HIRA LAL AND ORS.versusSTATE (GOVT. OF NCT) DELHI.

A                              HIRA LAL AND ORS.

                         STA TE (GOVT. OF NCT) DELHI.

                                   JULY 25, 2003

B               [DORAISWAMY RAJU AND ARIJIT PASA VAT, JJ.]


         Indian Penal Code, 1860; Sections 304-B, 306 and 498-A:

          Dowry death-Wife subjected to torture for dowry by the husband and
C   his parents-Committed suicide within 7 years of her marriage-Trial Court
    convicted the husband and In-laws under Sect10ns 304-B and 498-A/34-
    Sentence reduced by High Court-On appeal, Held: Jn the absence of definite
    evidence about ill-treatment to the deceased wife at any time having immediate
    proximity to the time of her death, the basic requirement of Section 304-B
D   not complied with-Not liable under Section 304-B-However, on the facts
    and circumstances of the case, accused convicted under Section 306 IPC-
    Conviction under Section 498-A maintained-Evidence Act-Section I I 3-
    B-Dowry Prohibition (Amendment) Act, 1986.

          Words and Phrases:
E
         'proximity test', 'soon before her death', 'cruelty', 'harassment'-
    Meaning of in the context of Evidence Act.

          Deceased-wife had been tortured for dowry by the accused-husband and
    his parents. She committed suicide by consuming poison. Police investigated
F   the matter and submitted a charge sheet. Trial Court found accused guilty of
    having committed the offences under Sections 304-B and 498A r/w Section
    34 IPC and sentenced them accordingly. On appeal, High Court maintained
    the conviction, but reduced the sentence.

          In the present appeal by the accused, it was contended that there was no
G evidence as to demand of dowry by the accused; and that since admittedly there
    was no demand of dowry from the elder sister of the deceased who was married     •
    on the same date to the elder brother of the husband of the deceased, there
    was no reason to believe demand of dowry from the deceased.


H                                        734
                        HIRA LAL v. STA TE OF DELHI                       735
     On behalf of the State, it was submitted that the case could be considered   A
under Section 306 IPC.

      Disposing of the appeal, the Court

      HELD: 1.1. Section 113-B of the Evidence Act and Section 304-B IPC
shows that there must be material to show that soon before the death the victim B
was subjected to cruelty or harassment. Prosecution has to rule out the
possibility of a natural or accidental death so as to bring it within the purview
of 'death occurring otherwise than in normal circumstances'. The expression
'soon before' is very relevant where Section 113-B of the Evidence Act and
Section 304-B IPC are pressed into service. Prosecution is obliged to show C
that soon before the occurrence there was cruelty or harassment and only in
that case presumption operates. Evidence in that regard has to be led by
prosecution. 'Soon before' is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid down as
to what would constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in the importance of a D
proximity test both for the proof of an offence of dowry death as well as for
raising a presumption under Section 113-B of the Evidence Act. The
determination of the period which can come within the term 'soon before' is
left to be determined by the Courts, depending upon the facts and
circumstances of each case. The expression 'soon before' would normally
imply that the interval should not be much between the concerned cruelty or E
harassment and the death in question. There must be existence of a proximate
and live-link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and has
become stale enough not to disturb mental equilibrium of the woman
concerned, it would be of no consequence. (740-F-H; 741-A; 741-C-DI               p
      1.2. The evidence of Prosecution Witnesses shows that at the time of
marriage there was no demand for dowry. But subsequently, the demands were
made, and ill-treatments were meted out. Prosecution Witnesses stated that
grievances were made before the Crime against Women Cell and the
authorities brought about reconciliation. It, however, was candidly admitted G
that there was no mention about any dowry aspect while the differences were
ironed out. There is no definite evidence about ill-treatment to the deceased
at any time having immediate proximity to the date of death of the deceased
about ill-treatment by the accused persons to attach culpability under Section
304-B IPC. Therefore, the basic requirement of cruelty or harassment soon H
    736                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A   before the death to bring application of Section 304-B is absent.1741-E-GJ

