Shaik Ayyub Abdul Rahman vs The State Of A.P., Rep. By Its P.P.,
2022 Latest Caselaw 5655 Tel

                                       1
                                                                          Dr.GRR, J
                                                                     CRLA_223_2013
             THE HON'BLE DR. JUSTICE G. RADHA RANI


                   CRIMINAL APPEAL NO.223 OF 2013


JUDGMENT:

1. This Criminal Appeal is filed by the appellant-accused No.1 aggrieved by

the judgment dated 16.01.2013 in S.C.No.277 of 2012 on the file of the

1st Additional Sessions Judge, Adilabad convicting him for the offence under

Section 304-B of IPC and sentencing to rigorous imprisonment for a period of

ten years.

2. The case of the prosecution in brief was that the appellant/A1 was a

native of Beltharoda and he married one Parveen Begum during the year 2007

and had two children. Subsequently, Parveen Begum deserted him. A2, who

was a distant relative of the complainant, arranged the marriage of the daughter

of the complainant with A1. The complainant agreed to pay one tula of gold,

Rs.30,000/- and household articles as dowry. The marriage of the daughter of

the complainant was solemnised with A1 at Dharmabad eight (08) months prior

to her death. After marriage, the deceased stayed with A1 and his parents and

sister at Beltharoda for two (02) months. Thereafter, A1 and the deceased

shifted to Asta village, as he got work as Imam. A1 and A2 started harassing

the deceased physically and mentally for getting additional dowry of

Rs.10,000/-, 1/2 tula gold and other household articles additionally. The

Dr.GRR, J CRLA_223_2013 complainant (father of the deceased) visited Asta to pacify the matter, but A1

and A2 picked up quarrel and demanded for additional dowry. Vexed with the

harassment of A1, the deceased left Asta and went to her parents' house. The

deceased informed about the harassment caused to her by A1 and A2 when she

stayed with her parents for about 20 days. Then, A1 went and convinced the

parents of the deceased and promised that he would not repeat the harassment

and requested to send the deceased for family life. On his assurance, the

complainant sent the deceased along with A1. About ten (10) days prior to the

date of offence, A2 called on the complainant on his mobile and warned to pay

additional dowry or else serious consequences might take place. On 23.05.2012,

one Farooq, the neighbour of A1 and the deceased informed the complainant

about the death of the deceased. The complainant along with his family

members came to Asta and found his daughter dead. On observation of the

dead body, they found injuries on neck. As such, the complainant lodged a

report before PS, Mudhole on 24.05.2012 at 9:00AM.

3. Basing on the said report, the Assistant Sub-Inspector of PS, Mudhole

registered a case in Crime No.55 of 2012 under Sections 302, 304-B IPC and

Sections 3 and 4 of Dowry Prohibition Act. The Sub-Divisional Police Officer

(SDPO) conducted investigation of the case. He gave a requisition to Executive

Magistrate/Tahsildar to visit the mortuary to conduct inquest. He got

photographed the dead body through a photographer. He secured the presence

Dr.GRR, J CRLA_223_2013 of witnesses and recorded their statements. The inquest was conducted by

Tahsildar, Mudhole in the presence of witnesses. Later, the body was shifted

for autopsy to Government Area Hospital, Bhainsa. The Medical Officer, who

conducted the post mortem examination, gave a report stating that the cause of

death of the deceased was due to 'throttling'. The Sub-Divisional Police

Officer conducted scene of offence panchanama in the presence of mediators.

On 25.05.2012 at 1700hrs, one Gopu Laxman produced A1 before SDPO. On

interrogation, the accused admitted his guilt. The SDPO affected the arrest of

the accused and produced him before the court for judicial custody. He

recorded the statement of Gopu Laxman. On 18.06.2012 at 1200hrs, A2 came

to Sub-Divisional Office, Bhainsa along with her husband and surrendered

before SDPO. On interrogation, she voluntarily admitted her guilt. The SDPO

affected her arrest and produced before the court for judicial custody. Though,

the case was initially registered against A1 to A4, A3 and A4 being the parents

of the Accused No.1, the SDPO after investigation came to know that the

involvement of A3 and A4 was not made out as such, deleted their names from

the charge sheet.

