MAHESH KUMAR versus STATE OF HARYANA

[2019] 11 S.C.R. 587

MAHESH KUMAR

STATE OF HARYANA

(Criminal Appeal No. 1042 of 2012)

AUGUST 07, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Penal Code, 1860 – s.304-B – Dowry death – When not –PW-3-father of the deceased stated that the appellant got marriedto his daughter on 26.05.91 – Soon after the marriage, she wasilltreated by the appellant, father-in-law, mother-in-law and sister-in-law, as they demanded dowry – As per PW-3, on 08.02.94, hereceived information that his daughter expired in the Hospital andalleges that the same was caused by the administration of poisonby the accused persons – Trial court concluded that the prosecutionproved its case only against the appellant and the mother-in-law ofthe deceased whereas in respect of accused father-in-law and sister-in-law, no specific role was assigned and therefore, they wereacquitted – High Court, while granting benefit of doubt to the mother-in-law, allowed her appeal and acquitted her, whereas sentence ofthe appellant was reduced to seven years – On appeal, held:Prosecution relied upon the statement of PW3 and PW4-brother ofthe deceased, which was made basis of conviction by courts below– However, such statements are not sufficient to prove that thedeceased was treated with cruelty relating to demand of dowry soonbefore her death, in the absence of independent evidence thoughavailable but not examined – Further, the documentary evidence inthe shape of letters written by the deceased does not support thestory of the prosecution – Prosecution failed to prove either thedemand of dowry or that any such demand was raised soon beforeher death – Essential ingredients of offence u/s.304-B, IPC notproved – Prosecution has even failed to prove the initial presumptionu/s.113-B of the Evidence Act – Thus, the prosecution has failed toprove the allegations levelled against the appellant beyondreasonable doubt – Conviction of the appellant, set aside – EvidenceAct, 1872 – s.113-B.

588SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD:1.1 In the present case, the prosecution relies uponthe statement of PW3-father and PW4-brother of the deceasedwhich has been made basis of conviction by courts below.However, such statements are not sufficient to prove that theBdeceased was treated with cruelty relating to demand of dowrysoon before her death in the absence of independent evidencethough available but not examined. memorandum Ex.PE/1 dt.25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat.But none of the Panchayat Members have been examined to proveCthe settlement arrived at. Therefore, the oral statements cannotbe relied upon in view of the letters produced by the prosecution.The prosecution also relies upon letter Ex. PF/1 written by thedeceased to her father. The letter is to the effect that her in-lawshave started hating and suspecting the deceased’s father,Dtherefore, he should not give them the gold chain but only cash.Such letter does not show that anything was demanded by theappellant. The date of sending such letter has not been provedby the prosecution, therefore, it cannot be said that such letterwas written soon before her death. Similarly, another letterproduced by the prosecution is Ex. PK/1 which is letter of theEdeceased to her brother-in-law(sisters-husband) stating that shehas no problem with her mother-in-law and sister-in-law but herhusband beats her daily. The date of this letter has not been provednor does such letter lead to any inference for the demand of dowryby the husband of the deceased. Further, an additional letter relied

Fupon by the prosecution is Ex. PG/1 dated 25.05.1992, whereinthe deceased has written that she is unhappy and harassed byher in-laws in as much as her mother-in-law does not like thefood she cooks. Again, there is no inference of any demand ofdowry in such letter as well. Therefore, the documentary evidence

in the shape of letters does not support the story of theGprosecution. [Paras 14, 15] [595-E-G; 596-A-C]

1.2 The prosecution has failed to prove either the demandof dowry or that any such demand was raised soon before her

death. Therefore, the essential ingredients of offence underSection 304-B of IPC are not proved by the prosecution. Theprosecution has even failed to prove the initial presumption underSection 113-B of the Evidence Act, 1872. Prosecution has failedto prove the allegations levelled against the appellant beyondreasonable doubt. Consequently, the conviction of the appellantis set aside and he is set at liberty as long as he is not involved inany other case. [Paras 16, 17] [596 D-F]

Satvir Singh & Ors. v. State of Punjab & Anr. (2001) 8SCC 633 : [2001] 3 Suppl. SCR 353 ; Hira Lal & Ors.v. State (Govt. of NCT), Delhi (2003) 8 SCC 80 : [2003]1 Suppl. SCR 734 ; Sakatar Singh & Ors. v. State ofHaryana (2004) 11 SCC 291 ; Major Singh and Anr. v.State of Punjab (2015) 5 SCC 201 : [2015] 5 SCR 777– relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1042 of 2012

From the Judgment and Order dated 21.01.2009 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 128-SBof 1996.

