and also because she could

not get sufficient dowry. It was submitted that all these show the

harassment and constant mental cruelty in the form of taunts and

instances of physical cruelty in the form of slaps.

37. Learned senior counsel for the appellant, on the other hand,

submitted that these letters do not reflect any demand of dowry or

harassment to the deceased on that account.

38. A perusal of the letter Ex.PW5/C goes to show that it is written

that:-

"Papaji aap hi bataiye ki meri galti kya hai. Mai peechhe baith kar kapde dho rahi thi. Mammi ne darwaaza khatkhataya tha. Mujhe aawaz nahi aayi kyonki peechhe tape wagairah chal rahi thi. Baad mei aawaz aane

par maine jab darwaza khola, to mammi ne bina soche samjhe 2-3 haath rakh diye, baad mei chappal bhi nikaal li tatha bura bhala mere ghar waalo ko bhi bola. Akhir mein kab tak bardasht karein. Mere din baar ke bolne par hi beizzati ho gai. Kya hamari koi izzat nahi hai jo har koi mere upar haath uthate hain. Mai garib ghar ki hu na. Yadi dahej mei achha laati to shayad yeh sab na hota."

39. In the other letter, she has referred to the comments made on

her clothes. That, at best, can be termed to be discord and difference

in domestic life which is quite common in the society to which the

victim belonged but the same fall short of proving that the deceased

has been subjected to cruelty or harassment „for or in connection with

the demand of dowry‟.

40. In these letters, there is no reference of any demand of dowry

by any of the appellants. Had there been any demand of dowry or

demand of Rs.10,000/- for reconstruction of shop of Mahavir,

deceased would have certainly commented upon the same in the

aforesaid exhibits. This creates a serious doubt about the version of

PW7, PW8 and PW10 regarding harassment of deceased by her

husband and in-laws on account of demand of dowry.

41. With this evidence on record, it is clear that:-

(i) There is no evidence of demand of dowry or subjecting

Saroj to cruelty for or in connection with dowry other

than general, vague and inconsistent statement of

interested witnesses, PW 7, 8 & 10, being the parents

and maternal uncle of the deceased.

(ii) Not a single neighbour has come forward to speak about

subjecting Saroj to cruelty by the appellants in relation to

demand of dowry.

(iii) According to the parents of the deceased , there was no

demand of dowry either at the time of marriage or even

thereafter. There was no specific demand made by any

of the appellants either from the deceased or from them.

(iv) The suicide note completely exonerates the husband and

father-in-law and does not inculpate mother-in-law and

sister-in-law.

(v) The letters Ex.PW1/A, Ex.5/B and Ex.5/C written by the

deceased make mention of normal wear and tear of life

but no mention was made about the demand of dowry or

harassment meted out to her in connection with dowry.

(vi) PW7, PW8 & PW10, on account of Saroj having

committed suicide, obviously were angry with the

appellant and had every reason to involve them for

offence under Section 304B IPC.

(vii) It is very unfortunate that within eight months of the

marriage, Saroj had taken the extreme step of

committing suicide but what exactly prompted her to

take this extreme step has not surfaced.

42. Presumption under Section 113B of the Evidence Act can be

drawn only when prosecution first establishes the essential

ingredients of Section 304B IPC. Since the evidence falls short of

proving the essential ingredients to Section 304B IPC, question of

drawing presumption against the accused under Section 113B does

not arise. The learned Trial Court fell in error in concluding that the

appellants were guilty of offence when the crucial and necessary

ingredient that deceased Saroj was subjected to cruelty and

harassment soon before her death was not proved looking to the

evidence and circumstances cumulatively. Therefore, the findings of

learned Trial Court cannot be sustained.

43. The charge sheet was submitted under Sections 498-A/304-B

IPC, however, no separate charge for an offence under Section 498-A

IPC was framed. It is, however, a settled proposition of law that mere

omission or defect in framing of charge would not disentitle the Court

from convicting the accused for the offence which has been found to

be proved on the basis of the evidence on record. In such

circumstances, the matter would fall within the purview of Section

221(1) and (2) of the Code of Criminal Procedure, 1973. In M.

Srinivasulu (supra), it was held by Supreme Court that a person

charged and acquitted u/s 304B IPC can be convicted u/s 498A IPC

without that charge being there, if such a case is made out. That

being so, it is to be seen as to whether offence under Section 498-A

IPC is made out of not. Section 498-A reads as under:-

"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

44. A bare reading of Section 498-A goes to show that the term

cruelty which has been made punishable under the Section, has been

defined in the explanation appended to the said section. Therefore,

the consequences of cruelty, which are either likely to drive the

woman to commit suicide or to cause grave injury/or danger to life,

limb or health, whether mental or physical, of the woman or

harassment of the woman where such harassment is with a view to

coerce her or any person related to her to meet any unlawful demand

for any property or valuable security or is on account of failure by her

or any person related to her to meet such demand, are required to be

established in order to prove an offence under Section 498 IPC.