4. The SDPO, Bhainsa filed charge sheet against A1 and A2 alone for the

offences under Sections 302, 304-B read with Section 109 IPC and Sections 3

and 4 of Dowry Prohibition Act.

Dr.GRR, J CRLA_223_2013

5. The case was taken cognizance by the Judicial Magistrate of First Class,

Bhainsa and committed the matter to the court of the Principal District and

Sessions Judge, Adilabad vide PRC 20 of 2012. The Principal District and

Sessions Judge, Adilabad made over the case to the court of I Additional

District and Sessions Judge, Adilabad, after numbering the same as SC.No.227

of 2012. Charges were framed against A1 for the offences under Sections 302,

304-B of IPC and Sections 3 and 4 of Dowry Prohibition Act and charges were

framed against A2 for the offences under Sections 302 and 304-B read with

Section 109 IPC and Sections 3 and 4 of Dowry Prohibition Act.

6. The Prosecution got examined PWs 1 to 16 and got marked Exs. P1 to

P12. No defense evidence was adduced by A1 and A2.

7. On hearing the learned Additional Public Prosecutor and the learned

defense counsel and on considering the oral and documentary evidence on

record, the 1st Additional Sessions Judge, Adilabad found A2 not guilty for the

offences under Sections 302, 304-B read with Section 109 IPC and under

Sections 3 and 4 of Dowry Prohibition Act and acquitted her on all the counts.

8. The learned 1st Additional Sessions Judge, Adilabad found the accused

No.1 not guilty for the offences under Section 302 IPC and Sections 3 and 4 of

Dowry Prohibition Act and acquitted him from the said charges. However, he

found A1 guilty for the offence under Section 304-B IPC and convicted him to

rigorous imprisonment for a period of ten years.

Dr.GRR, J CRLA_223_2013

9. Aggrieved by the said conviction and sentence, A1 preferred this appeal

contending that the judgment rendered by the trial court was contrary to the

facts of the case, material on record and principles of criminal jurisprudence; the

evidence of PWs 1 to 3 was vague, hearsay and improvised and the same was

not in corroboration with the evidence of the independent witness PW5; the

witnesses PWs 4, 6 and 7 who were neighbours and independent witnesses

turned hostile and not supported the case of the prosecution. The prosecution

failed to prove that the cruelty or harassment was for, or in connection with the

demand of dowry within the meaning of Section 113-B of Indian Evidence Act.

The panch witnesses for inquest PWs 10 and 11 had not supported the case of

the prosecution. Thus, there was no corroboration with regard to the cause of

death of the deceased to the evidence of PW15, the doctor who conducted the

PME. The evidence on record would not show the definite cause of death of the

deceased. The prosecution through the evidence of PWs 1 to 3 had not put forth

clinching and convincing evidence on record about the proximate and live link

between the effect of the alleged cruelty based on the alleged dowry demand

and the concerned death. The prosecution failed to establish the ingredients of

Section 304-B of IPC i.e., the cruelty or harassment of women was soon before

her death and prayed to set aside the conviction and sentence imposed against

the appellant/accused No.1.

Dr.GRR, J CRLA_223_2013

10. Heard the learned counsel for the appellant and the learned Assistant

Public Prosecutor for the respondent State.

11. The learned counsel for the appellant submitted that the appellant was in

jail since 23.02.2022, as the suspension of sentence was revoked and he was

remanded to judicial custody since then and contended that there were several

contradictions in the evidence of witnesses, the cause of death of the deceased

was due to throttling as per the evidence of the doctor, who conducted the PME,

examined as PW15, but the witnesses PWs 5,6,7 and 8 stated the cause of death

of the deceased was due to hanging. There were contradictions in the evidence

of PWs 1 to 3 and PW5 with regard to dowry given to A1 and additional dowry

demand made. PW5 was none other than the junior paternal uncle of the

complainant, PW1. The complainant initially filed a case including the parents

and sister of A1, but Police deleted their names from the charge sheet. The

complainant and his family members intended to secure conviction against A1

in one way or other. The entire evidence was interested, the prosecution failed

to establish that the deceased was subjected to harassment soon before her death.

