RAJEEV KUMARversusSTATE OF HARYANA

                   [2013] 12 S.C.R. 251

                     RAJEEV KUMAR                                  A
                              v.
                   STATE OF HARYANA
            (Criminal Appeal No. 967 of 2005)
                    OCTOBER 31, 2013
                                                                   B
    [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

    PENAL CODE, 1860:

     s.304-8 - Dowry death - Held: One of the essential            c
ingredients of the offence of dowry death uls 304-8 is that the
accused must have subjected a woman to cruelty in
connection with demand of dowry soon before her death - In
the instant case, contents of dying declaration do not establish
that deceased was harassed for dowry soon before her death         0
- The statement of the father of deceased indicates that soon
before the death, the appellant had subjected her to cruelty
 which was not in any way connected with the demand of dowry
 - As the essential. ingredient of s. 304-8 has not been
 established by the prosecution, trial court and High Court were   E
 not correct in holding the appellant guilty of offence of dowry
 death uls 3048, /PC - Evidence Act, 1872 - s.113-8.

     ss.498-A and 306 - Cruelty and abetment of suicide -
Held: The dying declaration of the deceased as well as the
evidence of her father are sufficient to establish that the        F
appellant used to fight on petty issut?s and give beatings to
the deceased, which drove her to commit suicide -- This is,
therefore, a clear case where the appellant had committed
offences punishable ulss 498A and 306 - Appellant convicted
u/ss 498-A and 306 and sentenced to imprisonment for one           G
year under the first count and imprisonment for 3 years under
the second count - Evidence Act, 1872 - s. 113-A.

     DYING DECLARATION:
                              251                                  H
    252      SUPREME COURT REPORTS              [2013] 12 S.C.R.


A      Victim of bum injuries - Doctor who examined the injured
  in hospital gave a certificate that she was fit to give statement
  - Larynx and trachea found by post mortem doctor charred
  by heat - Held: The opinions of the two medical experts are
  not in variance of the ocular evidence that the deceased was
B in a position to speak when her dying declarations were
  recorded -- Therefore, the two dying declarations can be relied
  on by the court - Medical Jurisprudence.

       The daughter of PW5 was married to the ar>pellant on
  28.1.1989. On 26.2.1991, she received burn injuries in her
C matrimonial home and succumbed to the injuries in the
  hospital. Prior to her death, at 11.20 P.M. on the same
  date, she gave her statement to the ASI (PW9) that earlier
  the appellant used to tease her for dowry, and he used
  to taunt her on petty matters and because of this she
D sprinkled kerosene on her and set herself on fire. This
  statement was registered as the FIR. Soon thereafter, the
  Judicial Magistrate (PW 8) recorded her statement u/s 164
  Cr.P.C. in which she reiterated her statement given to the
  police. The trial court convicted the appellant u/s 3048
E IPC and sentenced him to RI for 7 years and a fine of Rs.
  2,000/-. The High Court declined to interfere.

       In the instant appeal filed by the accused, it was
  contended for the appellant that the larynx and trachea
F of the deceased were charred by heat and burns and, as
  such, she was not able to speak and the doctor (PW 2)
  was also not present at the time of recording the
  statements of the deceased and, therefore, the dying
  declarations should not be relied on; and that, in any
G case, the finding of the courts below that the appellant
  was harassing the deceased for dowry was not correct.

          Allowing the appeal in part, the Court

      HELD: 1.1 It is clear from the evidence of the PW-2,
H the doctor, who gave the fitness certificate, and PW-8 and
     RAJEEV KUMAR it. STATE OF HARYANA               253


