REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 939 OF 2009
[Arising out of Special Leave Petition (Criminal) No. 4432 of 2008]
SURESH KUMAR SINGH ... APPELLANT
Versus
STATE OF U.P. ... RESPONDENT
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Application of the term `soon before her death’ occurring in Section
304B of the Indian Penal Code (“IPC” for short) in the facts and
circumstances of the present case is the question involved herein.
3. Asha Devi (the deceased) was married to the appellant. The date of
their marriage, however, is in dispute viz. whether the same had taken place
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in the year 1983 or in the year 1987. Asha Devi was found dead on
8.12.1993 having suffered extensive burn injuries.
4. On or about 8.12.1993 at about 5.10 p.m., a First Information Report
(“FIR” for short) was lodged against the appellant and his family members
by Ajmer Singh (P.W.1.), brother of the deceased, inter alia alleging:
“I, Ajmer Singh s/o Ranbahadur Singh R/o Nigohi,
P.S. Deeh Janpad Raebareli, my elder sister Asha
Devi was married in 1987 with Suresh Kumar
Singh s/o Manbodh Singh at village Budhwar, P.S.
Deeh, Janpad Raebareli. After marriage my
brother in law, his younger brother and sister
Kusuma were harassing her and asking for dowry.
My brother in law demanded Rs.5000/- at the time
of marriage of his sister. This was told by my
sister and gave the money. Thereafter demand for
more money, ring and chain was made, in this
regard she was burnt year ago. I had got her treated
and had asked her to live today on 8.12.1993 at
about 12’O clock. One unknown person who is
her neighbour came to my house and informed that
your sister has been done to death and her dead
body is lying and are preparing to cremate her. I
reached the site and saw my sister who was lying
burnt and dead. I believe that Suresh Singh,
Zilajeet Singh S/o Manbodh Singh and their elder
sister Kusuma D/o Manbodh Singh S/o Budhwar,
P.S. Deeh, Distt. Raebareli have burnt and killed
my sister. Therefore, you are requested to lodge
report and prosecute.”
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5. We may furthermore notice the injuries found by the Autopsy
Surgeon in his post mortem examination on the body of the deceased, which
are as under:
“I to III degree burn on front and back of skull,
neck, front and side of whole chest with upper part
of abdomen, let axilla and whole arm and back of
shoulder and scapular region, with exholate and
pus coming out from right elbow region. Total
burn about 40%.
In the opinion of the doctor, the cause of death is shock as a result of
ante mortem burn injuries.
6. The Investigating Officer filed a charge sheet. Cognizance was taken
under Section 304B and Section 498A of the IPC.
The prosecution in support of its case examined four witnesses.
7. The contention raised on behalf of the appellant were: (1) that the
death of the deceased occurred by way of an accident; (2) the marriage
having taken place in the year 1983 that is not within a period of seven years
from the date of her death, Sections 498A and 304B of the IPC were not
applicable.
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8. By reason of a judgment and order dated 30.4.1996, the learned trial
judge while acquitting Smt. Kusuma Devi and Zila Jeet Singh convicted the
appellant under Section 304B and 498A of the IPC and sentenced him to
undergo rigorous imprisonment for seven years for the offence under
Section 304B IPC and to undergo three years rigorous imprisonment and a
fine of Rs.2000/- for the offence under Section 498A IPC inter alia holding:
(i) The marriage had taken place in the year 1987.
(ii) The prosecution has not been able to prove demand of dowry
from the family members of the deceased.
(iii) Appellant had made an attempt to cause burn injuries to her one
year prior to the date of occurrence.
9. An appeal preferred thereagainst by the appellant has been dismissed
by reason of the impugned judgment.
10. Mr. Naveen Kumar Singh, learned counsel appearing on behalf of the
appellant inter alia would submit:
(i) that the trial court and consequently the High Court committed
a serious error in passing the impugned judgments insofar as
5they failed to take into consideration that sufficient evidence
had been brought on record to show that marriage took place in
the year 1983 and not in the year 1987 and, thus, no
presumption as envisaged in Section 113A or Section 113B of
the Indian Evidence Act, 1972 could have been invoked.
(ii) No evidence having been adduced to show that the deceased
was subjected to any cruelty soon before her death, the
impugned judgments are unsustainable.
11. Mr. Pramod Swarup, learned counsel appearing on behalf of the
respondent, on the other hand, would urge:
(i) In view of the concurrent findings of fact arrived at by the two
courts below, no interference therewith by this Court is
warranted.