At the most, the prosecution established its case under Section 498A IPC and

relied upon various judgments of the Hon'ble Apex Court.

12. The learned Assistant Public Prosecutor on the other hand supported the

judgment of the trial court and contended that only after thorough appreciation

of evidence on record, the trial court found the accused guilty for the offence

Dr.GRR, J CRLA_223_2013 under Section 304-B IPC and therefore no interference was required in the said

judgment and prayed to dismiss the appeal.

13. Now, the point for consideration is: Whether the conviction and sentence

of the appellant/A1 for the offence under Section 304-B IPC by the

1st Additional Sessions Judge, Adilabad is in accordance with law or needs any

interference by this court.

14. On a perusal of the evidence of the witnesses, PW1 is the complainant

and father of the deceased, who lodged the complaint marked as Ex.P1, PW2 is

the mother of the deceased, PW3 is the brother of the deceased, PW4 is the

neighbour of the deceased who informed the complainant over phone about the

death of the deceased on 23.05.2012 in the evening at 6:00PM, PW5 is the

junior paternal uncle of PW1, who acted as mediator for the marriage and

spoke about the payment of dowry and demand of additional dowry, PWs 6 and

7 are the neighbours at the house of the deceased and A1, at Asta, PW8 is the

student of the A1, who went to the house of the deceased on instructions of A1

and found the body of the deceased, PW9 is the photographer who took the

photos of the dead body at the scene of offence, PWs 10 and 11 are the panch

witness for the inquest panchanama, PW12 is the panch witness for the crime

detail form and rough sketch, PW13 is the ASI who registered the FIR, PW14 is

the Tahsildar, Mudhole who conducted the inquest over the body of the

deceased, PW15 is the doctor who conducted post mortem examination and

Dr.GRR, J CRLA_223_2013 PW16 is the Sub-Divisional Police Officer, Bhainsa who conducted the

investigation of the case.

15. Out of these sixteen witnesses, PWs 4,6,7,8,10 and 11 turned hostile and

not supported the prosecution case. As the trial court acquitted the accused

No.1 for the offences under Section 302 and Sections 3 and 4 of Dowry

Prohibition Act and also acquitted A2 for the offences under Section 302, 304-B

read with Section 109 IPC and Sections 3 and 4 of Dowry Prohibition Act and

the State had not preferred any appeal against such acquittal, this Court is not

inclined to discuss the evidence on these charges. As this appeal is preferred by

A1 only against his conviction and sentence under Section 304-B of IPC, this

Court is confined to examine the legality of the conviction and sentence on the

said count.

16. Section 304-B of IPC reads as follows:

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

Explanation.- For the purposes of this sub- section "dowry", shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

Dr.GRR, J CRLA_223_2013

17. Section 2 of Dowry Prohibition Act defines "Dowry as follows:

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

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

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 3 [***] Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

18. Section 304-B of IPC was inserted by way of amendment by Act 43 of

1996 with effect from 19.11.1986 and Section 113-B was also introduced in the

Indian Evidence Act by way of the same amendment. Section 113-B of Indian

Evidence Act reads as follows:

"[113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment, for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death".

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

Dr.GRR, J CRLA_223_2013

19. Section 304-B IPC must be interpreted keeping in mind the legislative

intent to curb the social evil of bride burning and dowry demand. The

prosecution must first establish the existence of necessary ingredients for

constituting the offence under Section 304-B of IPC. Once these ingredients are

satisfied, the rebuttable presumption provided under Section 113-B of Indian

Evidence Act operates against the accused. As per the definition of dowry in

Section 2 of Dowry Prohibition Act, 1961, the giving or agreeing to give dowry

can be at any time. It can be at, before or at any time after the marriage. Thus,

it can be even after many years after a marriage was solemnised.