          1.3. Sections 304-B and 498-A IPC cannot be held to be mutually
    inclusive. These provisions deal with two distinct offences. It is true that
    cruelty is a common essential to both the Sections and that has to be proved.
    But having regard to common background to these offences it has to be taken
B   that the meaning of 'cruelty' or 'harassment' is the same as prescribed in
    the Explanation to Section 498-A under which 'cruelty' by itself amounts to
    an offence. Under Section 304-B it is 'dowry death' that is punishable and
    such death should have occurred within seven years of marriage. No such
    period is mentioned in Section 498-A. A person charged and acquitted under
C   Section 304-B can be convicted under Section 498-A without that charge being
    there, if such a case is made out. If the case is established, there can be
    conviction under both the Sections. 1742-E-GJ

         Akula R.avinder and Ors. v. The State of Andhra Pradesh, AIR (1991)
    SC 1142, relied on.
D
            l.4. It may be noted that though no charge was framed under Section
    306 IPC that is inconsequential. On the facts of the present case even though
    it is difficult to sustain the conviction under Section 304-B IPC, there are
    sufficient materials to convict the accused-appellants in terms of Section 306
    IPC along with Section 498A IPC. 1743-H, 744-A-BJ
E
            K. Prema S. Rao and Ors. v. Yadla Srinivasa Rao and Ors., (2003) 1
    sec 217' relied on.
          Satvir Singh and Ors. v. State of Punjab and Anr., 12001 ( 8 SCC 633,
    referred to.
F           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 825 of
    2002.
           From the Judgment and Order dated 25.2.2002 of the Delhi High Court
    in Crl. A. No. 983 of 200 I.

G        Naresh Kaushik and Ms. Shilpa Chauhan for Ms. Lalita Kaushik for the
    Appellants.

         Ashok Bhan, Ms. Varuna Bhandari and Sathis Pillai for Mrs. Anil Katiyar,
    D.S. Mahra for the Respondent.

H           The Judgment of the Court was delivered by
             HIRALALv. STATEOFDELHI [ARl.llTPASAYAT,J.]                  737
      ARIJIT PASA YAT, J. Marriages are made in heaven, is an adage. A A
bride leaves the parental home for the matrimonial home, leaving behind sweet
memories therewith a hope that she will see a new world full of love in her
groom's house. She leaves behind not only her memories, but also her surname,
gotra and maidenhood. She expects not only to be a daughter in law, but a
daughter in fact. Alas! The alarming rise in the number of cases involving B
harassment to the newly wed girls for dowry shatters the dreams. In laws are
characterized to be outlaws for perpetrating a terrorism which destroys
matrimonial home. The terrorist is dowry, and it is spreading tentacles in every
possible direction.

      With a view to curb the spiraling number of cases where demand for C
dowry leads to loss of life, Dowry Prohibition (Amendment) Act 1986 brought
about sweeping changes in the penal statutes, and Sections 304-B of the
Indian Penal Code, 1860 (in short the 'IPC') and Section 1138 of Indian
Evidence Act, 1872 (in short the 'Evidence Act') came to be enforced.

      One Sarita (hereinafter referred to as 'deceased') committed suicide by   D
consuming poison on 14.4.1999. She was married to accused Surender on
26.11.1995. Other appellants Hiralal and Angoori Devi were her father-in-law
and mother-in-law respectively. Since the death was unnatural, information
was lodged with police and investigation was undertaken.

       Grievance was made by the family members of deceased that she was E
subjected to torture for dowry and that led to her suicide. On completion of
investigation, charge-sheet was placed for alleged commission of offences
punishable under Section 304-B and 498A IPC. Trial was conducted by learned
Sessions Judge, New Delhi in Sessions case No. 11/1999 and the appellants
were found guilty under Sections 304-B and 498A read with Section 34 IPC. F
They were sentenced to undergo RI for I0 years and fine of Rs. I 0,000 each
with default stipulation of SI for one year, and also one year RI with fine of
Rs. 5000 with stipulation of SI for one month for the two substantive offences
respectively. It is relevant to note that for substantiating the accusations
twelve witnesses were examined. Bahadur Singh (PW-I), Sobha Rani (PW-5),
Ratti Ram (PW-IO), Manju (PW-11), the father, brother, cousin brother and G
sister, respectively of the deceased spoke about the dowry demands. The
testimony was accepted to be truthful and cogent by the Trial Court.