PW-9, (the Judicial Magistrate and the ASI, respectively, A
who recorded the statements of the deceased), that at the
time the statements of the victim were recorded by them,
she was in a fit condition to make the statement. When,
however, the post mortem was carried out on 27.02.1991
by PW-7 at 4.00 P.M. he found that the larynx and trachea B
of the deceased were charred by heat. PW-7, in his
statement has clarified that when the larynx and trachea
 are charred, the person cannot speak, but when the
 larynx and tracheae are in the process of being charred,
 the person can speak. DW-5, the doctor examined by the c
 accused has given his opinion that if the vocal chord of
 larynx is charred, such person may be able to speak, but
 not clearly, and it will be difficult to understand. The
 opinions of the two medical experts, therefore, are not in
 variance of the ocular evidence of PW-2, PW-8 and PW-9 0
 that the deceased was in a position to speak when her
  dying declarations were recorded on the night of
  26.02.1991. Therefore, the two dying declarations can be
  relied on by the court. [para 1O] [262-B-F]
      1.2 It will be clear from the contents of the dying E
 declaration (Ext. PN) that the deceased was fed up with
 the activities of her husband and she poured kerosene
 oil on herself and burnt herself. What those activities of
 the appellant were which prompted her to commit suicide
 have not been clearly stated, but she has stated that her F
 husband used to get upset on petty issues. Further, the
 evidence of PW-5, the father of the deceased indicates
 that soon before the death of the deceased, the appellant
 had subjected her to cruelty which was not in any way
  connected with the demand of dowry. [para 11-12] [263- G
  F-H]
     1.3 One of the essential ingredients of the offence of
 dowry death u/s 3048, IPC is that the accused must have
 subjected a woman to cruelty in connection with demand
 of dowry soon before her death and this ingredient has       H
    254     SUPREME COURT REPORTS            [2013] 12 S.C.R.


A to be proved by the prosecution beyond reasonable
  doubt and only then the court will presume u/s 1138 of
  the Evidence Act that the accused has committed the
  offence of dowry death. As this ingredient of s.304-8, IPC,
  has not been established by the prosecution, the trial
B court and the High Court were not correct in holding the
  appellant guilty of the offence of dowry death u/s 3048,
  IPC. [para 12) (265-8-E]
      Bansi Lal v. State of Haryana 2011 (1) SCR 724 = (2011)
  11 SCC 359; and Smt. Shanti and Another v. State of
C Haryana 1990 (2) Suppl. SCR 675 =AIR 1991 SC 1226 -
   distinguished.
       1.4 However, the appellant is certainly guilty of
  offences of abetment of suicide and cruelty. The language
D of s.113-A of the Evidence Act makes it clear that if a
  woman has committed suicide within a perifJd of seven
  years from the date of her marriage and that her husband
  had subjected her to cruelty, the court may presume,
  having regard to all the other circumstances of the case,
E that such suicide had been abetted by her husband. The
  Explanation to s.113-A of the Evidence Act states that for
  the purpose of s.113-A, "cruelty" shall have the same
  meaning as in s.498A, IPC. The Explanation to s.498A,
  IPC, defines 'cruelty' and Clause (a) of the Explanation
  states that cruelty means any willful conduct which is of
F such nature as is likely to drive a woman to commit
  suicide. The dying declaration of the deceased (Ext. PN)
  as well as the evidence of PW-5 are sufficient to establish
  that the appellant used to fight on petty issues and give
  beatings to the deceased, which drove the deceased to
G commit suicide. This is, therefore, a clear case where the
  appellant had committed offences punishable u/ss 498A
  and 306, IPC. [para 15] [267-A-8, E-H; 268-A]
      1.5 In K. Prema S.Rao•, this Court has held that it was
H not necessary to remit the matter to the trial court for
     RAJEEV KUMAR v. STATE OF HARYANA               255

framing a charge u/s 306, IPC, and the accused also A
cannot complain for want of opportunity to defend the
charge u/s 306 IPC, if the facts found in evidence justify
the conviction of the appellant u/ss 498-A and 306, IPC
instead of graver offence u/s 304-B IPC. Therefore, this
Court holds the appellant guilty of offences u/ss 498A B
and 306, IPC. Considering the particular conduct of the
appellant which drove the deceased to commit suicide,
a sentence of one year imprisonment and fine of
Rs.1,0001- is imposed on him for the offence u/s 498A, IPC
 and a sentence of three years imprisonment and fine of c
 Rs.2,000/- for the offence u/s 306, IPC. However, the
 sentences of imprisonment for the two offences will run
 concurrently. [para 16-17] [268-8, C-D, E-G]

   · *K. Prema S. Rao and Another etc. v. Yadla Srinivasa
                                               =
Rao and Others, etc. 2002 (3) Suppl. SCR 339 (2003) 1       D
sec 217 - relied on.
    Sanjiv Kumar v. State of Punjab (2009) 16 SCC 487,
Durga Prasad & Anr. V. State of Madhya Pradesh 2010 (7)
          =
SCR 104 (2010) 9 SCC 73, Gurdeep Singh v. State of          E
                                 =
Punjab & Ors. 2011 (10) SCR 655 (2011) 12 SCC 408 and
Devinder alias Kala Ram & Ors. v. State of Haryana (2012)
10 sec 763 - cited.
                      Case Law Reference:
                                                            F
   (2009) 16 sec 487           cited           para 7
   2010 (7) SCR 104            cited           para 7
   2011 (10) SCR 655           cited           para 7
                                                            G
   (2012) 1o sec 763           cited           para 7
   2011 (1) SCR 724            distinguished    para 9
   1990 (2) Suppl. SCR 675     distinguished    para 9
   2002 (3) Suppl. SCR 339     relied on        para 16     H
    256      SUPREME COURT REPORTS              [2013] 12 S.C.R.