20. The fundamental constituents for attracting the provisions of Section

304-B IPC are stated by the Hon'ble Apex Court in Biswajit Halder @ Babu

Halder and others v. State of West Bengal1 as:

(a) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;

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

(c) she must have subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment should be for or in connection with demand for dowry.

21. The Hon'ble Apex Court in State of Madhya Pradesh v. Jogendra and

another2 held that:

"(3) The phrase "soon before" as appearing in Section 304-B IPC cannot be construed to mean

2007 (2) ALT (Crl.) 162 (SC)

(2002) 5 SCC 401

Dr.GRR, J CRLA_223_2013 "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives".

It also held that:

"(4). Section 304-B IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental".

22. In the light of these principles, the evidence of the witnesses has to be

appreciated.

23. The evidence of PW15 would disclose that on 24.05.2012 on receipt of

requisition from Mudhole Police Station at 3:30 PM, he along with

Dr.Kashinath of the Government Area Hospital, Bhainsa conducted autopsy

over the dead body of the deceased, aged 24 years and found the following

injuries on her body:

1. Cutaneous bruise seen around neck at the level of Thyroid Cartilage.

2. Finger Nail abrasions were seen around neck, measuring 1/2 cm.

3. Congestion of tissue around neck.

4. Fracture of Hyoid bone (inward compression fracture) on left side.

The doctor stated that the said injuries were ante mortem in nature and the cause

of death to the best of their knowledge was throttling. Ex.P12, post mortem

certificate was marked through him. In his cross-examination, he specifically

stated that the cause of death was not the fracture of hyoid bone and the death

Dr.GRR, J CRLA_223_2013 occurred due to cerebral anoxia due to throttling. Thus, the evidence of Doctor,

PW15 would rule out that the cause of death was due to hanging.

24. The Tahsildar, Mudhole examined as PW14, who conducted the inquest

panchanama stated that on 24.05.2012 on receipt of requisition from PW13 for

holding inquest over the dead body of the deceased Yasmin @ Shameem, he

conducted inquest over the body in the presence of panch witnesses and blood

relatives i.e., parents of the deceased. He found an external injury on the neck

of the deceased. He stated that the blood relatives and panchas opined that there

were disputes between the deceased and the accused with regard to payment of

money. The inquest panchanama was marked as Ex.P11 through this witness.

25. The learned counsel for the appellant contended that there were

contradictions in the evidence of witnesses PWs 6,7 and 8 with the evidence of

PWs 14 and 15 with regard to the cause of death of the deceased. PWs 6,7 and

8 stated that the cause of death of the deceased was due to hanging. PWs 6 and

7 are the neighbours of the deceased and A1 at their house at Asta. PW6 stated

that on the date of death of the deceased, she along with others in the village

went to the house of A1 and the deceased and found that the deceased died by

hanging. PW7 also stated that after the death of the deceased, she went to the

house of the deceased and A1 and found that the deceased died by hanging.

PW8 is a student of A1. As per the prosecution case, he went to the house of

the A1, on the instructions of A1 to get something and found the dead body of

Dr.GRR, J CRLA_223_2013 the deceased. PW8 stated in his evidence before the court that "by the time he

went to the house of A1, the dead body of the deceased was found in hanging

position".

26. These witnesses are not experts to speak about the cause of death of the

deceased. They were only neighbours who visited the house of the deceased

after the death of the deceased and stated what they have seen. As the evidence

of PW15 would rule out that the cause of death of the deceased was not due to

hanging but due to cerebral anoxia due to throttling, someone who caused the

death of the deceased by throttling might have given a picture that the deceased

died due to hanging to show it as a suicide. The finger nail abrasions around the

neck noted in Ex.P12, PME also would rule out the theory of hanging.