(ii) The term `soon before her death’ do not envisage any fixed
term and appropriate meaning should be assigned thereto
having regard to the facts and circumstances of each case.
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(iii) As demand of dowry had been made and an attempt was also
made to cause burn injuries to her one year prior to the incident
in question, the impugned judgments are unassailable.
12. Before adverting to the legal contentions raised herein, we may notice
the deposition of the first informant – Ajmer Singh. According to him, the
marriage took place sometime in April – May 1987. Dowry demands of the
family of the appellant could not be fulfilled at that time. One month after
the marriage, she came back to her maternal home and told her mother and
other female members that the appellant and his family members had
demanded a chain and a ring and also assaulted her. Six months thereafter
allegedly while `Gauna’ ceremony was being performed, he was informed
by the deceased that they should give her a ring and a chain as otherwise the
appellant would kill her. He was informed by daughter of `Maiku’ who was
married in the village of appellant that one year before the death of the
deceased, accused persons had burnt her. She had brought the deceased and
got her treated by Dr. Chedi Singh. Accused persons did not provide her any
treatment and the deceased had a big wound. After healing she sent the
deceased back with the cousin of appellant and thereafter the deceased was
in the house of her husband for six months.
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In his cross-examination, however, he accepted that the appellant was
married only to Asha Devi alone. He denied the suggestion that the
marriage took place 14 years prior thereto. In answer to a question as to the
name of Shiv Kumari was entered in the voter list of 1988 as the wife of the
appellant, he stated as under:
“I do not know how the name of Shiv Kumari is
entered in the voter list of 1988 as the wife of
Suresh Kumar Singh. I do not know that Shiv
Kumari w/o Suresh Kumar Singh was elected as
member of village Sabha.”
He did not have any document to show that he had made
arrangements for treatment of his sister.
He was examined on 16.8.1995.
Indisputably, on or about 5.9.1995, an application was filed by him
for correction of his statement, which reads as under-
“It is submitted that on 16.08.95 statement of
Applicant Ajmer Singh S/o Ran Bahadur Singh,
R/o Village Nigohi, P.S. Deeh, District Raibareilly
was recorded. In Para 3 at Page 4 of the statement
it has been written that, “In our place the name of
girl is changed soon after coming to her in-laws
house, after marriage”, whereas actually Applicant
had deposed that, “At our place the name of girl is
not changed soon after coming to her in-laws
8house after marriage.” Hence, in the interest of
justice, the amendment of the same to this effect is
necessary.
Hence, it is prayed that in the statement “is not
changed” shall be read in place of “is changed”.
Thus, he had accepted in his first deposition that a custom with regard
to change of the name of the bride by her in-laws prevails in his community.
13. Indisputably, in the voter’s list of 1983, the name of wife of appellant
was shown as Raj Kumari. There appears to be a controversy in regard to
existence of a custom of changing the name of the bride by her husband’s
family. P.W.1, who is elder brother of the deceased even could not point out
as to in which month the marriage had taken place. When the defence had
raised a contention with regard to the date of marriage, it was obligatory on
the part of the prosecution to prove the same in order to take the benefit of
the provisions contained in Section 113A and 113B of the Indian Evidence
Act as also the provisions of Section 498A and 304B of the IPC. Before a
person is found guilty of commission of an offence, the court must arrive at
a firm conclusion that the ingredients thereof had been proved. For the said
purpose whereas on the one hand the object of the Parliament in inserting the
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said provisions must be borne in mind; a satisfaction must also be arrived at
that the conditions precedent therefor has been fulfilled.
A voter’s list is a public document. It is issued under the authority of
the Election Commission. The voter’s list published as on 1st January 1988
showed that Suresh Kumar Singh and Shiv Kumari were husband and wife
and were resident of House No. 85. Their names along with one Ishraj
Kumari were shown at Serial Nos. 273, 274 and 275. The husband’s name
of Shiv Kumari is shown as that of the appellant. The voter’s list was in
relation to the residents of Dostpur, Budhwara. It is in the aforementioned
background, the court should have considered the purported application for
amendment of statement filed by Ajmer Singh on 5.9.1995. On what basis
such an amendment was directed is not borne out from the records. The
learned Sessions Judge, however, relied thereupon to hold that the marriage
had taken place in the year 1987.
