DEVI LAL versus STATE OF RAJASTHAN

DEVI LAL

v. STATE OF RAJASTHAN

OCTOBER 12, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.)

Penal Code, 1860:

s. 304-B-Dowry death-Unnatural death of bride-Dead body cremated without informing her relatives-Evidence on record showing victim having been subjected to harassment and cruelty for dowry-Conviction of husband and mother-in-law by trial court-Conviction of husband confirmed by High Court-Plea that there was no evidence of demand of dmwy made in respect of any specific item-HELD: It is not necessaJy that demand of any particular item should have been made-Before an accused is found guilty of an offence, Court must arrive at finding that ingredients thereof have been established--For this purpose statement of witness must be read in its entirety-Ingredients of s. 304-B explained-On facts, tests of s. 304-B stood satisfied-Evidence Act, 1872-s. l l 3-B.

Investigation:

Recording of supplementary statement of complainant by Investigating Officer-Evidentiary value of-Dowry death-Dead body of bride cremated without informing and in the absence of her relatives-Later supplementary statement of father of victim recorded that he was present at the funeral-Trial Court observing that recording of the same was not at all necessary-Trial Court and High Court commenting upon the manner in which police made all efforts to help accused-HELD: Recording of supplementary statement has [G ]rightly been disbelieved by courts below.

The appellant and his mother were prosecuted under s.304-B IPC. The prosecution case was that the appellant married the

daughter of PW-1, and since the date of the marriage the accused were harassing the bride for not bringing sufficient dowry. Again at the time ot'birth of her son when she returned to her matrimonial home, both the accused harassed her for dowry. few days prior to the incident, her uncle, PW-2, went to see her and she complained about the harassment meted out to her. He conveyed the same to PW-1 and asked him to see her daughter. On 9.5.1994, PW-1 alongwith his nephew, PW-7, went to the house of her daughter where they came to know that she had died and her dead body had been cremated. PW-1 lodged an FIR the same day. Later purported supplementary statement of PW-1 was recorded wherein he allegedly accepted that he was present at the time of funeral. However, protest petition was filed whereupon cognizance of the offence was taken. Ultimately, the trial court convicted both the accused u/s 304 IPC. On appeal, the High Court set aside the conviction of the mother-in-law of the deceased, but affirmed the conviction of her husband.

In the instant appeal, it was contended for the accused-appellant that the co mis below failed to take into consideration that no demand of dowry was made in respect of any specific item; PW-E 1 in his deposition did not categorically state that his daughter was subjected to harassment for and in connection with any demand of dowry soon before her death; that on facts of the case, presumption under s.113-B of the Limitation Act, 1963, was not attracted and, therefore, no case under s.304 IPC was made out.

Dismissing the appeal, the Court

HELD: 1.1. Section 113-B of the Evidence Act, 1872 relates to Section 304-B IPC. In terms of Section 113-B, the prosecution must prove that the deceased was "subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry". The ingredients of Section 304B are : (1) the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4)

such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death.

[Para 19 and 20] [227-B, C, DJ

Harjit Singh v. State of Punjab, [2006) 1 SCC 463; Ram Badan Sharma v. State of Bihar, [2006) 10 SCC 115; Satvir Singh v. State of Punjab, (2001] 8 SCC 633; and Hans Rajv. State ofHaryana, [2004) 12 sec 257' relied on.

T Aruntperunjothi v. State through SHO, Pondicherry, (2006] 9 sec 467, referred to.

1.2. Before an accused is found guilty for commission of an offence, the Court must arrive at finding that the ingredients thereof have been established. The statement of witness for the said purpose must be read in its entirety. It is not necessary for witness to make statement in consonance with the wording of the section [D ]of statute. What is needed is to find out as to whether the evidences brought on record satisfy the ingredients thereof. [Para 25)

1.3. The fact that death of the victim took place within the period of seven years from the date of marriage is not in dispute. Unnatural death of victim is also not in dispute. Evidence brought on record by the prosecution clearly suggests that the deceased had all along been subjected to harassment or cruelty only on the ground that her father had not given enough dowry at the time of marriage. For proving the said fact, it was not necessary that demand of any particular item should have been made. Evidence of PW-1 and his brother PW-2 goes long way to establish the ingredients of offence. Reading their testimonies in entirety, there is no doubt that the harassment and cruelty meted out to the deceased was for and in connection with the demand of dowry. Demand of dowry did not abate at any point of time. Demands were made both before and after the birth of the son and she had been assaulted even few days prior to the incident. Thus, tests of Section 304-B of the Indian Penal Code, 1860 stood satisfied. [Para 9, 26, 27 and 28) [224-E; 229-C, D, E; 230-B]

