SMT. SHANTI AND ANR. versus STATE OF HARYANA

NOVEMBER 13, 1990

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.]

Indian Penal Code,-1860: Sections 304-B and 498-A-Scope of.

Dowry Death-Relaiive of the husband !if woman subjecting her to cruelty-Woman's death occurring in unnatural circumstances-Prosecution of A_ccused-Conviction under section 304-B-:Acquittal under section 498-A-Effect of-Seciions 304-B and 498.-A~Whether mutually exclusive. · · .

Evidence Act,· 1872: Section I 13:8-Presumption as to dowry death.

Dowry Prohibition Act, 1961: Section 2-Dow,.Y..,.Meaning of,

The ~ppellants, along with three other co:acctised," we~e charged_ of committing a. dQwry death. They were prosecuted under sections 201, · 304-B and 498-A of the Indian Penal Code .. The Trial Court convicted the appellants on all the counts but acquitted the other three co-accused.

The appellants preferred ari· appeal before the High Court which_ set aside their conviction· '!Ilder section 498-A holding that_ Sections 304-B and 498-A. are mutually exclusive and that when on~. the cruelty envisaged in section 498-A culminates in dowry death of the victim Section 304-B alone is attracted~ Accordingly, the High Court acquitted the appellants under section 498-A. But their convictions under section 304-B and 201 were affirmed. ·

In the appeal to this Court, it was contended on behalf of the appellants: (i) that the acquittal of the appellants under section 498-A indicates that cruelty on the part of the acctised was not proved and consequently the death cannot be one of "dowry death'', and (ii) that there was no direct evidence in this case and that all the ingredients of section 304-B oflndian Penal Code were not made out. . '

Disposing of the appeal, this Court,

·HELD: 1. The view of the High Court that Sections 304-B and 498-A I.P.C. are mutually exclusive is not correct. Sections 304-B and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is common essen-tial to both the Sections and that has to be proved. The Explanation to Section 44)8..A gives the meaning of "cruelty". In Section 3()4.B there is no such explanation about the meaning of "cruelty" but having regafd to the common background-to these offences, the memiing of "cruelty 01· harassment" will be the same as found in the explanation to Section 498-A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304-B, It IS the "dowry death" that Is punishable and such death should have occurred within seven years of the marriage. No such period Is mentioned in Section 498-A end the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further person charged and acquitted under section 304-B can be convicted under Section 498-A . without charge being there, If such case is made oul. But from the point of view of practice and procedure and to avoid technical defects It is neceSsary in such cases to frame charges under both the Section and If the case Is established they can be convicted under both the Sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under section 304-B. [682D-H; 683A]

1.1 In the instant case, the High Court has not held that the prosecution has not established cruelty on the part of the appellants but on the other hand it considered the· entire evidence and held that the element of cruelty which is also an essential of Section 3()4.B I.P .C has been established. In these circnmstances, therefore, thi mere acquittal of the appellants under Section 498-A I.P.C. makes no dltJerence for the purpose of this case. [682C-D] · 0

2. In the instant case, there Is absolutely no material to indlcale

even remotely that it was case of natural death. It Is nobody's case that it was accidental death. In the result It was an unnatural death; either homicidal or suicidal. But even assuming that It Is case of suicide even then It would be death which had occurred in unnatural circumstances. Even in such case, Section 304-B Is attracted. There-fore, the prosecution has established that the 11ppellants have commlted an offence punishable under Section 304-B beyond all reasonable doubt. [681G-H; 682A]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

No. 368 of 1990.

From tht Judgment and Order dated 1.2.1990 of the Punjab and Haryana High Court in Crl. A. No. 703 D.B. of 1988.

U.R. Lalit, Ranbir Singh Yadav andP. Gaurfor the Appellants.

Mahabir Singh for the Respondent.

The Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. This is case of dowry death.