14. Keeping in view the menace of dowry deaths, the Parliament in the
year 1983 inserted Section 498A of the IPC and Section 113A of the Indian
Evidence Act by Act No. 46 of 1983 and in the year 1986 inserted Section
304B of the IPC and Section 113B of the Indian Evidence Act by Act No. 43
of 1986. Although Section 304B of the IPC came into force with effect from
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19th November 1986, Section 113B of the Indian Evidence Act came into
force with effect from 5.1.1986.
15. The learned trial judge as also the High Court invoked Section 113B
of the Indian Evidence Act, which reads as under:
“113B. Presumption as to dowry death.- When
the question is whether 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.
Explanation.-For the purposes of this section
“dowry death” shall have the same meaning as in
section 304B, of the Indian Penal Code (45 of
1860)].”
The definition of `dowry death’ is incorporated by reference to
Section 304B of the IPC, which reads as under:
“304B. Dowry death.- (1) Where the 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
relative of her husband for, or in connection with,
any demand for dowry, such death shall be called
11“dowry death”, and such husband or relative shall
be deemed to have caused her death.
Explanation.–For the purpose of this sub-section,
“dowry” shall have the same meaning as in section
2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(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.”
Explanation appended to Section 304B defines dowry to have the
same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961,
which reads as under:
“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; 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 mahr in the case of
persons to whom the Muslim Personal Law
(Shariat) applied.”
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We may also notice the provisions of Section 498A of the IPC, which
reads as under:-
“498A. 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 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
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 properly or
valuable security or is on account of failure
by her or any person related to her to meet
such demand.”
16. One of the ingredients of Section 304B of the IPC is marriage within a
period of seven years preceding the death. No such requirement finds place
in Section 498A thereof.
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17. From the evidence of P.W.1, it appears that he had talked of only one
incident in respect whereof his evidence was admissible in law, that is, when
the deceased came back to her parental home six months after `Gauna’
ceremony, she had informed him that if he did not give a ring and a chain,
the accused persons might kill her. It is also not in dispute that the matter
rested at that as he talked to the appellant in that behalf, whereafter he came
and took her away. The matter was therefore settled. There was nothing to
show that any cruelty or harassment was meted out on that ground thereafter.
So far as the other incident disclosed by him is concerned, it was one
which he had heard from his wife and other female members of the family.
It was, thus, hearsay, as they were not examined.
18. It is in the aforementioned context, we may consider the effect of the
term “soon before death”.
Section 304B of the Code provides for a penal offence. It has the
following ingredients:
(i) The death of a woman must have been caused by burns or
bodily injury or otherwise than under normal circumstances;
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(ii) Such death must have occurred within seven years from the
date of the marriage’
(iii) Soon before her death, the woman must have been subjected to
cruelty or harassment by her husband or any relative of her
husband; and
(iv) Such cruelty or harassment must be in connection with the
demand of dowry.
19. The harassment which is said to have been caused in connection with
the demand of dowry other than the incident in question, as noticed
hereinbefore, was one year prior to the incident.
Would a gap of one year would answer the description of term “soon
before her death” is the question. We may, at the outset, notice some case
laws operating in the field.
In Satvir Singh and Ors. vs. State of Punjab and Anr. [(2001) 8 SCC
633], this Court held:
“22. It is not enough that harassment or cruelty
was caused to the woman with a demand for
dowry at some time, if Section 304B is to be
invoked. But it should have happened “soon before
15her death”. The said phrase, no doubt, is an elastic
expression and can refer to a period either
immediately before her death or within a few days
or even a few weeks before it. But the proximity to
her death is the pivot indicated by that expression.
The legislative object in providing such a radius of
time by employing the words “soon before her
death” is to emphasis the idea that her death
should, in all probabilities, have been the aftermath
of such cruelty or harassment. In other words,
there should be a perceptible nexus between her
death and the dowry related harassment or cruelty
inflicted on her. If the interval elapsed between the
infliction of such harassment or cruelty and her
death is wide the court would be in a position to
gauge that in all probabilities the death would not
have been the immediate cause of her death. It is
hence for the court to decide, on the facts and
circumstances of each case, whether the said
interval in that particular case was sufficient to
snuff its cord from the concept “soon before her
death”.