1.4. It is not one of those cases, where omnibus allegations have

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been made against the members of the family of accused. First information report was lodged against the accused persons only. Nobody else was implicated. PW-1 has been categorical in stating that victim's father-in-law was gentleman. His effort to persuade his wife and son not to harass the deceased might not have ultimately succeeded but his attempt in that behalf was appreciated by PW-1 and other members of his family with gratitude. It, therefore, cannot be said to be case where PW-1 has falsely implicated anybody. His evidence was supported in material particulars by his brother PW-2. [Para 28] [229-G; 230-A]

2. The record indicates that the investigating agency had been

helping the accused. The trial Judge, as also the High Court commented upon the manner in which the Police made all efforts to help the accused. The investigating officer purported to have recorded supplementary statement of PW-1 which, according to the trial Judge, was not at all necessary. Recording of the said supplementary statement has been rightly disbelieved by the courts below. (Para 4 and 29] [223-D; 230-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1088of2001.

From the Judgment and Order dated 5.12.2000 of the High Court ofRajasthan at Jodhpur in S.B. Crl. A. No. 187of1999.

Sanjay R. Hedge for the Appellant.

Navin Singh, Aruneshwar Gupta and Shashwat Gupta for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. In the year 1991, Appellant married Pushpa Devi, the deceased. male child was born to them.

2. At the time of marriage, father of Pushpa, Haz.ari Ram, allegedly,

spent lot of money. Appellant's family, however, was not happy with the dowry given by the bride side. Pushpa was allegedly tortured and continuously harassed. She had, however, no grievance against her father

' .. ., "

in law, namely, Ram Swaroop. He had all along been assuring Pushp~ and her parents that he would do his best to see that she is not harassed for not bringing enough dowry.

3. After the birth of the child, she came back to her matrimonial

home. few days prior to the incident which took place on 9.5.1994 her uncle Ranveer (PW-2) visited her. She made complaints about the, harassments meted out to her. Ranveer conveyed the same to her father. On 9.5.1994, his nephew, Madan Lal (PW-7) was going to some place. Haz.ari Ram asked him to take him to his daughter's place. On reaching the house of Pushpa, he enquired about her. No response thereto was made but later on he was informed that she had died and the dead body has been cremated. Haz.ari Ram allegedly came back to his village. He went back to Umawali. Panchayat was held. Appellant's family accepted the purported mistake that they should have informed Hazari Ram about the death of his daughter. It was agreed that some lands would be settled in the name of the son of Pushpa .

4. On 9.5.1994, first information report was lodged by Hazari

Ram. It appears from the records that investigating agency had been helping the accused. purported supplementary statement of Hazari Ram was recorded wherein he had allegedly accepted that he was present at the time of funeral. final form was submitted. However, protest petition was filed whereupon cognizance of the offence under Section 304B of the Indian Penal Code (Code) was taken. Charges were framed under Section 304B of the Code and in the alternative under Section 306 read with Section 498A thereof. The Trial Court convicted both the accused, 'F namely, Devi Lal and his mother Sukh Devi.

5. An appeal having been preferred by the accused thereagainst before the High Court, the appeal of the appellant was dismissed; but that of Sukh Devi was allowed.

6. Mr. Sanjay Hegde, learned counsel appearing on behalf of the [0 ]

appellant, would submit that the High Court committed an error in passing the impugned judgment insofar as it failed to take into consideration that no demand of dowry was made in respect of any specific item. It was urged that the prosecution has also not proved as to whether the purported

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harassment meted out to the deceased was as result of demand of dowry or not. Section 113-B of the Evidence Act, whereupon reliance has been placed by learned Trial Judge as also the High Court, Mr. Parekh would contend, is not attracted to the facts of the present case.

7. Mr. Naveen Singh, learned counsel appearing on behalf of the State ofRajasthan, on the other hand, submitted that from the deposition of the prosecution witnesses, it would be evident that all the ingredients of Section 304-B of the Indian Penal Code have been proved.

8. Defence of the accused before the learned Trial Judge was that

as Pushpa Devi delivered child, the societal norms by way of custom demanded that the occasion be celebrated by offering gifts and distributing sweets, meal etc. by the maternal grand-father of the child. It was pointed out that almost at the same time, elder brother Banwari Lal' s wife also delivered child and there was big celebration. Pushpa wanted his father to celebrate the function of her son in similar manner. But the same was not done. She not only came back from her parents' house but after few days committed suicide. It was furthermore the case of the defence that Hazari Ram was informed about the death of his daughter through one Nand Ram, pursuant whereto, he attended the funeral. Prior thereto,

village panchayat was held and he was informed about his right to lodge first information report but he declined to do so as representation was made that some land would be transferred in the name of the child.