A       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 967 of 2005.

      From the Judgment and order dated 16.09.2004 of the
  High Court of Punjab and Haryana at Chandigarh in Criminal
B Appeal No. 337-SB of 1992.

       S.S. Upadhyay, Kunwar C.M. Khan, Kurnud L. Das, lrshad
    Ahmad for the Appellant.

          Vikas Sharma, Kamal Mohan Gupta for the Respondent.
c         The Judgment of the Court was delivered by

          A.K. PATNAIK, J. 1. This is an appeal by way of special
  leave under Article 136 of the Constitution against the judgment
  dated 16.09.2004 of the Punjab and Haryana High Court in
D Criminal Appeal No.337-SB of 1992.

    Facts:

       2. The facts very briefly are that on 26.02.1991 at 11.20
  P.M., the Assistant Sub-Inspector of Police of Police Station-
E City Dabwali, District Sirsa in Haryana, Madan Lal recorded a
  statement of Vandana at CHC Hospital, Mandi Dabwali. She
  stated that about two years ago, she was married to the
  appellant and the appellant used to taunt her on petty matters
  and earlier the appellant used to tease her for dowry and on
F being fed up with the habits of the appellant, on 26.02.1991
  between 7.00 and 7.30 P.M., she sprinkled kerosene on her
  and set herself on fire. The statement of Vandana was
  registered as First Information Report (FIR) by the S.I. of P.S.
  Dabwali, Kuldeep Singh. Soon thereafter on 26.02.1991, the
G Judicial Magistrate, First Class, R.S. Bagri, recorded a
  statement of Vandana under Section 164 of the Code of
  Criminal Procedure, 1973 (for short 'Cr.P.C.') in which Vandana
  reiterated her statement to the Police. On 27.02.1991 at 2.20
  A.M., Vandana died. Post mortem was ca1Tied out on the body
H
      RAJEEV KUMAR v. STATE OF HARYANA                   257
               [AK. PATNAIK, J.]
of Vandana (hereinafter referred to as 'the deceased') by Dr.    A
S.S. Bansal. The Police then took up the investigation and
submitted a charge-sheet against the appellant.

     3. On 28.08.1991, the Sessions Court framed a charge
under Section 304B, IPC, against the appellant to which the B
appellant pleaded not guilty. At the trial, the prosecution
examined Kedar Nath, who had prepared the scaled plan (Ext.
PA) on the place of occurrence, as PW-1; Dr. R.C. Chaudhary,
Medical Officer, General Hospital, Mandi Dabwali, who had
examined the deceased and found the burn injuries on her body C
as PW-2; S.I. Kuldeep Singh of P.S. Dabwali, who had
registered the FIR as PW-3; the landlord of the house in which
the deceased lived with her husband as PW-4; Niranjan Ram
Gupta, the father of the deceased, as PW-5; Bhupinder Kumar,
the uncle of the deceased as PW-6; Dr. S.S. Bansal, who
conducted the post mortem on the body of the deceased as D
PW-7; R.S. Bagri, the Judicial Magistrate, who recorded the
statement of the deceased under Section 164, Cr.P.C. as PW-
8 and ASI Madan Lal, the Investigating Officer, as PW-9. The
statement of the appellant was recorded under Section 313,
Cr.P.C. In defence, the appellant examined Ramesh Devra as E
 DW-1; Jagdish Kumar as DW-2; Nihal Singh, Assistant Chief
 Medical Officer, Sirsa, as DW-3; Dr. Ajay Kumar Gupta,
 Medical Officer, Civil Hospital, Sirsa, as DW-4 and Dr. J.L.
 Bhutani as DW-5. After considering the evidence and the
 arguments on behalf of the parties, the learned Additional F
 Sessions Judge, Sirsa, in his judgment dated 31.08.1992 held
 that the prosecution has been able to prove the charge against
 the appellant and accordingly convicted him under Section
 304B, IPC. Thereafter, the learned Additional Sessions Judge
 heard the accused on the quantum of sentence and ordered G
 that the appellant be sentenced to seven years R.I. with a fine
 of Rs.2,000/- and in default of payment of fine, to undergo
 further imprisonment of six months.

