Todarmal (Deleted) vs State Of M.P.
2021 Latest Caselaw 9014 MP

                                        1

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR
                  (DIVISION BENCH)
                   Criminal Appeal No.674 of 2000
Todarmal (Deleted) and 2 others                             ..... Appellants
                                   Versus
State of M.P.                                             ..... Respondent
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CORAM
          Hon. Mr. Justice Ravi Malimath, Chief Justice.
          Hon. Mr. Justice Deepak Kumar Agarwal, Judge.
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Presence
        Shri Mahaveer Pathak, learned counsel for appellants.
        Shri C.P. Singh, learned Panel Lawyer for the
respondents/State.
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                                JUDGMENT

(21 December, 2021)

PER JUSTICE DEEPAK KUMAR AGARWAL

The present appeal preferred u/S. 374 Cr.P.C. assails the

judgment dated 15.09.2000 rendered in S.T. No. 206/97 by

Additional Sessions Judge Mungawali District Guna whereby the

trial Court has convicted the appellants for the offence punishable

under Sections 498-A and 304-B of I.P.C. and sentenced them to

undergo three years R.I. and fine of Rs.1000/ and life

imprisonment respectively with further direction that all the

sentences shall run concurrently.

2. Brief facts giving rise to present case are that on 24.02.1997

at about 16:45 pm, Narayandas (PW-1) informed Police Station

Chanderi District Guna that at about 02:30 pm, when he was going

to market from his home, on the way there was a "Bawadi" (water

reservoir), he saw dead body of a lady lying in the "Bawadi". On

his information, Merg No.8/97 under Section 174 CrPC was

registered. During merg enquiry, dead body was taken out from

the Bawadi and Naksha Panchayatnama (Ex.P-7) was prepared.

Silver and gold ornaments and slippers worn by the deceased were

seized vide Ex.P-8. Water of Bawadi was collected and spot map

was prepared and dead body of deceased was sent for postmortem.

The dead body was identified as of one Ashakiran alias Gudiya,

wife of appellant-Akhilesh Purohit. During Merg enquiry,

statements of father of deceased Bhaiyalal (PW-8) and Satish

Kumar @ Chinte Maharaj (PW-9), who acted as mediator in

marriage solemnized between deceased Ashakiran and appellant-

Akhlesh, were recorded. They stated that father of deceased

Ashakiran gave articles as per his capacity in the marriage, despite

this, her in-laws demanded motorcycle and refrigerator. Since their

demand did not fulfill, in-laws of the deceased used to harass her,

due to which she died in unnatural circumstances. After Merg

inquiry, offence under Section 304-B of IPC bearing Crime No.

73/97 was registered against appellants. After recording of

statements of witnesses and completion of investigation, charge-

sheet under Sections 304-B of IPC was filed against the appellants

before the Court of competent criminal jurisdiction. After

committing the case to the Court of Session, the charges were

framed against the appellant for the offence punishable u/S. 304-B

and 498-A of IPC.

3. Appellants abjured their guilt and pleaded complete

innocence. In their defence the appellants examined Sashischan

Jain "Kumresh" (DW-1), Daya Sagar Jain (DW-2) and Virendra

Singh (DW-3).

4. The prosecution in order to prove its case has examined as

many as ten witnesses i.e. Narayandas (PW-1), Mahesh Kumar

Awasthi (PW-2), Chan Khan (PW-3), Vinod Kumar (PW-4),

Shaym Kumar Sharma (PW-5), Chandan Singh Parihar (PW-6),

Dr. R.P.Sharma (PW-7), Bhaiylal (PW-8), Satish Tiwari @ Chinte

Maharaj (PW-9) and C.L. Bamoriya (PW-10).

5. Learned trial Judge after framing certain issues and

marshalling the evidence available on record, rendered the

impugned judgment by which appellants have been convicted and

sentenced as mentioned in Para 1 of this judgment.