27. But, however, to prove the evidence under Section 304-B IPC, the

prosecution need not establish that the cause of death of the deceased was due to

homicide and not suicide. It is sufficient if it is shown that the deceased died

otherwise than under normal circumstances, which can be either homicide or

suicide or caused by any burns or bodily injury. What is excluded was that the

death should not be an accidental one or under normal circumstances. As such

even, if it is considered that there were contradictions in the evidence of the

witnesses with regard to the cause of death of the deceased, the said

contradictions were not material to throw the case out of the purview of Section

Dr.GRR, J CRLA_223_2013 304-B IPC. But, however, there is no reason to suspect the evidence of PW15

with regard to the cause of death of the deceased was due to throttling.

28. As seen from the evidence of PWs 1 to 3, these witnesses; the father,

mother and brother of the deceased stated that the deceased Yasmin @

Shameem was their daughter. PWs 1 and 2 were having seven (07) daughters

and one (01) son. They performed the marriage of the deceased with A1 eight

months back. At the time of marriage, they presented Rs.30,000/- cash, 1 tula

of gold, 12 tulas of silver and other household articles. After the marriage, the

deceased and A1 lived for sometime at Beltharoda and later they shifted to Asta

Village. A1 got a job as Imam in a masjid at Asta village. After their marriage,

A1 started demanding additional dowry of Rs.10,000/-, 1/2 tula gold and other

household articles. Disputes arose between the deceased and A1. On receiving

the information, PW1 went to the house of A1. On that, A1 asked PW1 to

discuss with his mother, sister and A2 and after they came from Beltharoda, a

quarrel ensued between them with regard to demand for additional amount and

additional articles by A1, and A1 left the deceased at her parental house and she

stayed with them for about 15 days. After 15 days, A1 came to his in-laws

house and took away the deceased with him. After one month, the complainant

went to the house of his daughter and A1. On that, A1 had not allowed him into

the house stating that unless additional amount of Rs.10,000/- and additional

articles were presented, he would not permit him into the house. Accordingly,

Dr.GRR, J CRLA_223_2013 he returned back. The deceased died 15 days later. The complainant was

informed by phone from others of that village. Accordingly he rushed to the

Asta village and found the dead body of the deceased in the house of A1 and

found external injuries on the body of the deceased, on her back portion, neck

and throat and lodged the complaint.

29. PW2 stated that two months after the marriage of the deceased with A1,

A1 started demanding additional dowry of Rs.10,000/-, 1/2 tula gold. A2

informed about such demand of A1 over phone. At that time, the deceased was

at her house, they convinced the deceased during her stay with them and sent

her back to the house of A1. They promised to arrange the amount of

Rs.10,000/- within one month but they were unable to adjust that amount. She

along with PW1 went to the house of A1. On that he asked them to stay during

that night at his house and called his mother and A2. Accordingly they came

and started quarrelling with them. Thereafter, she and her husband left the

house of A1. She further stated that even in their presence A1 bet the deceased.

Again on another occasion, PW1 went alone to the house of A1 to see the

deceased. At that time, A1 had not permitted PW1 to enter into their house

stating that unless the demand for additional dowry of Rs.10,000/-, 1/2 tula gold

was satisfied, he would not permit PW1 to enter into the house. Thereby, PW1

returned back to their house. After 15 days, A2 made a phone call and stated

that she would not be responsible if something happens to the deceased since

Dr.GRR, J CRLA_223_2013 they failed to pay the additional dowry and to present 1/2 tula gold. After

receiving the information about the death of the deceased, they went to the

house of A1 and found the dead body of the deceased with injuries on her knees,

on her back and also injuries with cigarette butts. The deceased was carrying

three months pregnancy at the time of her death.

30. PW3, the brother of the deceased also stated about the dowry given at the

time of marriage and additional dowry demand made by A1 and A1 leaving the

deceased at their house and his parents being necked out from the house of A1

unless the demand of 1/2 tula of gold and Rs.10,000/- cash was met,

accordingly, his parents returning back to the house.