      The matter was carried in appeal before the Delhi High Court. By the
impugned judgment, learned Single Judge reduced the sentence to 3 years RI
instead of I0 years RI in respect of accused-appellants Hiralal and Angoori H
    738                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A keeping in view their old age. The fine imposed was. maintained but the
    default sentence was reduced to six months, custodial sentence and fine for
    offences punishable under Section 498A were maintained. In case of appellant-
    Surender, the sentence was reduced to 7 years in respect of first offence,
    while for the second offence the sentence was maintained.

B        In support of the appeal, learned counsel for the appellants submitted
  that ingredients of Section 304-B and 498A are not made out. There was no
  evidence regarding any dowry demand. On the contrary it was confirmed that
  at the time of marriage there was no demand for dowry. It is of relevance to
  note that while deceased was married to accused-Surender, her sister, Manju
C (PW-I I) was married to Virender, elder brother of Surender. Both the marriages
  were solemnized on the same date. It has been accepted by the prosecution
  witnesses that there was no demand for valuable articles at any point
  subsequent to the marriage in case of Manju. If the demand was made for
  deceased as alleged, there is no reason as to why a departure was made in
  case of her sister. The evidence of relatives (PW-I, PW-2, PW-10 and PW! I)
D does not inspire any confidence. Before the alleged suicide, there were
  differences between the deceased and her husband for which allegations were
  made with the police. Finally the difference was sorted out by settling that
  they shall stay separately from other members of the family. There was a
  conciliation made by the officials and the conditions indicated related to
E separate residence. There was not even inkling about demand of money or
  articles. This has been categorically accepted by both PWs I0 and 11. It is,
  therefore, submitted that both Trial Court and the High Court fell in grave
  error by going into surmises to convict the appellants.

          In response learned counsel for the State -Govt. of NCT of Delhi,
F submitted that the ingredients of the offences have been clearly made out.
    In any event the case can be considered in terms of Section 306 !PC.

          Section 304-B IPC deals with dowry death reads as follows:

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




                   HIRALALv. STATE OF DELHI [ARI.llTPASAYAT,J.]              739
             Explanation - For the purpose of this sub-section 'dowry' shall have A
             same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28
             of1961),

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

            (i)   The death of a woman should be caused by h,ums or bodily
                  injury or otherwise than under a normal circumstance.
                                                                                     D
            (ii) Such a death should have occurred within seven years of her
                 marriage.
            (iii) She must have been subjected to cruelty or harassment by her
                  husband or any relative of her husband.
            (iv) Such cruelty or harassment should be for or in connection with E
                 demand of dowry.
            (v) Such cruelty or harassment is shown to have been meted out to
                the woman soon before her death.

     Section 113-B of the Evidence Act is also relevant for the case at hand. Both   F
     Section 304-B IPC and Section 113-B of the Evidence Act were inserted as
     noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a
     view to combat the increasing menace of dowry deaths. Section 113-B reads
     as follows:-

             "113-B: Presumption as to dowry death- When the question is whether G
            a person has committed the dowry death of a 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.
                                                                                     H
    740                     SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A           Explanation - For the purposes of this sectio11 'dowry death' shall
            have the same meaning as in Section 304-B of the Indian Penal Code
            (45of1860)."

    The necessity for insertion of the two provisions has been amply analysed
    by the Law Commission of India in its 21st Report dated I 0th August, 1988
B   on 'Dowry Deaths and Law Reform'. Keeping in view the im'pediment in the
    pre-existing law in securing evidence to prove dowry related deaths, legislature
    thought it wise to insert a provision relating to presumption of dowry death
    on proof of certain essentials. It is in this background presumptive Section
    113-B in the Evidence Act has been inserted. As per the definition of 'dowry
C   death' in Section 304-B IPC and the wording in the presumptive Section 113-
    B of the Evidence Act, one of the essential ingredients, amongst others, in
    both the provisions is that the concerned woman must have been "soon
    before her death" subjected to cruelty or harassment "for or in connection
    with the demand of dowry". Presumption under Section 113-B is a presumption
    of law. On proof of the essentials mentioned therein, it becomes obligatory
D   on the Court to raise a presumption that the accused caused the dowry death.
    The presumption shall be raised only on proof of the following essentials:

            (I) The question before the Court must be whether the accused has
            committed the dowry death of a woman. (This means that the
            presumption can be raised only if the accused is being tried for the
E           offence under Section 304-B IPC).