6. Since appellant-Todarmal died during pendency of this

appeal, present appeal has been abated against him.

7. Challenging the impugned judgment of conviction and

sentence, it is submitted by learned counsel for the appellants that

the learned trial Court has committed grave error in passing the

impugned judgment of conviction and sentence, as there was no

complaint regarding demand of dowry before the death of the

deceased, therefore, no offence under Section 304-B of IPC is

made out against the appellants. There are material contradictions

and omissions in the evidence of father and brother of deceased

regarding demand of dowry. It is further submitted that Shyam

Kumar Sharma (PW-5) and Bhaiyalal (PW-8) are relatives of the

deceased. There are contradictions and omissions in the statements

of these witnesses. The cause of death of the deceased is not

homicidal in nature. Thus, it is prayed that the impugned judgment

of conviction and sentence passed by learned trial Court be set-

aside and appellants-accused be acquitted from the alleged

offence.

8. On the other hand, learned counsel for State supports the

impugned judgment of conviction and sentence passed against the

appellants by submitting that there is no infirmity in the impugned

judgment of conviction and sentence. Hence, prayed for dismissal

of this appeal.

9. Heard learned counsel for the parties at length and perused

the record of trial Court.

10. It is not disputed that Narayandas (PW-1) on the date of

incident i.e. 24.02.1997 while going to market saw dead body of a

lady lying in a "Bawadi" (water reservoir) and gave information to

Police Station Chanderi. On his information, Merg No. 8/97 under

Section 174 CrPC was registered. Merg was inquired by SDOP

C.L. Banmoria (PW-10), in which statements of witnesses were

recorded. Afterwards, an FIR vide Ex.P-10 against the appellants

was registered and bones of the deceased were sent for diatom

test. Report of which has been filed as Ex.P-12.

11. Bhaiyalal (PW-8), father of deceased, deposed that deceased

Ashakiran alias Gudiya was his daughter whose marriage was

solemnized with appellant Akhilesh in the year 1995. In the

marriage, he had given Rs. 60,000/- in cash, cooler, almirah, sofa-

set, bed and other articles to the appellants. Apart from this,

Rs.50,000/- had also been given in Teeka ceremony. After 8-10

days of the marriage when deceased came to their house, she did

not complain against appellants.

11.1 He further testified that after six months of the marriage,

deceased alongwith her father-in-law came to Ashoknagar. Father-

in-law of the deceased said that she (deceased) is ill and they have

got her treated. Deceased Ashakiran told this witness that

appellants used to say that according to their expectations, they

did not get dowry. She also complained that her mother-in-law

used to commit Maarpeet with her and locked her in a room and

did not give any food to her. She further stated that her in-laws

required a refrigerator and motorcycle. For three years, deceased

stayed at her paternal home for treatment. During this period,

nobody from her matrimonial home came to see her.

11.2 Bhaiyalal (PW-8) further stated that he told Todarmal

father-in-law of the deceased that deceased complained that due to

non-fulfillment of dowry demand, she was subjected to cruelty,

which Todarmal denied. When he confronted father-in-law in front

of the deceased, he admitted that this type of small disputes are

used to happen in the home. He also told father-in-law of the

deceased that if you are not comfortable with the deceased, leave

her at her paternal home. After one month, when appellant-

Akhilesh came, Bhaiyalal also complained him about the cruelty

inflicted by his parents. Appellant-Akhilesh told him that he is an

obedient son and can not stop his parents. Thereafter, this witness

further told him that if you are not able to live with your wife

happily, you ought not to have married. On listening this, he went

out without taking deceased Ashakiran. After two months,

mediator Satish, appellant Akhilesh and his uncle came to his

house and assuring him that now they will keep the deceased well

and asked him to send the deceased with them. On their assurance,

he sent her daughter with the accused. After 7-8 months, deceased

came alongwith her father-in-law Todarmal to Ashoknagar. She

was ill. When Bhaiyalal saw his daughter, he felt that appellants

might kill his daughter and hence he advised her daughter not to

go her in-laws house, but she went away. But when we go through

his statement recorded during investigation by Police vide Ex.D-1

facts "After one month..............she went away" find no place. If it

actually would have happened, he ought to have mentioned the

same in his statement Ex.D.-1.