31. PW5, stated that he had settled the marriage of the deceased Yasmeen @

Shameem with A1. The marriage was performed at Pulenagar of Dharmabad in

the State of Maharashtra. At the time of her marriage, PW1 promised for

payment of Rs.20,000/- cash, 1 tula of gold and 12 tulas of silver and presented

the same at the time of marriage. After their marriage, A1 and the deceased

lived at their house at Beltharoda. Thereafter, accused No.1 started harassing

the deceased and finally killed her by hanging with a demand for additional

amount of Rs.50,000/- as PW1 was unable to meet such demand. He also went

to the house of A1 and found the dead body of the deceased. In his cross

examination, he stated that he was junior paternal uncle of PW1.

Dr.GRR, J CRLA_223_2013

32. The contention of the learned counsel for the appellant was that there

were several contradictions in the evidence of PWs 1 to 3 and 5. While PWs 1

to 3 stated that they gave a dowry of Rs.30,000/- in cash, PW5 stated about

giving Rs.20,000/- cash. While PWs 1 to 3 stated about additional dowry

demand of Rs.10,000/- and 1/2 tula gold, PW5 stated about the additional

dowry demand of Rs.50,000/-. PW2 stated that the deceased was carrying three

months pregnancy which was not stated by the doctor who conducted PME.

Likewise, PW2 also stated that there were injuries on the body of the deceased

on her knees, back and with cigarette butts which were not stated by the doctor

or the inquest panch witness, thus, the evidence of these witnesses could not be

believed to come to a conclusion about the harassment of the deceased for

additional dowry demand.

33. The learned counsel for the appellant relied upon the judgment of the

Hon'ble Apex Court in Sunil Kumar Sambhudayal Gupta (Dr.) and Others v.

State of Maharashtra3, wherein it was held that:

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal

(2010) 13 SCC 657

Dr.GRR, J CRLA_223_2013 course would not be justified in reviewing the same again without justifiable reasons."

34. In the same case, the Hon'ble Apex Court while extracting its judgment

in State of Rajasthan v. Kalki4 held that:

"8. ..... In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person".

35. The Hon'ble Apex Court also extracted its judgment in Bihari Nath

Goswami v. Shiv Kumar Singh5 and held that:

"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility".

36. The Hon'ble Apex Court further held that:

"37.While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited".

AIR (1981) SC 1390

(2004) 9 SCC 186

Dr.GRR, J CRLA_223_2013

37. In the present case, the evidence of PWs 1 to 3 and 5 is consistent about

the dowry paid by them and also that A1 demanded for additional dowry.

Though, there may be slight contradictions in the evidence of PWs 1 to 3 and 5

as to the quantum of dowry paid by them and the additional dowry demanded,

the said discrepancies would not make their evidence untruthful. PW2 stating

about the deceased carrying three months pregnancy and finding injuries of

cigarette butts could be an exaggeration, but the same would not render her

evidence impeachable on other aspects.

38. The evidence of these witnesses is consistent with regard to A1

demanding additional dowry and leaving the deceased at the house of PWs 1 to

3 with the said demand and refusing PW1 to enter into their house unless the

said demand was met.

39. Thus, the evidence of these witnesses would show that the harassment

was not restricted to one particular instance, but was a course of conduct spread

over the past six months prior to her death. The contention of the learned

counsel for the appellant was that there was no evidence led by the prosecution

that soon before her death, the deceased was subjected to harassment or cruelty

by A1 demanding additional dowry.

40. The judgment of the Hon'ble Apex Court relied by him in State of

Madhya Pradesh v. Jogendra and Another (2 supra) itself would disclose

that:

Dr.GRR, J CRLA_223_2013 the meaning of the expression "soon before her death" has been discussed threadbare in several judgments. In Surinder Singh v. State of Haryana 6 , while relying on the provisions of Section 113-B of the Evidence Act, 1872 (for short "the Evidence Act) and Section 304- B IPC, where the words "soon before her death" find mention, the following pertinent observations have been made: (SCC pp.137- 139, paras 17-18) "17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304- B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of

(2014) 4 SCC (Cri) 769

Dr.GRR, J CRLA_223_2013 Punjab 7 where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222-23, para 15) '15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time- limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration

(a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough." Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.