D. N. Goburdhan, Adv. for the Appellant.

Shekhar Raj Sharma, Vishwa Pal Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. This appeal has been preferred against the judgment dated21.01.2009, passed by the High Court of Punjab and Haryana atChandigarh, by which the High Court has allowed the appeal of Savitri

ADevi, mother of the appellant and affirmed the conviction of the appel-lant passed by trial court on 12.12.1995 for the offence punishable underSection 304-B IPC. However, the High Court has reduced the sen-tence of the appellant from ten years to seven years looking to the factthat the appellant had suffered protracted trial of more than 15 years.

B2. The prosecution was set in motion on the statement of PW3Sohan Lal/Complainant - father of the deceased as recorded by theInvestigating Officer Assim Khan PW9. The Complainant stated thatMahesh Kumar got married to the deceased Omwati on 26.05.1991.But soon after the marriage, she was illtreated by her husband MaheshKumar, father-in-law Rajpal, mother-in-law Smt. Savitri and sister-in-Claw Kamlesh, as they demanded dowry. Complainant further claimsthat he gave dowry more than his capacity, even gave the accused agold chain after one year of marriage, but they were still not satisfiedand therefore they would beat the deceased. The deceased sent letterto the complainant informing him about the same, after which, theDcomplainant went to the village where his daughter was residing, mether and her in-laws and informed them that he was unable to satisfytheir demand of dowry as it was beyond his capacity and that his daughtershould not be harassed for bringing insufficient dowry. The complainantstates that the deceased’s in-laws had tendered an apology at that timeand her father-in-law executed the same in writing and promised toEsend her to her parental home on Raksha Bandhan. Subsequently, afterthe festival, she was sent back to her matrimonial house with the appellant,and at that time the complainant had given them sum of Rs.1,000/- incash. After about ten months, the appellant left the deceased at herbrother Rajbir’s house and demanded Rs.5,000/-. It is further claimedFthat, on 03.02.1994, the Complainant paid Rs.2,000/- to the appellantwhen he came to take the deceased back with him and promised to paythe remaining amount soon, after arranging the same. At that time, thedeceased had apparently expressed apprehension that her in-laws wouldnot allow her to live, lest the demands are met. It was on 08.02.1994,that the complainant received information that his daughter, had expiredGin Civil Hospital, Gurgaon, and alleges that the same was caused by theadministration of poison by the accused. An FIR was thus lodged on09.02.1994, against the appellant, the deceased’s father-in-law Rajpal,mother-in-law Smt. Savitri and sister-in-law Kamlesh.

3. The investigation was conducted by Investigating Officer AssimKhan PW9 and all the four accused were arrested. After completinginvestigation, report was filed in the Court of Judicial Magistrate FirstClass, Gurgaon who committed the case to the trial court. The chargewas framed against all the four accused under Section 304-B IPC. Allthe accused pleaded not guilty and claimed trial. The prosecution examinedten witnesses in all.

4. The trial court held that the letters written by the deceasedwith oral evidence in the form of statements of Complainant PW3 –Sohan Lal and PW4- Rajbir, brother of the deceased, are sufficient toestablish that deceased was continuously harassed and met with crueltyon account of dowry and as such it is case of dowry death. The trialcourt had come to the conclusion that the prosecution has proved itscase only against Appellant/Mahesh Kumar, husband of the deceasedand Savitri Devi, mother-in-law of the deceased whereas in respect ofaccused Rajpal and Kamlesh, the trial court held that no specific role isassigned to them and, therefore, they were given benefit of doubt andwere acquitted.

5.Aggrieved against the order of trial court, accused MaheshKumar and Savitri Devi filed an appeal before the High Court of Punjaband Haryana. The High Court, while granting benefit of doubt to accusedSavitri Devi, allowed her appeal and acquitted her of the charges whereassentence of appellant Mahesh Kumar was reduced to seven years.

6. Aggrieved by the judgment of the High Court, appellant MaheshKumar is in appeal before this Court.

7. Learned counsel appearing for the appellant contends that theessential ingredients of Section 304-B IPC have not been proved by theprosecution. The letters produced by the prosecution do not relate todemand of dowry, and any demand for gold chain was made twoyears before the death, and therefore, it cannot be said to be soon beforethe death of the deceased. There is no evidence that there was anydemand for dowry on the part of the family of the appellant soon beforethe death. Thus, offence under Section 304-B is not made out againstthe appellant.