11.3 In cross-examination, Bhaiyalal (PW-8) stated that he did

not lodge any report against appellants regarding demand of

motorcycle and refrigerator. He got treated his daughter by a

private Doctor at Ashoknagar. He had no knowledge that deceased

was having ulcer in her stomach. He never complained regarding

demand of dowry to anyone against appellants soon before death

because appellants assured him that her daughter will not be ill-

treated further.

11.4 Bhaiyalal (PW-8) revealed that Akhilesh and middleman

Satish came to bring his daughter, that's why he had sent his

daughter. This fact has been stated by him to the police, but if the

same is not mentioned in his police statement, he can not give any

reason. His wife namely Sooraj Bai died in Ashoknagar hospital

due to consumption of poisonous substance. He had informed

about the said incident to Police Ashoknagar. He can not say as to

why her wife consumed poisonous substance. He denied that

appellants never demanded dowry from his daughter and on non-

fulfillment of the same, they never inflicted cruelty on her. He

denied that his daughter committed suicide, hence he is having

grudge against the appellants.

12. On going through examination-in-chief and cross-

examination of Bhaiyalal (PW-8), this Court is of the opinion that

in his evidence there are major contradictions and omissions.

Besides this, he himself has not seen any harassment meted out to

the deceased by the appellants. He did not depose anything

regarding cruelty inflicted by the appellants upon the deceased

soon before her death.

13. As per brother of deceased Shyam Kumar Sharma (PW-05),

four days after the marriage, his sister Ashakiran came to his

house and complained to his parents that appellants are

demanding motorcycle and refrigerator. Her in-laws told her to

return her matrimonial home only after fulfillment of their

demand. When after ten days father-in-law of the deceased came

to Ashoknagar to bring his daughter, he told that his son is

desirous to get motorcycle and refrigerator. Father of the deceased

told in-laws of the deceased that presently, he is not in capacity to

buy a motorcycle and refrigerator. Thereafter, Todarmal (father-in-

law of deceased) took his daughter alongwith him.

13.1 In January, 1996 when Shyam Kumar Sharma (PW-05) went

to appellants' house, appellants asked him not to come here until

fulfillment of their demand. As and when deceased used to come

to her paternal home, she used to complain about cruelty

committed by the appellants. Before two months of death of the

deceased, she stated about the cruel behavior of her in-laws.

13.2 On receiving information of death of his sister, Shyam

Kumar Sharma (PW-05) and his father Bhaiyalal went to the

house of appellants, but nobody was there. Appellant Todarmal

had gone to Indore. Appellants Triveni Bai and Akhilesh were not

present in the hospital. But Satish Tiwari @ Chinte Maharaj (PW-

9) has admitted in his cross-examination Para 21 that before his

arrival at the hospital, appellant-Triveni Bai reached there and

thereafter appellant Akhilesh came to the hospital.

13.3 During cross-examination, Shyam Kumar Sharma (PW-05)

stated that as regards ill-treatment of his sister by the appellants,

he informed members of the society and also called a Panchayat,

in which relatives of the appellants and middleman Satish Tiwari

were also present. He got his sister treated at Ashoknagar by Dr.

Mahavir. Before death of the deceased, he did not lodge any

complaint to the police regarding cruelty by the appellants. Shyam

Kumar Sharma (PW-05) denied that his mother committed suicide

by consuming poisonous substance. Afterwards, he stated that he

has no knowledge that his mother died on 24.04.1993 by

consuming poisonous substance. Report in that regard was lodged

before police. He also denied that his brother Ramkumar

committed suicide on 02.04.1991 but he admitted that report

regarding death of his brother was lodged in police station. He

cannot say that there is tendency of committing suicide in his

family. He denied that his sister was of irritating behavior and was

in depression. He also denied that appellants did not demand

dowry and inflict cruelty on deceased. He denied that they are

falsely implicating the appellants.