(2000) 5 SCC 207

Dr.GRR, J CRLA_223_2013

16. In Rajinder Singh v. State of Punjab 8 , falling back on the rulings in Kans Raj v. State of Punjab (7 supra), Dinesh v. State of Haryana 9 and Sher Singh v. State of Haryana10, it has been emphasized that "soon before" is not synonymous to "immediately before" and the following observations have been made (Rajinder Singh v. State of Punjab (8 supra), SCC p.493, para 24): -

"24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B."

17. In the above context, we may usefully refer to a recent decision of a three Judge Bench of this Court in Gurmeet Singh v. State of Punjab 11 that has restated (at SCC pp.111-12, para 9) the detailed guidelines that have been laid down in Satbir Singh and Another v. State of Haryana 12 , both authored by Chief Justice N.V. Ramana, relating to trial under Section 304-B IPC where the law on Section 304-B IPC and Section 113-B of the Evidence Act has been pithily summarized in the following words: Satbir Singh and Another v. State of Haryana (12 supra), SCC p.13, para 38 "38.1. Section 304-B IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand. 38.2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-

B IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided

(2015) 3 SCC (Cri)225)

(2014) 6 SCC (Cri) 839

(2015) 2 SCC (Cri) 422

(2021) 2 SCC (Cri) 771

(2021) 2 SCC (Cri) 745

Dr.GRR, J CRLA_223_2013 under Section 113-B of the Evidence Act operates against the accused.

38.3. The phrase "soon before" as appearing in Section 304- B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

38.4. Section 304-B IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental."

41. Thus, the words soon before appearing in Section 304-B could not be

construed immediately before and it could be stretched to any period. The

proximate and live link between the effect of cruelty based on the demand of

dowry and on consequential death was required to be proved by the prosecution.

42. The evidence of PWs 1 to 3 and 5 would prove that the death of the

deceased occurred within eight (08) months of her marriage and she was

subjected to cruelty or harassment in the hands of her husband and such cruelty

or harassment was in relation to demand for dowry.

43. Thus, the prosecution proved the guilt of the accused for the offence

under Section 304-B IPC successfully. It was for the accused to rebut the said

presumption and the accused failed to adduce evidence and failed to rebut the

said presumption. As such, the trial court rightly held A1 guilty for the offence

under Section 304-B IPC. The sentence imposed against him is also appropriate

Dr.GRR, J CRLA_223_2013 to the facts and circumstances of the case. Hence, this Court does not find any

reason to interfere with the same.

44. Hence, the point is answered accordingly in favour of the prosecution as

against the appellant and the appeal preferred by the appellant/A1 is dismissed

upholding the judgment of the trial court in confirming the guilt of A1 for the

offence under Section 304-B IPC and confirming the sentence imposed against

him.

45. Miscellaneous applications pending, if any, shall stand closed.

___________________________ DR. G.RADHA RANI, J

Date: 07-11-2022 nsk

Dr.GRR, J CRLA_223_2013 Citations:

1. Biswajit Halder @ Babu Halder and others v. State of West Bengal,

2007 (2) ALT (Crl.) 162 (SC)

2. State of Madhya Pradesh v. Jogendra and another, (2002) 5 SCC 401

3. Sunil Kumar Sambhudayal Gupta (Dr.) and Others v. State of Maharashtra, (2010)

13 SCC 657

4. State of Rajasthan v. Kalki, AIR (1981) SC 1390

5. Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186

6. Surinder Singh v. State of Haryana, (2014) 4 SCC (Cri) 769

7. Kans Raj v. State of Punjab, (2005) 5 SCC 207.

8. Rajinder Singh v. State of Punjab, (2015) 3 SCC (Cri) 225

9. Dinesh v. State of Haryana, (2014) 6 SCC (Cri) 839

10. Sher Singh v. State of Haryana, (2015) 2 SCC (Cri) 422.

11. Gurmeet Singh v. State of Punjab, (2021) 2 SCC (Cri) 771

12. Satbir Singh and Another v. State of Haryana, (2021) 2 SCC (Cri) 745