     4. Aggrieved, the appellant filed Criminal Appeal No.337-       H
    258     SUPREME COURT REPORTS               [2013) 12 S.C.R.


A SB of 1992 before the High Court. After hearing the appeal,
  the High Court in the impugned judgment held that the
  deceased had indicated in her dying declarations (Exts.PG and
  PN) before ASI Madan Lal and the Judicial Magistrate R.S.
  Bagri that she was being harassed by her husband with
B demands of dowry on account of which she had sprinkled
  kerosene on herself before setting herself ablaze. The High
  Court further held that the statement of the deceased in these
  two dying declarations (Exts. PG and PN) that she was being
  harassed for dowry stood corroborated by the evidence of the
c father of the deceased (PW-5) and uncle of the deceased (PW-
  6). The High Court rejected the contention raised on behalf of
  the appellant that the deceased was not in the medical condition
  to speak inasmuch as her larynx and tracheae had been
  charred by burns, relying on the testimony of the medical
D experts Dr. R.C. Chaudhary (PW-2) and Dr. J.L. Bhutani (DW-
  5) as well as the testimony of the ASI Madan Lal (PW-9) and
  the Judicial Magistrate R.S. Bagri (PW-8), who had recorded
  the dying declarations of the deceased. The High Court
  accordingly held that there was no ground to interfere with the
E orders of conviction and sentence passed by the trial court and
  dismissed the criminal appeal of the appellant.

    Contentions of the learned counsel for the parties:

       5. Mr. S.B. Upadhyay, learned counsel for the appellant,
F submitted that the finding in the impugned judgment that the
  appellant was harassing the deceased for dowry is not correct
  inasmuch as PW-4, the landlord of the house in which the
  deceased and her husband were living, has stated in his
  evidence that he did not hear any sort of disharmony or fighting
  between the appellant and the deceased and that they used to
G live and lead a normal married life and both of them were
  blessed with a daughter, who was aged about six to seven
  months. He further submitted that when the .Judicial Magistrate
  (PW-8) recorded the statement of the deceased under Section
H 164, Cr.P.C., Dr. R.C. Chaudhary (PW-2) was not present, as
      RAJEEV KUMAR v. STATE OF HARYANA                     259
               [A.K. PATNAIK, J.]
will be evident from the evidence of PW-8. He submitted that A
PW-2, on the other hand, was the doctor who issued the fitness
certificate to the Judicial Magistrate that the deceased was in
a fit state to give the statement. He referred to the opinion of
Dr. S.S. Bansal (PW-7) to submit that the larynx and tracheae
is a voice box containing vocal cords through which a man B
speaks and if they were charred by heat and burns, a person
will not be able to speak. He submitted that DW-2 was present
in the hospital for the whole night on 26.02.1991 and DW-2 has
stated that the deceased was not in a position to speak when
the alleged dying declarations are said to have been made. He c
submitted that the trial court and the High Court, therefore, were
 not correct in relying on the dying declarations of the deceased
 recorded by the ASI Madan Lal and the Judicial Magistrate R.s:
 Bagri for holding the appellant guilty.

     6. Mr. Upadhyay next submitted that on a reading of the D
entire evidence of PW-5 (the father of the deceased), it will be
clear that the appellant and the deceased were happy with
each other and this will also be evident from the letters
exchanged between the family members between March 1989
and January 1991 (Exts. DE/2, DE/6, DE/7, DE/9, DE/12, DE/ E
15, DE/17, DE/18, DE/19, DE/20, DE/21, DE/22 and DE/23).
He submitted that this is, therefore, not a case where the
appellant had made any demand of dowry on the deceased and
had subjected the deceased to any cruelty or harassment in
connection with the demand of dowry soon before her death F
and hence the ingredients of the offence under Section 3048,
IPC, are missing in this case and, therefore, the appellant could
not have been held guilty under Section 3048, IPC.