14. On going through the evidence of this witness, who is

brother of deceased, this Court finds that his evidence is contrary

to the evidence of his father Bhaiyalal (PW-8) on material points.

He made omnibus statement against appellants regarding demand

of motorcycle and refrigerator. He has not deposed anything

regarding cruelty on account of demand of dowry by the

appellants with the deceased soon before her death. This witness

being relative of the deceased can be termed as an interested

witness and his evidence cannot be relied upon.

15. As per Satish Tiwari @ Chinte Maharaj (PW-9), appellants

are his neighbour and he is a distinct relative of father of deceased

Bhaiyalal. In 1995 Todarmal (father-in-law of deceased) told him

that his son Akhilesh has attained 35 years of age, but his marriage

is not fixed yet and therefore, requested him to search a suitable

girl. After sometime, father of deceased Bhaiyalal came to

Chanderi, he enquired from him about Akhilesh. He introduced

Bhaiyalal to appellants. Bhaiyalal after talking with the appellants

satisfied and told them that he is ready and willing to marry his

daughter Ashakiram with appellant Akhilesh and thereafter

horoscopes of deceased and appellant Akhilesh were matched.

Thereafter, he alongiwth appellants visited Ashoknagar to see

daughter of Bhaiyalal Ashakiran. Marriage was solemnized

between deceased and appellant Akhilesh peacefully.

15.1 After some days of marriage appellant-Trevedi Bai (mother-

in-law of deceased) demanded a refrigerator and appellant-

Akhilesh demanded a motorcycle. One day he called Bhaiyalal

and placed the said demand of appellants before him. Bhaiyalal

agreed to give a motorcycle but subject to the condition that the

said demand shall be fulfilled on the birth of child of his daughter.

15.2 Thereafter, he got information that appellants are harassing

the deceased. Once he was passing from the house of appellants,

he saw that deceased was being beaten by appellant Triveni Bai by

pulling her Saree. When he objected, she told him not to interfere

in their personal matter. After some days, when he was going in

front of their house, he saw deceased Ashakiran cleaning the

house and on seeing him, she started crying and told him to call

her father Bhaiyalal. On his request, he called Bhaiyalal. Bhaiyalal

and his son came to the house of appellants. Appellants put their

demand of motorcycle before them and sent Ashakiran with them

with clear stipulation that they will keep Ashakiran with them

when their demand of motorcycle will be fulfilled. Thereafter,

Bhaiyalal and his son took Ashakiran to their home.

15.3 Afterwards, appellants broke their relationship with Satish

Tiwari @ Chinte Maharaj (PW-9) and stopped the conversation.

Upto six month deceased stayed at her parental home. Because of

embarrasment, appellants called their relative Keshav Purohit

from Gwalior. Keshav Purohit came to his house alongwith

Akhilesh. Akhilesh apologized with him for his previous

behaviour and requested to bring back Ashakiran. Afterwards, he

alongwith Akhilesh went to Ashoknagar where Bhaiyalal was very

angry but subsequently, he sent her daughter with appellant. After

some days, appellants again started ill-treating the deceased. 2-3

days before the death of deceased-Ashakiran, at about 11:30 pm,

when he was returning to his home from his shop, he heard the

sound of abuses and assult from the house of appellant.

Afterwards, dead body of deceased was found in a Bawdi. He

reached the hospital and gave the said information to the

appellants. Later on, he informed the parents of the deceased.