9. The fact that death of Pushpa took place within the period of seven years from the date of marriage is not in dispute. Unnatural death

of Pushpa is also not in dispute.

I 0. Hazari Ram examined himself as PW-1. According to him, he gave to his daughter at the time of her marriage articles beyond his capacity, but the family members of the appellant were not pleased with the amount of dowry given and, therefore, they used to harass Pushpa. According to him, Ram Swaroop, father of the appellant, was gentleman and he had all along been assuring him that they would try to make the appellant and his mother understand but they had not been heeding his advice. He categorically stated that even after the delivery of child, Pushpa asked him to call his father-in-law so that would be pleased. She had

also asked him to give some gifts to him. Ram Swaroop crune to his place

and took his daughter-in-law back. He stated that whenever he would go to his daughter-in-law's house, Ram Swaroop used to assure him with folded hands that he would make Devi Lal and his mother understand. Five to seven days prior to the death of his daughter, his brother Ranveer had gone to meet her. He had informed him about the beating and harassment to his daughter and that he was asked to visit his daughter's place. He, in his examination-in-chief, supported the statement made by him in his first information report.

11. We may notice that Ranveer (PW-2) in his deposition before the learned Trial Judge, stated :

"My brother had given good dowry and articles to his daughter according to capacity. Thereafter, whenever, the girl returned back to her parent's house from her in-law's house, she told to us that my in-laws persons are not happy with the articles of this dowzy and trouble me. Later on, I along with my brother went to Umewali and said that do not trouble and harass her. As possible, we will give continuously more dowry. My brother told me to meet my niece. I went to meet the girl prior to 5-7 days of death of her. When I went to meet, the girl started to weeping and said that they trouble and harass to me. I returned back after advised to her. I narrated this to my brother that they (in-laws persons) trouble and harass to the girl, taking the issue of dowry."

12. PW-7, Madan Lal, was the nephew of Hazari Ram. He took Hazari Ram to the village Umewala on 9th May, Ram to the village Umewala on 9th May, to the village Umewala on 9th May, the village Umewala on 9th May, village Umewala on 9th May, Umewala on 9th May, on 9th May, 9th May, May, 1994. After visiting the After visiting the visiting the the house of his daughter, Hazari Ram came back and told him "they have murdered to pushpa (sic) and cremated".

Hazari Ram to the village Umewala on 9th May, Ram to the village Umewala on 9th May, to the village Umewala on 9th May, the village Umewala on 9th May, village Umewala on 9th May, Umewala on 9th May, on 9th May, 9th May, May, 1994. After visiting the After visiting the visiting the the

13. We need not notice the deposition of other witnesses who had turned hostile.

14. Some witnesses were examined on behalf of the appellant.

According to them, Hazari Ram when asked by the elders of the village as to whether he had any doubt on any person as regards the death of Pushpa or whether he intended to inform the Police, answered in the negative stating that he would not take recourse thereto. The said

witnesses, however, accepted that they had come to depose in court only at the instance of the appellant.

15. It is significant to note that even in the first information report,

Hazari Ram categorically stated that no assistance had been rendered to him .by the villagers.

16. Two courts have concunently accepted the evidence of the prosecution witnesses. The testimonies of the prosecution witnesses have been relied on for amving at the finding of guilt of the appellant. We do not see any reason to take different view.

17. The core question which has been raised for our consideration

in this appeal is as to whether case had been made out for application of Section 113B of the Indian Evidence Act (the Act).

18. The Parliament by Act No.46of1983 and Act No.43 of 1986

inserted Sections 113A and 113B in the Act. They read as under:

"113A. Presumption as to abetment of suicide by married woman.-When the question is whether the commission of suicide by woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within period of seven years from the date of her mamage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-For the purposes ofthis section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code ( 45 of 1860).

J 13B. Presumption as to dowry death.-When the question is whether person has committed the dowry death of woman and it is shown that soon before her death such woman has 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.-Forthe purposes ofthis section "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code (45of1860)."

19. Section l l 3A of the Act relates to offences under Sections 498-

and 306 of the Code, whereas Section l 13B relates to Section 304-B thereof. Whereas in terms of Section l 13A of the Act, the prosecution is required to prove that the deceased was subjected to cruelty, in terms of Section 113B, the prosecution must prove that the deceased was "subject by such person to cruelty or harassment for, or in connection with, any demand for dowry".