8. The learned counsel appearing for the State contends that thereis no dispute about the fact that the deceased died within 7 years ofmarriage and met with an unnatural death due to organo phosphorus

Apesticide. It is pointed out that the evidence on record is sufficient toestablish beyond doubt that she was met with cruelty continuously aftermarriage on account of dowry.

9. The first and foremost question that arises in this case, and inrespect of the necessary ingredients of Section 304-B IPC, is whetherBthere is proximate nexus between the death of the deceased with thecruelty or harassment inflicted upon her in respect of the demand ofdowry. Section 304-B reads as under:

“304-B. Dowry death.—(1) Where the death of woman iscaused by any burns or bodily injury or occurs otherwise thanCunder normal circumstances within seven years of her marriageand 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 deathshall be called ‘dowry death’, and such husband or relative shallbe deemed to have caused her death.DExplanation.—For the purpose of this sub-section, ‘dowry’ shallhave the same meaning as in Section 2 of the Dowry ProhibitionAct, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with impris-onment for term which shall not be less than seven years butEwhich may extend to imprisonment for life.”

10) This Court in Satvir Singh & Ors. v. State of Punjab &Anr.[1] examining the significance and implication of the use of the words‘soon before her death’ in Section 304-B, has held as under:

F“20. Prosecution, in case of offence under Section 304-B IPCcannot escape from the burden of proof that the harassment orcruelty was related to the demand for dowry and also that suchcruelty or harassment was caused “soon before her death”. Theword “dowry” in Section 304-B has to be understood as it is definedin Section 2 of the Dowry Prohibition Act, 1961. That definitionGreads thus:

“2. In this Act, ‘dowry’ means any property or valuable securitygiven 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 otherperson, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with themarriage of the said parties, but does not include dower or mahrin the case of persons to whom the Muslim personal law (Shariat)applies.”

xxxxxx

22. It is not enough that harassment or cruelty was caused to thewoman with demand for dowry at some time, if Section 304-Bis to be invoked. But it should have happened “soon before herdeath”. The said phrase, no doubt, is an elastic expression andcan refer to period either immediately before her death or withina few days or even few weeks before it. But the proximity toher death is the pivot indicated by that expression. The legislativeobject in providing such radius of time by employing the words“soon before her death” is to emphasise the idea that her deathshould, in all probabilities, have been the aftermath of such crueltyor harassment. In other words, there should be perceptible nexusbetween her death and the dowry-related harassment or crueltyinflicted on her. If the interval elapsed between the infliction ofsuch harassment or cruelty and her death is wide the court wouldbe in position to gauge that in all probabilities the harassment orcruelty would not have been the immediate cause of her death. Itis hence for the court to decide, on the facts and circumstancesof each case, whether the said interval in that particular case wassufficient to snuff its cord from the concept “soon before herdeath”.”

11. In Hira Lal & Ors. v. State (Govt. of NCT), Delhi[2], thiscourt held that there must be material to show that soon before herdeath the victim was subjected to cruelty or harassment. The prosecutionhas to rule out the possibility of natural or accidental death so as tobring it within the purview of death occurring otherwise than in normalcircumstances. It was held as under:

CDE

“9. conjoint reading of Section 113-B of the Evidence Act andSection 304-B IPC shows that there must be material to showthat soon before her death the victim was subjected to cruelty orharassment. The prosecution has to rule out the possibility of anatural or accidental death so as to bring it within the purview of“death occurring otherwise than in normal circumstances”. Theexpression “soon before” is very relevant where Section 113-Bof the Evidence Act and Section 304-B IPC are pressed intoservice. The prosecution is obliged to show that soon before theoccurrence there was cruelty or harassment and only in that casepresumption operates. Evidence in that regard has to be led bythe prosecution. “Soon before” is relative term and it woulddepend upon the circumstances of each case and no straitjacketformula can be laid down as to what would constitute period ofsoon before the occurrence. It would be hazardous to indicateany fixed period, and that brings in the importance of proximitytest both for the proof of an offence of dowry death as well as forraising presumption under Section 113-B of the Evidence Act.The expression “soon before her death” used in the substantiveSection 304-B IPC and Section 113-B of the Evidence Act ispresent with the idea of proximity test. No definite period hasbeen indicated and the expression “soon before” is not defined. Areference to the expression “soon before” used in Section 114Illustration (a) of the Evidence Act is relevant. It lays down that acourt may presume that man who is in the possession of goods“soon after the theft, is either the thief or has received the goodsknowing them to be stolen, unless he can account for theirpossession”. The determination of the period which can comewithin the term “soon before” is left to be determined by the courts,depending upon facts and circumstances of each case. Suffice,however, to indicate that the expression “soon before” wouldnormally imply that the interval should not be much between thecruelty or harassment concerned and the death in question. Theremust be existence of proximate and live link between the effectof cruelty based on dowry demand and the death concerned. Ifthe alleged incident of cruelty is remote in time and has becomestale enough not to disturb the mental equilibrium of the womanconcerned, it would be of no consequence.”