15.4 During cross-examination, Satish Tiwari @ Chinte Maharaj

(PW-9) stated that he can not say which articles were given in

dowry but Rs.41,000/- was given in Teeka ceremony. He had

stated that in informed the police that appellants demanded a

refrigerator and motorcycle from the father of deceased, but if this

fact is not mentioned in his police statement, he can not give any

reason. He did not disclose in his statement Ex.D-2 that Bhaiyalal

assured appellants to give motorcycle on the birth of child of

deceased-Ashakiram. He admitted that he did not tell the police

that his wife has informed him that appellants harassed the

deceased. He himself did not lodge any report to the police. He

could not tell on which date and time appellants committed

marpeet with the deceased Ashakiram. He also did not mention in

his statement Ex.D-2 that he saw appellant-Triveni Bai beating the

deceased by catching hold of saree of deceased. He stated this fact

first time in his statement before the Court.

15.5 He at the time of recording of Ex.D-2 also informed the

police that when he objected the said Maarpeet, appellant-Triveni

Bai told him not to interfere in their personal matter, but the sid

fact did not find place in Ex.D-2. He admitted that in Ex.D-2 he

did not state that deceased was cleaing the house and by weeping,

she told him to call her father. He further stated that he informed

the police that Bhaiyalal came to Chanderi where appellants put

their demand of motorcycle before him, but again said fact did not

find mention in Ex.D-2. He admitted that he did not state in police

statement that Keshav Purohit and his son have gone with him to

Ashoknagar. He further admitted that in his police statement he

did not state that after 2-3 days of arrival of deceased to her

matrimonial home, appellants started committing marpeet with the

deceased. He informed his neighbours namley Jainarayan,

Ramanand Sen, Jaswant Singh, Ramkishan Purohit and Kumresh

about marpeet with the deceased. He is married to the sister of

Ramesh who is foofa of the deceased. He has no enimity with the

appellants. His house is situated near the house of appellants. He

denied that appellants did not commit curelty with deceased

Ashakiran. He admitted that when deceased was admitted in the

hospital, her mother-in-law reached first and after his arrival at

hospital, appellan-Akhilesh came there and Todarmal was not

there. He cannot say that on the said date, Todarmal had gone to

Indore or not.

16. Having gone through examination-in-chief of this witness

Satish Tiwari @ Chinte Maharaj (PW-9) specifically para 5 to 9,

we find that if such incident of cruelty would have occurred in

front of him, he ought to have narrated the said fact in his

statement recorded before the police, but he has not stated

anything about the aforesaid facts. He stated for the first time

about the said incident before the Court. He is a relative of the

deceased and was middleman in solemnizing marriage of deceased

with appellant-Akhilesh.

16.1 This witness gave statement before the Court that he is an

eye-witness of the cruelty inflicted by the appellants on deceased

but during recording of statement by the police he remained silent.

He made omnibus statement against appellants that due to demand

of refrigerator and motorcycle, they used to harass the deceased

Ashakiran. In such a situation, especially when he is a relative of

the deceased and middleman in the marriage, this witness cannot

be termed to be an independent witness and therefore, his

testimony cannot be relied upon.

17. Assistant Sub-Inspector Chandan Singh Parihar (PW-6)

deposed that on 24.02.1997 he was posted as Assistant Sub-

Inspector at Police Station Chanderi. On that day, Narayandas

(PW-1) gave information about dead body of a lady lying in a

Bawadi. On his information, he lodged Merg Ex.P-1. During Merg

enquiry, he reached on spot and gave notices to the witnesses and

prepared dead body panchanama vide Ex.P-7 and ornaments from

the dead body were seized Ex.P-8. Slippers worn by the deceased

were also seized vide Ex.P-5 and water of Bawadi was collected

vide Ex.P-4 and spot map was prepared. When dead body of the

deceased reached hospital, he came to know that the lady is wife

of appellant-Akhilesh Purohit and daughter-in-law of Todarmal

and Triveni.

17.1 Thereafter, he gave information to the family members of

deceased. In cross-examination, he denied that Narayandas gave

information to him at bus stand. He denied that after taking out

dead body from Bawadi, he registered Merg. He stated that he was

informed by witness Ramanand that corpse is of wife of Akhilesh.