20. The question, as to what are the ingredients of the provisions of Section 304B of the Indian Penal Code is no longer res integra. They are : (1) That the death of the woman was caused by any bums or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her maffiage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; ( 4) such cruelty or harassment should be for or in connection with the demand of dowry; and ( 5) it is established that such cruelty and harassment was made soon before her death. {See Harjit Singh v. State of Punjab, (2006] 1 sec 463]; Ram Badan Sharma V. State of Bihar, (2006] 10 sec 115}

21. In T Aruntperunjothi v. State through SHO, Pondicherry,

[2006] 9 SCC 467, this Court held :

"It is now well settled in view of catena of decisions of this Court that what would constitute "soon before her death" depends upon the facts and circumstances of each case."

22. Distinction between Section 113A and 113B was noticed by the Court in Satvir Singh v. State of Punjab [2001] 8 SCC 633, stating

"No doubt, Section 306 IPC read with Section 113-A of the Evidence Act is wide enough to take care of an offence under Section 304-B also. But the latter is made more serious offence

by providing much higher sentence and also by imposing

minimum period of.imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as sequel to the cruelty or harassment inflicted on woman with demand of dowry, soon before her death, Parliament intended such case to be treated as very serious offence punishable even up to imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306 IPC (read with Section 113-A of the Evidence Act) and made separate offence."

23. In Hans Raj v. State of Haryana [2004] 12 SCC 257, this Court held:

"13. Unlike Section 113-B of the Indian Evidence Act, statutory presumption does not arise by operation oflaw merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives discretion to the court to raise such presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. The mere fact that woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the co wt is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman."

24. Submissions of Mr. Hegde that as Haz.ari Ram (PW-I) in his deposition did not categorically state that Pushpa was subjected to harassment for and in connection with any demand of dowry soon before her death, no case for convicting the appellant under Section 304-B has been made out.

25. Indisputably, before an accused is found guilty for commission of an offence, the Court must arrive at finding that the ingredients thereof have been established. The statement of witness for the said purpose must be read in its entirety. It is not necessary for witness to make statement in consonance with the wording of the section of statute. What. is needed is to find out as to whether the evidences brought on record satisfy the ingredients thereof.

26. Evidence brought on record by the prosecution clearly suggest that Pushpa had all along been subjected to harassment or cruelty only on the ground that her father had not given enough dowry at the time of marriage. For proving the said fact, it was not necessary that demand of any particular item should have been made.

27. Evidence ofHazari Ram (PW-I) and his brother Ranveer(PW-2) go long way to establish the ingredients of offence. Reading their testimonies in their entirety, we have no doubt in our mind that the harassment and cruelty meted out to Pushpa was for and in connection with the demand of dowry. Demand of dowry did not abate at any point of time. Demands were made both before and after the birth of the son. plain reading of the deposition of Hazari Ram (PW-I) would categorically show that Pushpa' s father-in-law, Ram Swaroop had all along been apologetic. He persuaded the appellant and his mother not to insist for dowry or at least not harass her therefor. He, however, did not succeed in his efforts. Sentimental attachment of Pushpa to her father-in-law becomes apparent when we find that after giving birth to male child she requested her father to invite him and give him some gifts so that he would be pleased.

28. It is not one of those cases, where omnibus allegations have been made against the members of the family. First information report was lodged against the accused persons only. Nobody else was implicated.

Hazari Ram (PW-1) has been categorical in stating that Pushpa's father-in-law was gentleman. His effort to persuade his wife and son not to harass Pushpa might not have ultimately succeeded but his attempt in that behalf was appreciated by him (PW-1) and other members of his family with gratitude. It is, therefore, cannot be said to be case where Hazari Ram (PW-1) has falsely implicated anybody. His evidence was supported in material particulars by his brother Ranveer (PW-2). The very fact that harassment or cruelty on Pushpa did not abate even after her coming back to the matrimonial home with son and the fact that she had been assaulted even few days prior to the incident, in our opinion, tests of Section 304-

Bofthe Indian Penal Code stood satisfied. Ranveer (PW-2) informed his brother, Hazari Ram (PW-1), about the harassment meted out to Pushpa. He was asked to go there. He went there to find his daughter dead; her cremation having already taken place.

29. Learned Trial Judge, as also the High Court commented upon the manner in which the Police made all efforts to help the accused. The investigating officer purported to have recorded supplementary statement ofHazari Ram (PW-1) which, according to the learned Trial Judge, was not at all necessary. Recording of the said supplementary statement has been disbelieved by the courts below.

30. In this view of the matter, we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is, therefore, dismissed.

Appeal dimissed.