     7. Mr. Upadhyay cited the decisions of this Court in Sanjiv   G
 Kumar v. State of Punjab ((2009) 16 SCC 487), Durga Prasad
 & Anr. v. State of Madhya Pradesh ((2010) 9 SCC 73),
 Gurdeep Singh v. State of Punjab & Ors. ((2011) 12 SCC 408)
 and Devinder alias Kala Ram & Ors. v. State of Haryana
 (2012) 10 SCC 763) in support of his submission that the          H
    260      SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A offence under Section 3048, IPC, is not made out against the
  appellant. He submitted that at the worst the appellant can be
  held guilty under Section 306, IPC, for having abetted suicide
  by the deceased if the dying declaration is to be accepted. He
  argued that the appellant has already undergone two years
B imprisonment and is now on bail and also has a young daughter
  to take care of and, therefore, the appellant should not be
  subjected to further imprisonment for the offence under Section
  306, IPC.
          8. Mr. Vikas Sharma, learned counsel appearing for the
C   State of Haryana, on the other hand, submitted that the two
    dying declarations (Ext. PG and PN) of the deceased are clear
    that the appellant used to harass the deceased for dowry and
    being fed up with the habits of the appellant, th'~ deceased
    sprinkled kerosene oil on herself and set herself ablaze. He
D   submitted that the evidence of Dr. S.S. Bansal (PW-7) is clear
    that one can speak when the larynx and tracheae are in fhe
    process of being charred. He submitted that even DW-5, the
    medical expert produced by the accused in his defence, has
    admitted in cross-examination that in case of charring of vocal
E   chords, the patient may be able to speak and the trial court has
    relied on this admission made by DW-5. He submitted that Dr.
    R.C. Chaudhary has also deposed that the deceased was fit
    to make the statement. He submitted that both these witnesses
    were medical experts and were rightly relied on by the trial court
F   and the High Court to reject the contention of the appellant that
    the deceased was not in a fit condition to give the statements
    to ASI Madan Lal and the Judicial Magistrate R.S. Bagri. Mr.
    Sharma also relied on the evidence of PW-5 that the appellant
    used to give beatings to the deceased and demand more and
G   more dowry. He submitted that the trial court and the High Court
    were therefore right in holding the appellant guilty of the offence
    under Section 3048 IPC.
       9. Mr. Sharma cited the decision of this Court in Bansi Lal
  v. State of Haryana ((2011) 11 SCC 359] in which it has been
H held that while considering a case under Section 3048, LPC.
      RAJEEV KUMAR v. STATE OF HARYANA                       261
               [A.K. PATNAIK, J.]
cruelty in connection with demand of dowry has to be proved          A
in close proximity to the time of death because of the
expression "soon before her death" in Section 3048 IPC, and
the Court has to analyse the facts and circumstances of each
case leading to the death of the victim and decide if there is
such proximate connection between the act of cruelty in              9
connection with demand of dowry and death of the woman. He
also cited the decision of this Court in Smt. Shanti and Another
 v. State of Haryana [AIR 1991 SC 1226] for the proposition
that once the death of a woman is found to be unnatural, either
 homicidal or suicidal, Section 3048, IPC, has to be attracted.      C

Findings of the Court:

      10. The first question that we have to decide is whether
the deceased was in a condition to make tht3 dying declarations
(Exts.PG and PN) before ASI Madan Lal and the Judicial               D
Magistrate R.S. 8agri when her larynx and tracheae had been
affected by burns. PW-2, Dr. R.C. Chaudhary, has stated in his
evidence that on 26.02.1991, on the application of the Police
(Ext.PD), he gave his opinion in Ext.PD/1 to the effect that the
patient was fit to give her statement and this opinion was given     E
at 10.30 P.M. PW-9, ASI Madan Lal, has deposed in his
evidence that the doctor vide his endorsement (Ext.PD/1)
declared that Vandana was fit to give her statement and then
he recorded the statement of Vandana (Ext.PG) correctly and
after Vandana admitted the contents of the statement to be           F
correct, she gave her thumb impression in Ext.PG in token of
its correctness. PW-9 has further stated that at that time
Vandana was living and taking long sigh and she remained
 conscious at the time of giving her statement (Ext. PG). PW-9
 has also stated that he then went to the Judicial Magistrate R.S.   G
 8agri (PW-8) whose residence was near the hospital and
 R.S.8agri accompanied him to the hospital and recorded the
 statement of Vandana. The Judicial Magistrate R.S. 8agri has
 accordingly deposed that ASI Madan Lal had approached him
 in person at his residence at 10.40 P.M. along with application
                                                                     H
    262     SUPREME COURT REPORTS                [2013] 12 S.C.R.