He called appellant Akhilesh and Triveni Bai who identified the

deceased as Ashakiran. After inquiry from appellant, he called

parents of deceased. When parents of the deceased came,

appellants were also there.

18. Dr. R.P. Sharma (PW-7) testified that on 24.02.1997, Police

Constable Ramswaroop Meena brought the dead body of

Ashakiran for postmortem. Due to night, he conducted

postmortem on the very next day i.e. 25.02.1997 at about 11:00

am. On examination, he found that eyes of the deceased were

dilated. Tongue was inside. Foam was oozing out from nose. Rigor

mortis was present on hand and neck. During internal

examination, it was found that there was water in the stomach.

There was swelling in lungs and on cutting it, blood stained foam

was coming out. Cause of death is drowning. Postmortem report

is at Ex.P-9. During postmortem Dr. Mudgal and Dr. Siddharth

were also present. During cross-examination, he narrated that

during postmortem, short notes were prepared and afterwards

detailed report was prepared. After filing of report, notes were

destroyed. He denied that there was ulcer in the stomach of the

deceased.

19. After scrutinizing the evidence of this witness, this Court is

of the opinion that deceased Ashakiran died due to drowning.

20. As per Mahesh Kumar Awasthi (PW-2), he is neighbour of

the appellants. He has not supported the prosecution case. He

attended the marriage of Akhilesh with deceased Ashakiran.

According to him, Rs.21,000/- cash alongwith other house-hold

articles were given in the marriage to the appellants. He admitted

that deceased was in mental stress, however he did not know the

reason behind that. He specifically denied that appellants were

harassing the deceased. He also denied that since he has been won

over by the appellant, he is not supporting the story of

prosecution.

20.1 During cross examination, he admitted that the deceased

was of irritating behavior. Appellants got her treated, but her

disease could not be ascertained. Appellants were keeping the

deceased well. There was no dispute regarding dowry.

21. As per Vinod Kumar (PW-4), he also resides at Chanderi

where deceased in-laws house is situated. He has not supported

the story of prosecution. He narrated that he knows appellants.

One day when he came from Jabalpur alongwith Satish Tiwari, he

met Bhaiyalal. Later on, alongwith Akhilesh, he had gone to his

in-laws house where they stayed about 15-20 minutes. In front of

him between appellant-Akhilesh and father of deceased, there was

no conversation regarding dowry.

22. Appellants in his defense produced the evidence of his

neighbour Sachischand Jain "Kumresh" (DW-1). He deposed that

he resides in front of house of appellants. He used to go to the

house of appellants. He never heard that appellants used to

commit Maarpeet with the deceased. As per his evidence,

behaviour of appellants towards deceased was good. His evidence

could not be cross-examined by the prosecution.

23. As per Daya Sagar Jain (DW-2), he knows the appellants.

He used to go to their house. Father-in-law of the deceased used to

work as Muneem. Deceased never complained regarding behavior

of appellants towards her. He is residing near the house of

appellants.

23.1 State cross-examined this witness. In his cross-examination

he stated that he used to visit the house of appellants twice a week.

He also went in the marriage of the deceased. He did not enquire

about the cause of death of the deceased. He denied that due to his

relationship with appellants, he is deposing in their favour.

24. As per Virendra Singh (DW-3), Todarmal was Muneem in

his Bidi factory. On 21.02.1997, he had sent Todarmal to Indore.

After 4-5 days Todarmal returned. He had gone after taking

expenses from the cashier. In this regard he gave certificate to

Todarmal as Ex.D-3.

24.1 During cross-examination he told that on the request of

Todarmal he gave said certificate. He can not say that on

24.02.1997, Todarmal returned to Chanderi or not. Police did not

enquire about Todarmal from him.