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

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

            (4) Such cruelty or harassment was soon before her death.

        A conjoint reading of Section 113-B of the Evidence Act and Section
  304-B IPC shows that there must be material to show that soon before her
G death the victim was subjected to cruelty or harassment. Prosecution has to
  rule out the possibility of a natural or accidental death so as to bring it within
  the purview of the 'death occurring otherwise than in normal circumstances'.
  The expression 'soon before' is very relevant where Section 113-B of the
  Evidence Act and Section 304-B IPC are pressed into service. Prosecution is
  obliged to show that soon before the occurrence there was cruelty or
H harassment and only in that case presumption operates. Evidence in that
•




                 HIRA LALv. STATE OF DELHI [ARIJITPASAY AT..f.]              741
    regard has to be led by prosecution. 'Soon before' is a relative term and it A
    would depend upon circumstances of each case and no strait-jacket formula
    can be laid down as to what would constitute a period of soon before the
    occurrence. It would be hazardous to indicate any fixed period, and that
    brings in the importance of a proximity test both for the proof of an offence
    of dowry death as well as for raising a presumption under Section 113-B of
    the Evidence Act. The expression 'soon before her death' used in the B
    substantive Section 304-B IPC and Section 113-B of the Evidence Act is
    present with the idea of proximity test. No definite period has been indicated
    and the expression 'soon before' is not defined. A reference to expression
    'soon before' used in Section 114. Illustration (a) of the Evidence Act is
    relevant. It lays down that a Court may presume that a man who is in the C
    possession of goods 'soon after the theft, is either the thief has received the
    goods knowing them to be stolen, unless he can account for his possession.
    The determination of the period which can come within 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'
    would normally imply that the interval shou Id not be much between the D
    concerned cruelty or harassment and the death in question. There must be
    existence of a proximate and live-link between the effect of cruelty based on
    dowry demand and the concerned death. If alleged incident of cruelty is
    remote in time and has become stale enough not to disturb mental equilibrium
    of the woman concerned, it would be of no consequence.                          E
          The evidence of PWs I, 5, 10 and 11 shows that at the time of marriage
    there was no demand for dowry. But subsequently, the demands were made,
    and ill-treatments were meted out. The crucial question is whether they were
    soon before the death. PWs I0 and 11 stated that grievances were made
    before the Crime against Women Cell and the authorities brought about            F
    reconciliation. It however was ca.ndidly admitted that there was no mention
    about any dowry aspect while the differences were ironed out. The settlement
    arrived at on 30.11.1998 was essentially for separate residence. Therefore,
    there is no definite evidence about ill-treatment to the deceased at any time
    having immediate proximity to the date of death of the deceased on 14.4.1999
    about ill-treatment by the accused persons to attach culpability under Section   G
    304-B lPC. Therefore, the basic requirement of cruelty or harassment soon
    before the death to bring application of Section 304-B is absent.

          Further question is whether a case under Section 498-A has been made
    out, even if accusations under Section 304-B fail. Section 498-A reads as        H
    742                     SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A follows:
             "498-A: Husband or relative of husband of a woman subjecting her
             to cruelty- Whoever, being the husband or the relative of the husband
             of a woman, subjects such woman to cruelty shall be punished with
             imprisonment for a term which may extend to three years and shall
B            also be liable to fine.