The deceased by name of Smt. Kailash was the daughter of Hari Bhagwan, P.W. 1 of Jonala. She was married to one Sat Pal of Mundaliya Village about 9 kilometres away from Jonala. The marriage · took place on 18th April, 1987. Sat Pal, the husband at the relevant time was serving in the Army. His father namely the father-in-law of deceased was employed in Railways. Accused No. I Smt. Shanti is the mother of Sat Pal, and the mother-in-law of the deceased. The other appellant Smt. Krishna, wife of the brother of Sat Pal was another inmate. After marriage the deceased was livi.r\g in her matrimonial home with accused Nos. 1 and 2, the two appellants herein. It is alleged that these two women were harassing the deceased all the while after the marriage for not bringing Scooter and Television ·as part of the dowry and she was treated cruelly. The marriage of one Munni, cousin of the cleceased was fixed for 30th April, 1988. Her brother )NCnt to Mundaliya village twice for bringing the deceased but the accused only taunted him and sent him away without sending the deceased. Ultimately, P.W. I, the father himself went to the home of his dauther, the deceased on 25th April, 1988. The two. appellant\ misbehaved with him saying that if he was fond of his daughter he ought to have arranged Scooter and Television as part of the dowry and he was insulted and pushed out of the house. On 26th April, 1988 at about 11 P .M: P. W. I came to know that the deceased had been murdered and was cremated by the two ladies with the help of another three persons. report was given and the police could recover only bones and ashes. After investigation, the charge-sheet was laid.

The Additional Sessions Judge, who tried all the five accused convicted the appellants under Section 304-B I.P.C. and sentenced each of them to life imp!isonment and under section 201 Ii>.C,, . sentenced them to undergo_ imprisonment for one year and to pay fine of Rs.2,000 each and also under Section 498:A I.P.C. to t.wo _years rigorous imprisonment and to pay fine of Rs.3,000. The sentences were directed to run concurrently, The other accused were acquit~

These two appellants preferred an appeal to the High court and the same was dismissed. The High Court, however, set aside the convic-tion under Section 498-A LP .C. The present appeal, pursuant to the leave granted by this Court, has been preferred against the judgment of the High Court.

Mr. La lit; learned counsel for the appellants submitted that there is no direct evidence in this case and that all the ingredients of an offence under Section 304-B 1.P.C. are not made out. According to him, it is not conclusively proved that the two appellants subjected the deceased to cruelty or harassment and the very fact that the High Court has acquitted the appellants of the offence punishable under Section 498-A would itself indicate that the prosecution case regarding cruelty is not accepted and consequently the death cannot be one of "dowry death". On merits, he submitted that in the absence of clear proof of the .cause of death one cannot presume that the death occilr-red in unnatu.ral circumstances.

Section 304B l.P.C. reads as follows:

"304B. Dowry death-(1) Where the death of woman is caused by .any burns or bodily injury or occurs otherwise than under normal circum.stances 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 purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

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

This Section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with view to combat the increasing menace of dowry deaths. It lays down that wl!ere the death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circums-H lances within seven years of her marriage and it is shown that soon

before the death of the woman she was subjected to cruelty or harass-ment by her husband or his relations for or in connection with any demand for dowry, such death shall be called "dowry death" and the husband or relatives shall be deemed to have caused her death and shall be punishable with .imprisonment for minimum of seven years but which may extend to life imprisonment. As per the explanation to the Section, the "dowry" for the purposes of this Section shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 which 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 marriage to the other party to the marriage; or

(b) by the parents of either party to 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."

Keeping in view the object, new Section 113-B was introduced in the Evidence Act to raise presumption as to dowry death. It reads as under:

"113B. Presumption as to dowry death-When the ques-tion as whether person has committed the dowry death of woman and it :s 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."

One another provision which is relevant in this context is Section 498-A LP .C. which reads as under:

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

Explanation-For the purposes of this section, "cruelty" means-

(a) any wilful conduct which is of such 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 harassme11t is with 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."

careful analysis of Section 304B shows that this Section has the following essentials:

"(l) The death of woman should be caused by burns or bodily injury or otherwise than under normal circums-tances;

(2) Such death should have occurred within seven years of her marriage;

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

( 4) Such cruelty or harassment should be for or in connec-tion with demand for dowry."