25. The Apex Court in the case of Manohar Lal Vs. State of

Haryana (2014) 9 SCC 645 has held thus:-

"17. Section 304B IPC relates to dowry death and reads as follows: "304B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

18. For the purpose of the said Section, a presumption can be raised only on proof of the following essentials:

(a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.

(b) Such death took place within seven years of her marriage.

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

(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and

(e) Such cruelty or harassment was soon before her death. In this connection, we may refer decision of this Court in Kaliaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828.

19. In Sunil Bajaj vs. State of M.P., (2001) 9 SCC 417, this Court held:

"5. We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied:

(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.

6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to 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 abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned

counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied."

20. The expression "soon before her death" used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal & Others vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80,which reads as under:

"8. Section 304-B IPC which deals with dowry death, 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 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 Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her marriage.

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B 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 (45 of 1860)." The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B 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 of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304- B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.

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

(4) Such cruelty or harassment was soon before her death." Similar observation was made by this Court in Balwant Singh and Another vs. State of Punjab (2004) 7 SCC 724. In the said case this Court held:

"10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim."

21. In the present case, from the statement of PW.1 it appears that the death took place within seven years of marriage. Admittedly, death of the deceased was due to burning i.e. not in normal circumstances. We have to see now whether the remaining two ingredients are satisfied looking into the evidence on record.

22. The statement of the complainant PW.1 is general and not specific. No specific incidence has been indicated suggesting the cruelty or harassment made by the accused-Manohar Lal. Her statement is not reliable and not trustworthy. Though the

allegation of demand of dowry was made none of the witnesses including PW.1 stated that the deceased was harassed "soon before her death" for or in connection with demand of dowry. The accused appellant was charge-sheeted under Sections 498- A and 304-B IPC but the Trial Court has not convicted the accused under Section 498-A. In this background, we are of the opinion that the prosecution has miserably failed to prove that the accused harassed the deceased soon before her death for or in connection with a demand of dowry.

23. For the reasons aforesaid, the judgment passed by the Trial Court dated 26th August, 1994 as upheld by the High Court by impugned judgment dated 26th March, 2007, cannot be upheld. They are accordingly set aside. The accused-Manohar Lal is acquitted from the charge under Section 304B IPC. The appeal is allowed. Bail Bonds, if any, stand discharged."

26. The trial Court has relied on the presumption available

under Section 113-B of the Evidence Act, 1872 to conclude that

Ashakiran's death was a dowry death. However, this presumption

cannot be stretched to implicate appellants in demanding

additional dowry from the father of deceased and harassing her

and treating her with such cruelty that she had to resort to taking

her life. As mentioned above, there is a possibility that members

of the family having varying roles, active and passive. Depending

on the nature and extent of involvement, a person may be

punished for an offence under Section 498-A or Section 304- B or

Section 306 of the IPC or Section 4 of the Dowry Prohibition Act,

1961. A dowry death will not ipso facto suck the husband with all

his relatives into the net of Section 304- B of the IPC.

27. In view of the aforesaid, we are of the opinion that evidence

produced by the prosecution are contradictory to each other.

Witnesses have improved their version before the Court. Other

independent witnesses have not supported the story of

prosecution. Besides this, prosecution utterly failed to prove

cruelty inflicted by the appellants soon before death of the

deceased.

28. Therefore, for the said reasons the appeal is allowed. The

judgment dated 15.09.2000, passed by the Court of Additional

Sessions Judge, Mungawali, District Guna (M.P.) in Sessions Trial

No.206/1997 in convicting the accused-appellants for the offences

punishable under Sections 498-A and 304-B of IPC is set aside.

The accused-appellants are acquitted of all the charges levelled

against them. Since the accused-appellants are on bail, their bail

bonds are cancelled and the sureties are discharged.

                     (RAVI MALIMATH)              (DEEPAK KUMAR AGARWAL)
                       CHIEF JUSTICE                      JUDGE
      ojha




YOGENDRA OJHA
2021.12.21
17:55:28 +05'30'