             Explanation - For the purpose of this section 'cruelty' means -

             (a) any wilful conduct which is of such a nature as is likely to drive
             the woman to commit suicide or to cause grave injury or danger to
C            life, limb or health (whether mental or physical) of the woman; or

             (b) harassment of the woman where such harassment is with a 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."
D Consequences of cruelty which are likely to drive a woman to commit suicide
  or to cause grave injury or danger to life, limb or health, whether mental or
  physical of the woman is required to be establish~d in order to bring home
  the application of Section 498-A IPC. Cruelty has been defined in the
  explanation for the purpose of Section 498-A. Substantive Section 498-A IPC
E and presumptive Section 113-B of the Evidence Act have been inserted in the
  respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to
  be noted that Sections 304-B and 498-A, IPC cannot be held to be mutually
  inclusive. These provisions deal with two distinct offences. It is true that
  cruelty is a .common essential to both the Sections and that has to be proved.
  The explanation to Section 498-A gives the meaning of 'cruelty'. In Section
F 304-B there is no such explanation about the meaning of 'cruelty'. But having
  regard to common background to these offences it has to be taken that the
  meaning of 'cruelty' or 'harassment' is the same as prescribed in the
  Explanation to Section 498-A under which 'cruelty' by itself amounts to an
  offence. Under Section 304-B it is 'dowry death' that is punishable and such
G death should have occurred within seven years of marriage. No such period
  is mentioned in Section 498-A. A person charged and acquitted under Section
  304-B can be convicted under Section 498-A without that charge being there,
  if such a case is made out. If the case is established, there can be a conviction
  under both the sections. (See Akula Ravinder and Ors. v. The State of
  Andhra Pradesh, AIR (1991) SC 1142). Section 498-A IPC and Section 113-
H
             HIRA LALv. STATEOFDELH1 [ARl.llTPASAYAT,J.]                    743

A of the Evidence Act include in their amplitude past events of cruelty. Period     A
of operation of Section 113-A of the Evidence Act is seven years, presumption
arises when a woman committed suicide within a period of seven years from
the date of marriage.

      Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act')
defines "dowry" as under:-                                                          B
        Section 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;      C
            or
            (b) by the parents 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 or any time after the marriage in connection with the
        marriage of the said parties, but does not include dower or mehr in D
        the case of persons to whom the Muslim personal law (Shariat) applies.

        Explanation I- For the removal of doubts, it is hereby declared that
        any presents made at the time of a marriage to either party to the
        marriage in the form of cash, ornaments, clothes or other articles, shall
        not be deemed to be dowry within the meaning of this section, unless        E
        they are made as consideration for the marriage of the said parties.

        Explanation II- The expression '.valuable security' has the same
        meaning in Section 30 of the Indian Penal Code (45 of 1860)."

     As was observed by this Court in Satvir Singh and Ors. v. State of F
Punjab and Anr., [2001) 8 SCC 633, "suicidal death" of a married woman
within seven years of her marriage is covered by the expression "death of a
woman is caused ....... or occurs otherwise than under normal circumstances"
as expressed in Section 3048 IPC.

      Section 306 IPC deals with abetment of suicide. The said provdon G
reads as follows:

        "306: Abetment of suicide - If any person commits suicide, whoever
        abets the commission of such suicide, shall be punished with
        imprisonment of either description for a term which may extend to ten H
        years, and shall also be liable to fine."
    744                     SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A          It may be noted that though no charge was framed under Section 306
    IPC that is inconsequential in view of what has been stated by a three-judge
    Bench of this Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and
    Ors.. [2003) I SCC 217.

        On the facts of the case even though it is difficult to sustain the
B conviction under Section 304B !PC, there are sufficient materials to convict
  the accused-appellants in terms of Section 306 IPC along with Section 498A
  !PC.

             Custodial sentence of three years for the offence punishable under
C Section 306 !PC would meet the ends of justice. The sentence awarded for
    offence punishable under Section 498A by Trial Court and upheld by the
    High Court is maintained. Both the sentences relatable to Sections 498A and
    306 IPC shall run concurrently.

          It may be noted here that the High Court had reduced the sentence to
D   three years from I 0 years in case of accused -appellant Hiralal and Angoori
    Devi, while upholding their conviction under Section 304B IPC. It is unfortunate
    that the High Court failed to notice that the minimum sentence for offence
    punishable under Section 304B is seven years in krms of sub-section (2)
    thereof.

E         Since the appellants I and 2 were released on bail pursuant to the order
    dated 25.10.2002, they shall surrender to serve out the remainder of the
    sentence, if not already served. The appeal is disposed of accordingly.

    S.K.S.                                                    Appeal disposed of.