Section 113B of the Evidence Act lays down that if soon before the death . .such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the Court shall pre-sume that such person has committed the dowry death. The meaning of "cruelty" for the purposes of these Sections has to be gathered from the language as found in Section 498-A and as per that Section

'.'cruelty" means "any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave in jury or danger to life etc. or harassment to coerce her or any other person related to her to meet any unlawful demand for any property or valu-able security or is in account of failure by her or any person related to her to meet such demand." As per the definition of "dowry" any property or valu.able security given or agreed to be given either at or before or any tiine after the marriage, comes within the meaning of "dowry", With this background of the provisions of law we shall examine the facts in the instant case.Both the courts below have held that the two appeilants did not send the deceased to her parent's house and drove out the brother as well as the father of the deceased complaining that scooter and televi-sion have not been given as· dowry. We have carefully examined this part of the pro~cution case and we are satisfied that the prosecution nas established beyond all·reasonable doubt that the appellants treated the deceased cruelly and the same squarely comes within the meaning of "cruelty" which is an essential under Section 304-B and that such cruelty was for demand for dowry. It is an admitted fact that death occurred within seven years of the marriage. Therefore three essen-tials are satisfied. Now we shall see whether the other essential namdy whether the death occurred otherwise than under normal circums-tances is also established? From the evidence of P. W. 1, the father, PW: 2 the brother, and P.W. 3 the mother, it is clear that they were not even informed soon about the death and that the appellants hurriedly cremated the dead body. Under these ci~cumstances, the presumption under Section 113B is attracted. The accused examined defence witnesses to rebut the presumption and to show that the deceased suffered heart~attack. We have examined the evidence of D. Ws 2 and 3 and we agree with the courts below that this theory of natural death cannot b.e accepted at all. No material was placed to show that the deceased suffered any such attack previously. If it was natural death, there was no need for the appellants to act in such unnatural manner and cremate the body in great and unholy haste without° even informing the parents. Because o1 this cremation no post-mortem could be conducted and the actual cause of death could not be established clearly. There is absolutely no material to indicate even remotely that it was case of natural death. It is nobody's case that it was accidental death. In the result it was an unnatural death; either homicidal· or suicidal. But even assuming that it is case of suicide even then it would be death which had occurred in unnatural circums-tances. Even in such case, Section 304B is attracted and this position

is not disputed. Therefore, the prosecution was established that the appellants have committed an offence punishable under Section 304B beyond all reasonable doubt.

Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission .of the learned counsel is that the ac-quittal under Section 498-A I.P.C. would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304B and Section 498-A I.P.C. are mutually exclusive and that when once the cruelty envisaged in Section 498-A 1.P.C. culminates in dowry death of the victim, Section 304B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A I.P.C. It can therefore be sr~n that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304B l.P.C. has been established. Therefore the mere acquittal of the appel-lants under Section 498-A I.P.C. in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304B and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is common essen-E tial to both the Sections and that has to be proved. The Explanation to Section 498-A cives the meaning of "cruelty". In Section 304B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences we have to take that the meaning of "cruelty or harassment" will be the same as we find in the· explanation to Section 498-A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304B as already noted, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further it must also be borne in mind that person charged and acquitted under Section 304B can be convicted under Section 498-A without charge being there, if such case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the Sections and if the case is established they can be convicted under both the Sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded

SMT. SHANTI v. STATE OFHARYANA [K. JAYACHANDRA REDDY, J.] 683

for the major offence under Section 304B. '

· These are all the submissions and we do not find merit in any of them. Therefore, we confirm the convictions.

Now coming to the sentences, accused No. 2, the wife of ihe hU•band's brother is young lady of 20 years at the time of the trial. As alteady mentioned, there is no evidence as to the cause of death but as discussed above, the cruelty on the part of these two appellants is established but in bringing about the death, there is no evidence as to the actual part played ·by accused No. 2. Further both the appellants are women. Under these circumstances, minimum sentence of seven years' rigorous imprisonment would serve .the ends of justice. Accord-c ingly the convictions are confirmed but the sentence of imprisonment for life under Section 304B LP.C. of each of the accused appellant is set aside and instead each-of them is sentenced to undergo seven years' rigorous imprisonment. The appeal is disposed of accordingly.

Appeals disposed pf.