12. In Sakatar Singh & Ors. v. State of Haryana[3], the Courtwas examining as to whether, letter written by the deceased disclosesan offence under Section 304 of the IPC. It was held that:

“11. In the above background, we will now consider the evidenceled by the prosecution to establish the charge levelled against theappellants. In this process, we will first examine the letter writtenby the deceased to her mother. Though this letter does not mentionthe date, there is no dispute that the same was posted on 20-5-1986 which is evident from the postal seal found on the envelopewhich would be date prior to the incident leading to the death ofDevinder Kaur and the children. The contents of the letter indicatewhat transpired during her mother’s visit to her in-laws’ houseand does not anywhere even remotely indicate any demand madeby her in-laws. It only reflects the attitude of the deceased towardsher in-laws and that she entertained feeling that her mother wasnot properly treated by her mother-in-law during her last visit…..”13. In Major Singh and Anr. v. State of Punjab[4], the Courtdisbelieved the prosecution’s story for the reason that no independentwitnesses were examined, even though, the witnesses deposed that theMembers of Panchayats were informed about the harassment.

14. In the present case, the prosecution relies upon the statementof PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceasedwhich has been made basis of conviction by courts below. However,we find that such statements are not sufficient to prove that the deceasedwas treated with cruelty relating to demand of dowry soon before herdeath in the absence of independent evidence though available but notexamined. memorandum Ex.PE/1 dt. 25.01.1992 was relied upon andsaid to be executed by the in-laws of the deceased in the presence ofmembers of Panchayat. But none of the Panchayat Members havebeen examined to prove the settlement arrived at. Therefore, the oralstatements cannot be relied upon in view of the letters produced by theprosecution.

15. The prosecution also relies upon letter Ex. PF/1 written by thedeceased to her father. The letter is to the effect that her in-laws havestarted hating and suspecting the deceased’s father, therefore, he should

3 (2004) 11 SCC 291

4 (2015) 5 SCC 201

Anot give them the gold chain but only cash. Such letter does not showthat anything was demanded by the appellant. The date of sending suchletter has not been proved by the prosecution, therefore, it cannot besaid that such letter was written soon before her death. Similarly, anotherletter produced by the prosecution is Ex. PK/1 which is letter of thedeceased to her brother-in-law(sisters-husband) stating that she has noBproblem with her mother-in-law and sister-in-law but her husband beatsher daily. The date of this letter has not been proved nor does such letterlead to any inference for the demand of dowry by the husband of thedeceased. Further, an additional letter relied upon by the prosecution isEx. PG/1 dated 25.05.1992, wherein the deceased has written that sheCis unhappy and harassed by her in-laws in as much as her mother-in-lawdoes not like the food she cooks. Again, there is no inference of anydemand of dowry in such letter as well. Therefore, the documentaryevidence in the shape of letters does not support the story of theprosecution.

D16. In view of the judgments referred to above, the prosecutionhas failed to prove either the demand of dowry or that any such demandwas raised soon before her death. Therefore, the essential ingredientsof offence under Section 304-B of IPC are not proved by the prosecution.The prosecution has even failed to prove the initial presumption underSection 113-B of the Evidence Act.E

17. We find that the prosecution has failed to prove the allegationslevelled against the appellant beyond reasonable doubt. Consequently,we allow the present appeal and set aside the conviction of the appellantand set him at liberty as long as he is not involved in any other case. Bailbonds shall stand discharged.

Divya Pandey

Appeal allowed.