45. Turning to the case at hand, as seen above, there is absolutely

no allegation that either any demand of dowry was made from the

deceased or from her parents. The allegations are confined to the

taunts given to the deceased by comparing the dowry articles brought

by the bride in the neighbourhood. It was also alleged that a sum of

Rs.10,000/- was demanded for re-construction of shop of appellant-

Mahavir which in view of the discussion made above does not come

within the purview of demand in relation to marriage.

46. Even as per the letters, the beatings given to her are attributed

to her mother-in-law alone. As stated above, in the suicide note, she

has completely exonerated her husband and father-in-law whereas no

allegations have been made against the mother-in-law and sister-in-

law. Even the letters do not make a mention about any ill treatment to

the deceased by her sister-in-law who undisputedly was married much

prior to the marriage of the deceased with Mahavir and was living in

her matrimonial home. As such, at the most, the allegations may

tantamount to causing physical or mental cruelty upon the deceased

under Part (b) of the Section by the mother-in-law, therefore, the

allegations at the most are confined to Chameli Devi, mother-in-law

of the deceased. However, as per the nominal roll, she remained in

custody for a period of 3 years, 7 months and 15 days. The

punishment prescribed under Section 498A IPC extends to three years

only. Under the circumstances, even if it is held that Chameli Devi is

guilty of offence under Section 498A IPC then she is entitled to be

released on the period already undergone.

47. Keeping in view the fact that Saroj has committed suicide

within seven years of marriage, it may also be seen whether any case

u/s 306 IPC is made out. Section 306 IPC provides that if any person

commits suicide, whoever abets the commission of such suicide, shall

be punished with imprisonment which may extend to ten years and

with fine.

48. Section 107 IPC defines "abetment" which reads as under :

"S.107. A person abets the doing of a thing, who

First-- Instigates any person to do that thing; or

Secondly-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly-- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation.1- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation.2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

49. This section has to be read with section 113A of Evidence Act,

1872 which reads as under:-

"When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.- For the purposes of this section, "cruelty" shall have

the same meaning as in section 498A of the Indian Penal Code (45 of 1860)".

50. A perusal of this section goes to show that any person, who

abets commission of suicide, is liable to be punished under section

306 IPC. Section 107 IPC lays down ingredients of abetment, which

includes instigating any person to do a thing or engaging with one or

more persons in any conspiracy for the doing of a thing, if an act or

illegal omission takes place in pursuance of that conspiracy and in

order to the doing of that thing, or intentional aid by any act or illegal

omission to the doing of that thing. As per definition of abetment as

laid down u/s 107 IPC, there has to be instigation to commit suicide

on behalf of the accused persons.

51. In Sanju @ Sanjay Singh Sengar v. State of M.P., (2002)

Cri.LJ. 2796, it was observed:

"Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out."

52. In Kishori Lal v. State of M.P., (2007) 10 SCC 797, it was

observed :-

"Mere fact that the husband treated the deceased wife with cruelty is not enough to bring the case within the parameter of Section 306 IPC."

53. In the absence of direct evidence, it is to be seen whether

presumption u/s 113 A of Indian Evidence Act can be drawn or not.

54. Unlike section 113B of the Indian Evidence Act, a statutory

presumption does not arise by operation of law merely on proof of the

circumstances enumerated in section 113A of the Indian Evidence

Act. Under section 113A of the Indian Evidence Act the prosecution

has to first establish that the woman concerned committed suicide

within a period of seven years from the date of her marriage and that

her husband and in-laws (in this case) had subjected her to cruelty.

Even if these facts are established, the Court is not bound to presume

that the suicide had been abetted by her husband. Section 113A gives

a discretion to the Court to raise such a presumption, having regard to

all the other circumstances of the case, which means that where the

allegation is of cruelty it must consider the nature of cruelty to which

the woman was subjected, having regard to the meaning of word

cruelty in section 498A IPC. The mere fact that a woman committed

suicide within seven years of her marriage and that she had been

subjected to cruelty by her husband and in-laws does not

automatically give rise to the presumption that the suicide had been

abetted by her husband and in-laws. The Court is required to look into

all other circumstances of the case. One of the circumstances which

has to be considered by the Court is whether the alleged cruelty was

of such nature as was likely to drive the woman to commit suicide or

to cause grave injury or danger to life, limb or health of the woman.