A (Ext.PM) and he came to the hospital and moved an application
  (Ext.PM/1) to the Medical Officer concerned and thereafter he
  recorded her statement and at the time of recording the
  statement, Dr. R.C. Chaudhary was not present but he had
  given a certificate (Ext.PM/2) on the application (Ext.PM/1) that
B Vandana was in a fit state to make a statement and she
  continued to be so during the making of the statement. It is thus
  clear from the evidence of the aforesaid three witnesses PW-
  2, PW-8 and PW-9 that at the time the statements of Vandana
  were recorded by ASI Madan Lal (PW-9) and the Judicial
C Magistrate R.S. Bagri (PW-8), she was in a fit condition to
  make the statement. When, however, the post mortem was
  carried out on 27.02.1991 by Dr.S.S. Bansal (PW-7) at 4.00
  P.M. he found that the larynx and tracheae of the deceased
  were charred by heat. On questions being put to him whether
  a person will be able to speak when her larynx and tracheae
D were charred by heat, PW-7 has clarified that when the larynx
  and tracheae are charred, the person cannot speak, but when
  the larynx and tracheae are in the process of being charred,
  the person can speak. Dr. J.L. Bhutani, DW-5, has given his
  opinion that if the vocal chord of larynx is charred, such person
E may be able to speak, but not clearly, and it will be difficult to
  understand. The opinions of the two medical experts, therefore,
  are not in variance of the ocular evidence of PW-2, PW-8 and
  PW-9 that Vandana was in a position to speak when her dying
  declarations were recorded on the night of 26.02.1991. Hence,
F the two dying declarations (Ext.PG and Ext.PN) can be relied
  on by the Court.
       11. The next question which we have to decide is whether
  the prosecution has been able to prove beyond reasonable
G doubt that the appellant has committed the offence of dowry
  death under Section 3048, IPC. The two dying declarations are
  similarly worded. We, therefore, extract h1~reinbelow only the
  dying declaration which was recorded by the Judicial
  Magistrate (Ext. PN):
H
     RAJEEV KUMAR v. STATE OF HARYANA                       263
              [A.K. PATNAIK, J.]
    "Statement of Vandana, w/o Rajiv Singla, age 23                 A
    years, occupation house wife, Rio Oabwali, u/s 164
    Cr.P.C.

    I was married to Dr. Rajiv Singla 2 years back. My husband
    used to get upset on petty issues. My in-laws lived
    separately. They are living after the 6 months of my
                                                                    8
    marriage. My daughter is of 2 months. Today about 7.30
    p.m., in evening I was fed up with activities of my husband
    and put on kerosene oil and burn myself. Earlier my
    husband used to taunt me for dowry. Action should be
    taken against my husband.                                       C

                                              Sd/- R.C. Bangri
    RO &AC                                              JMIC
                                              Dabwali, 26-2-91
                                                                    D
    RTlofVandana
    Identified
    Sd/-
    Madan Lal, ASI
    P.C. City Dabwali,
    Dated: 26-2-91"                                                 E

It will be clear from the contents of the dying declaration (Ext,
PN) that the deceased was fed up with the activities of her
husband and she poured kerosene oil on herself and burnt
herself. What those activities of the appellant were which          F
prompted her to commit suicide have not been clearly stated,
11ut she has stated that her husband used to get upset on petty
issues and earlier her husband used to taunt her for dowry.

     12. When, however, we scrutinize the evidence of PW-5,         G
the father of the deceased, we find that soon before the death
of the deceased, the appellant had subjected the deceased to
cruelty which was not in any way connected with the demand
of dowry. The relevant part of the evidence of PW-5 is quoted
hereinbelow:
                                                                    H
    264       SUPREME COURT REPORTS                [2013] 12 S~C.R.