{See also Harjit Singh vs. State of Punjab [(2006) 1 SCC 463]}
Indisputably, in order to attract the said provision, it is imperative on
the part of the prosecution to establish that the cruelty or harassment has
been meted out to the deceased `soon before her death’. There cannot be
any doubt or dispute that it is a flexible term. Its application would depend
upon the factual matrix obtaining in a particular case. No fix period can be
indicated therefor. It, however, must undergo the test known as `proximity
test’. What, however, is necessary for the prosecution is to bring on record
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that the dowry demand was not too late and not too stale before the death of
the victim.
A similar question came up for consideration in Thakkan Jha & Ors.
vs. State of Bihar [(2004) 13 SCC 348], wherein this Court held:
“This is so because the expression used in the
relevant provision is “soon before”. The
expression is a relative term which is required to
be considered under specific circumstances of each
case and no straitjacket formula can be laid down
by fixing any time-limit. The expression is
pregnant with the idea of proximity test. It cannot
be said that the term “soon before” is synonymous
with the term “immediately before”. This is
because of what is stated in Section 114
Illustration (a) 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. Suffice, however, to
indicate that the expression “soon before” would
normally imply that the interval should not be
much between the cruelty or harassment concerned
and the death in question. There must be existence
of a proximate and live link.
{See also Baldev Singh vs. State of Punjab [(2008) 13 SCC 233]}
Yet again in Kamesh Panjiyar Alias Kamlesh Panjiyar vs. State of
Bihar [(2005) 2 SCC 388], this Court held:
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“The expression ‘soon before’ is very relevant
where Section 113B of the Evidence Act and
Section 304B IPC are pressed into service.
Prosecution is obliged to show 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 proximity
test both for the proof of an offence of dowry death
as well as for raising a presumption under Section
113B of the Evidence Act. The expression ‘soon
before her death’ used in the substantive Section
304B IPC and Section 113B of the Evidence Act is
present with the idea of proximity test.”
This Court in Ram Badan Sharma vs. State of Bihar [(2006) 10 SCC
115] wherein one of us was a Member, held:
“35. There are three main ingredients of this
offence: (a) that, there is a demand of dowry and
harassment by the accused on that count; (b) that,
the deceased died; and (c) that, the death is under
unnatural circumstances within seven years of the
marriage. When these factors were proved by
reliable and cogent evidence, then the presumption
of dowry death under Section 113B of the
Evidence Act clearly arose. The aforementioned
ingredients necessarily attract Section 304B IPC.
Section 304B is a special provision which was
inserted by an amendment of 1986 to deal with a
18large number of dowry deaths taking place in the
country. In the instant case, if the circumstances of
the case are analyzed on the touchstone of Section
304B IPC, all the three basic ingredients of Section
304B I.P.C. are present in the instant case. There
has been persistent demand of dowry and
harassment, humiliation and physical violence and
beating by the husband and her in-laws. The
deceased died under unnatural circumstances
within seven years of the marriage.”
{See also Devi Lal vs. State of Rajasthan [2007 (12) SCALE 265 (para 20),
and State of Rajasthan vs. Jaggu Ram [2008 (1) SCALE 22 (para 11)]}
20. The Law Commission submitted its 91st Report on “Dowry Deaths
and Law Reforms: Amending Hindu Marriage Act, 1955, the Indian Penal
Code, 1860 and the Indian Evidence Act, 1872″ wherein it was emphasized
that there had been an alarming increase in the number of cases in which
married woman die in circumstances which, to say the least, are highly
suspicious. Those deaths popularly came to be associated with dowry and
that is why it was given the term `dowry death”
21. Some harassment which had taken place one year prior to the death
without something more, in our opinion, could not have been considered to
be a cruelty which had been inflicted soon before the death of the deceased.
It does not satisfy the proximity test.
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22. As the death, in our opinion, had not taken place within a period of
seven years and there is no evidence that any cruelty has been inflicted upon
the deceased soon before her death neither the presumption in terms of
Section 113B of the Indian Evidence Act could have been drawn nor it could
be concluded that the appellant is guilty of commission of offence under
Section 304B.
23. In view of our finding that the death did not take place within seven
years from the date of marriage, no presumption could have been raised
either under Section 113A or under Section 113B of the Indian Evidence
Act.
24. We, however, are satisfied that the appellant has rightly been found
guilty of commission of offence under Section 498A of the IPC. Sentence
imposed on him on that count is, therefore, maintained.
25. For the aforementioned reasons, the appeal is allowed in part and
subject to the aforesaid findings.
………………………………..J.
[S.B. Sinha]
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………………………………..J.
[Dr. Mukundakam Sharma]
New Delhi;
May 06, 2009