The law has been succinctly stated in Ramesh Kumar v. State of

Chhattisgarh, (2001) 9 SCC 618 wherein Hon'ble Supreme Court

observed :-

"This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the

suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in section 113A is defined in section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it".

30. In the State of West Bengal v. Orilal Jaiswal and anr., (1994)

1 SCC 73, Hon'ble Apex Court observed :-

"We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113A of the Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter".

55. In Gangula Mohan Reddy v. State of Andhra Pradesh, (2010)

1 SCC 750, Hon‟ble Supreme Court, observed as under:-

"In State of West Bengal v. Orilal Jaiswal & Ors (1994) 1 SCC 73, this Court has cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted

out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

56. In Mahendra Singh v. State of MP, 1995 SCC (Cri) 1157,

Hon‟ble Supreme Court observed that it is common knowledge that

the words uttered in a quarrel or in spur of moment or in anger cannot

be treated as constituting mens rea. In the said case, appellant said to

the deceased to "to go and die" and as a result of such utterance, the

deceased went and committed suicide, however, Hon‟ble Supreme

Court observed that no offence under Section 306 IPC read with

Section 107 IPC was made out since there was no element of mens

rea.

57. In Bhagwan Das v. Kartar Singh & Ors., (2007) 11 SCC 205,

it was held that quite often there are disputes and discord in the

matrimonial home and wife is harassed by husband or by her in-laws,

this, however, would not by itself and without something more attract

Section 306 IPC read with Section 107 IPC.

58. Substantially similar view was taken by this Court in

Shailender v. State, 169 (2010) DLT 563.

59. In the instant case, there is no averment in the statement of the

witnesses that any of the accused instigated the deceased to commit

suicide. There is no direct evidence to establish that any of the

accused either aided or instigated the deceased to commit suicide or

entered into any conspiracy to aid her in committing suicide. From a

reading of the contents of hand written letter, Ex.PW5/B, it appears

that some utterances used to be made by mother-in-law of the

deceased which was not to her liking and she used to remain disturbed

because of that. However, no evidence has come on record to suggest

that such utterances were made wilfully and intentionally in order to

instigate the deceased in taking extreme steps of ending her life.

Rather it has come on record that after Saroj conceived, family

members were very happy. In fact on 18th January, 1993, Chameli

Devi, mother-in-law of the deceased visited her parents‟ house to

congratulate them as they were going to become grand parents of a

child. In the facts of this case, prosecution has been unsuccessful in

proving that there was element of mens rea on the part of the accused,

accordingly, in our view, ingredients of evidence under Section 306

IPC r/w Section 107 IPC are not attracted. As observed in Smt. Bisno

v. State, 2011 II AD (Delhi) 501, there is always a reason behind an

act committed by a person. Committing of suicide by deceased by

hanging herself, that too within eight months of the marriage does

raise a suspicion that everything was not normal. This suspicion,

however, cannot be a substitute for the proof of dowry demand or

subjecting the deceased to harassment and cruelty, i.e., the requisite

ingredients which constitute the offence under Section 498-A, 304-B

IPC or 306 IPC.

60. Adverting to the facts of the case, although it is established that

marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and

she has committed suicide within eight months of the marriage,

however, none of the three material witnesses examined by the

prosecution proved the allegations of demand of dowry and infact the

deceased herself gave a clean chit to accused Mahavir and Shri Chand

and in the suicide note she does not level any allegation even against

her mother-in-law and sister-in-law.

61. It is a cardinal principle of criminal jurisprudence that the guilt

of the accused is to be established by the prosecution beyond the

possibility of any reasonable doubt. Even if there may be an element

of truth in the prosecution story against the accused but considered as

a whole there is invariably a long distance to travel and whole of this

distance must be covered by the prosecution by legal, reliable and

unimpeachable evidence before an accused can be convicted. Similar

view was taken in Sarwan Singh Rattan Singh v. State of Punjab

AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67;

Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy

Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.

62. In the instant case, prosecution has failed to bring home the

guilt of the accused persons beyond reasonable doubt. That being so,

they are entitled to benefit of doubt.

63. Under the circumstances, appeal is allowed. Impugned

judgment and order on sentence dated 16 th October, 1999 and 23rd

October, 1999 respectively are set aside and the appellants are

acquitted of the offence alleged against them. Their bail bonds are

cancelled and sureties are discharged.

Intimation be sent to the concerned Superintendent Jail. Trial

Court record be sent back forthwith along with copy of the judgment.

(SUNITA GUPTA) JUDGE

(KAILASH GAMBHIR) JUDGE MAY 16, 2014 rs