A         "Smt. Vandhana deceased was my daughter. I had
          married my daughter Vandhana with Rajiv Kumar, accused
          now present in the Court on 28.01.1989 at Kartarpur. Out
          of her wed lock with the accused Rajiv Kumar, a female
          child was born on 2.7.90. Vandhana deceased and Rajiv
B         Kumar accused, her husband used to reside/live in Mandi
          Dabwali. After marriage, whenever Vandhana used to
          come to tell us, she used to tell me that her husband Rajiv
          Kumar gives her beating and demands more and more
          dowry. We used to fulfill the demand of Rajiv Kumar
          accused in the shape of dowry put forward before us by
c         my daughter and used to send her back after advising her
          that she is to live with her husband and should try to adjust
          with him. On 19.2.91 Vandhana came to me at Kartarpur
          and told me that two days prior to 19.2.91, Rajiv Kumar
          accused her husband gave her merciless beating. She
D         narrated this to me in the presence of my wife Smt. Pushpa
          Rani and Bhupinder Singh my brother in fact, he is my
          friend. On the night of 24.2.91, I had received anonymous
          telephone call on the telephone no. 242 that Raj iv Kumar
          has fled away leaving his minor daughter alone. On hearing
E         this, my daughter Vandhana got perturbed and wanted us
          to leave her at Mandi Dabwali immediately. On 25.02.91
          (25.2.91) we left Vandhana at Mandi Dabwali. I was
          accompanied by my wife Pushpa Rani and Bhupinder
          Kumar. On reaching at Dabwali we found Rajiv Kumar
F         present in his clinic and later on he came to the house. We
          told Rajiv Kumar that he should not repeatedly give beating
          to Vandhana. We told him that it was not proper for him to
          do so. We also advised our daughter Vandhana to adjust
          with her husband and to remain calm and quiE~t and not to
G         speak. On 25.2.91 itself after advising Rajiv Kumar and
          Vandhana we came back to Kartarpur after staying at night
          at Bhatinda. On 27.2.91, I received a telephonic message
          that Vandhana after sprinkling kerosene oil on her body
          has put herself fire and that she is dead and no longer
H         alive."
      RAJEEV KUMAR v. STATE OF HARYANA                     265
               (A.K. PATNAIK, J.]
From the aforesaid evidence of PW-5, it is clear that the A
marriage between the appellant and the deceased took place
on 28.01.1989 and the demand of dowry by the appellant and
the beatings for more dowry was after the marriage. PW-5 has
also stated that on 19.02.1991 the deceased came to him at
Kartarpur and told him that two days prior to 19.02.1991, the B
appellant gave her merciless beating. PW-5 has, however, not
stated that the beating that the appellant gave to the deceased
on 19.02.1991 was in connection with demand of dowry. One
of the essential ingredients of the offence of dowry death under
 Section 3048, IPC is that the accused must have subjected a      c
woman to cruelty in connection with demand of dowry soon
 before her death and this ingredient has to be proved by the
 prosecution beyond reasonable doubt and only then the Court
 will presume that the accused has committed the offence of
 dowry death under Section 1138 of the Indian Evidence Act.
                                                                    D
 As this ingredient of Section 3048, IPC, has not been
 established by the prosecution, the trial court and the High Court
 were not correct in holding the appellant guilty of the offence of
 dowry death under Section 3048, IPC.

      13. We have perused the decision of this Court in Smt. E
Shanti and Another v. State of Haryana (supra) cited by Mr.
Sharma and we find that in the aforesaid case the facts were
that Smt. Shanti was mother-in-law of the deceased and Sm!.
Krishna was another inmate in the matrimonial home in which
the deceased was living and it was alleged that both Smt. F
Shanti and Smt. Krishna were harassing the deceased all the
while after the marriage for not bringing a scooter and television
as part of the dowry and she was treated cruelly. On
26.04.1988 at about 11.00 P .M., the father of the deceased
came to know that the deceased had been murdered and was G
 cremated by two ladies and he filed a report accordingly before
 the police. Both the courts below held that the two ladies did
 not send the deceased to her parents house and drove out the
 brother and father of the deceased complaining that a scooter
 and a television has not been given as dowry. The evidence of H
    266 ·    SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A the father, mother and brother of the deceased was that they
  were not even informed soon after the death of the deceased
  and the appellants had hurrieqly cremated the dead body. In
  these circumstances, this Court held that the presumption under
  Section 113-8 of the Indian Evidence Act that the two ladies
8 have committed the offence under Section :3048, IPC, was
  attracted. This was, therefore, a case where the evidence clearly
  disclosed that the deceased had been subjected to harassment
  or cruelty committed by the appellants soon before her death.

          14. We have also examined the decision of this Court in
C   Bansi Lal v. State of Haryana (supra), cited by Mr. Sharma,
    and we find that the facts in that case were that the appellant
    8ansi Lal was married to Sarla on 04.04.1988. She was
    subjected to cruelty, harassment and demand of dowry and on
    25.06.1991 she died. After investigation of the case,
D   prosecution filed a charge-sheet against Bansi Lal and his
    mother Sm!. Shanti Devi and charges were framed against
    them under Sections 498A, 3048 and 306, IPC, and they were
    convicted for the said charges by the trial court. The High Court,
    however, acquitted Smt. Shanti Devi, but convicted 8ansi Lal
E   because of demand of dowry and cruelty in connection with
    demand of dowry to which the deceased was subjected to by
    him. 8ansi Lal had made a statement under Section 313,
    Cr.P.C. that Sarla was in love with some other person but she
    was forced to marry 8ansi Lal against her will due to which she
F   felt suffocated and committed suicide, leaving a suicide note
    to that effect. On these facts, this Court held that once it is
    shown that soon before her death the deceased has been
    subjected to cruelty or harassment for or in 1::onnection with the
    demand for dowry, the Court shall presume that such person
G   has caused the dowry death under Section 113-8 of the
    Evidence Act, and if the case of the 8ansi Lal was that Sarla
    has committed suicide, the onus was on him to establish his
    defence by leading sufficient evidence to reout the presumption
    that he has not caused the dowry death, but 8ansi Lal has failed
H   to discharge that onus.
      RAJEEV KUMAR v. STATE OF HARYANA                     267
               [AK. PATNAIK, J.]
      15. On the evidence on record, though the appellant is not   A
guilty of the offence under Section 3048, IPC, he is certainly
guilty of offences of abetment of suicide and cruelty. Section
113-A of the Indian Evidence Act states as follows:

    "113A. Presumption as to abetment of suicide by_ a
    married woman.-When the question is whether the
                                                               8
    commission of suicide by a woman had been abetted by
    her husband or any relative of her husband and it is shown
    that she had committed suicide within a period of seven
    years from the date of her marriage and that her husband
     or such relative of her husband had subjected her to C
     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.
                                                               D
     Explanation.--For the purposes of this section, "cruelty"
     shall have the same meaning as in section 498A of the
     Indian Penal Code"
 The language of Section 113-A of the Indian Evidence Act
 makes it clear that if a woman has committed suicide within a E
 period of seven years from the date of her marriage and that
 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. The
 Explanation to Section 113-A of the Indian Evidence Act states F
 that for the purpose of Section 113-A "cruelty" shall have the
 same meaning as in Section 498A, IPC. The Explanation to
 Section 498A, IPC, defines 'cruelty' and Clause (a) of the
 Explanation states that cruelty means any willful conduct which
 is of such nature as likely to drive a woman to commit suicide. G
 The dying declaration of the deceased (Ext. PN) as well as the
 evidence of PW-5 extracted above are sufficient to establish
 that the appellant used to fight on petty issues and give beatings
  to the deceased, which drove the deceased to commit suicide.
  This is, therefore, a clear case where the appellant had H
    268        SUPREME COURT REPORTS               [2013] 12 S.C.R.


A committed offences under Sections 498A and 306, IPC.
       16. In K. Prema S. Rao and Another, etc. v. Yadla
  Srinivasa Rao and Others, etc. [(2003) 1 SCC 217], this Court
  on similar facts has held that to attract the provisions of Section
  3048, IPC, one of the main ingredients of the offence, which
B is required to be established, is that "soon before her death"
  she was subjected to cruelty and harassment "in connection
  with the demand for dowry" and this ingredient of the offence
  was not there in that case. This Court, however, held that it was
  not necessary to remit the matter to the trial court for framing a
c charge under Section 306, IPC, and the accused also cannot
  complain for want of opportunity to defend the cha~ge under
  Section 306, IPC, if the facts found in evidence justify the
  conviction of the appellant under Sections 498A and 306, IPC
  instead of the graver offence under Section 3048, IPC. In that
D case, the three-Judge Bench of this Court held the appellant
  guilty of the offences under Sections 498A and 306, IPC
  instead of the graver offence under Section 3048, IPC.

         17. In this case also, we hold the appellant guilty of
E offences under Sections 498A and 306, IPC. Considering the
  particular conduct of the appellant which drove the deceased
  to commit suicide, we impose a sentence of one year
  imprisonment and fine of Rs.1,000/- for the offence under
  Section 498A, IPC and impose a sentence of three years
  imprisonment and fine of Rs.2,000/- for the offence under
F Section 306, IPC, and direct that in case of failure to pay the
  fine for either of the two offences, the appellant shall undergo
  a further imprisonment for a period of six months. We make it
  clear that the sentences of imprisonment for the two offences
  will run concurrently. If the appellant has already undergone the
                                                                         •
G punishment imposed by this judgment, his bail bonds shall
  stand discharged.

           18. The appeal is allowed to that extent.
                                                                         •
H
    R.P.                                               Appeal allowed.