Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a learned Single Judge of the Andhra Pradesh High Court upholding the conviction of the appellant for offences punishable under Sections 304-B and 498-A of the Penal Code, 1860 (in short “IPC”). Sentence of seven years was imposed on each count. By the impugned judgment conviction recorded in respect of co-accused, Laxmi was set aside and she was directed to be acquitted.
2. Background facts as projected by the prosecution in a nutshell are as follows:
Padma @ Pitchamma (hereinafter referred to as “the deceased”) was married to Accused 1, Srinivasulu on 21-5-1989. At the time of marriage, PW 1, father of the deceased gave Rs 10,000 in cash, five tolas of gold, other household articles worth Rs 3000 and Rs 1200 towards clothes to Accused 1, who was employed as sub-staff of Karnataka Bank, Secunderabad. Accused 2 is the mother of Accused 1 and she used to visit Accused 1 in the city and did not allow the deceased to fulfil conjugal obligations. At the instigation of Accused 2, Accused 1 had demanded Rs 5000 more from the parents of the deceased to purchase a scooter as additional dowry. PW 1, father of the deceased paid the said amount to Accused 1. In spite of the same, both the accused made repeated demands for additional dowry upon the deceased. On one occasion, a sum of Rs 1000 and on another occasion a sum of Rs 2000 was paid by PW 1 to the accused. But the accused persons did not stop ill-treatment and harassment towards the deceased. After some time, when the deceased and her parents came to know that Accused 2 was thinking of a second marriage of Accused 1, immediately they went to the house of the accused but Accused 1 refused to take the deceased into the house. Accused 2 ill-treated the deceased and both the accused asked the deceased to go back to her parents' house. Accused 1 threatened to immolate the deceased and Accused 2 threatened to poison the deceased and insisted that she continue to stay in the house of her parents. Therefore, the deceased was taking shelter in the house of her parents and about 2 months prior to the incident, on the assurance given by both the accused before the elders, the deceased joined Accused 1 and 2 to fulfil conjugal obligations. In spite of the same, the accused continued ill-treatment and harassment for more dowry. Because of the persistent ill-treatment and cruelty meted out by the accused towards the deceased, on 17-9-1992 at about 9.30 a.m the deceased set herself ablaze and died with 100% burn injuries in Gandhi Hospital while undergoing treatment.
3. First information report was filed, investigation was undertaken and on completion thereof charge-sheet was filed. The accused persons pleaded innocence.
4. To establish its accusations prosecution examined 11 witnesses and 16 documents were exhibited. PWs 1 and 2 were the father and mother of the deceased respectively while PW 3 was a relative. PW 4 was a brother of the deceased while PW 5 was the sister of the deceased. PW 6 was a caste elder. PW 10 is the doctor who conducted the autopsy while PW 11 was the investigating officer. On consideration of the evidence on record, learned IInd Additional Metropolitan Sessions Judge, Hyderabad convicted the appellant for offence punishable under Section 304-B and sentenced him to undergo imprisonment for ten years and to pay a fine of Rs 10,000 with default stipulation. The acquitted co-accused A-2 i.e the mother of the appellant was sentenced to undergo imprisonment for seven years. Though the accused person was found guilty for offence punishable under Section 498-A, no separate sentence was imposed.
5. Questioning correctness of the trial court's judgment, an appeal was preferred before the High Court by both the accused. It was essentially the stand of the appellant before the High Court that there was no material to show any demand of dowry and therefore neither Section 498-A nor Section 304-B had any application. It was pointed out that the deceased stayed for only 12 days at the matrimonial home. Reference was made to several letters which clearly establish that the deceased was unhappy not because of any demand of dowry but because the appellant (sic deceased) used to stay most of the times with the parents and the mother-in-law was taking objection to her long absence from the marital home. The High Court did not find any substance in the stand of the appellant but found that there was no material to show that the co-accused i.e the mother-in-law was guilty of the charged offences. Accordingly her conviction was set aside and she was acquitted. However, in case of the appellant the conviction was maintained and the sentence was reduced as aforestated.
6. In support of the appeal, it was submitted that there is no evidence of any dowry demand. On the contrary, the letters on which the prosecution placed reliance indicated that the dispute was not relating to demand of dowry but was on account of normal marital discord.
7. Learned counsel for the respondent on the other hand supported the impugned judgment.
8. “4. Section 304-B IPC deals with dowry death which reads as follows:
‘304-B. 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 “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purposes 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.’
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 attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(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 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 Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by 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 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 304-B of the Indian Penal Code (45 of 1860).’
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its twenty-first Report dated 10-8-1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the 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 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 woman concerned must have been ‘soon before her death’ subjected to cruelty or harassment ‘for or in connection with the demand for dowry’. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory 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:
(1) 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 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 demand for dowry.
(4) Such cruelty or harassment was soon before her death.
5. 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 death the victim was subjected to cruelty or harassment. The 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. The 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 in by the prosecution. ‘Soon before’ is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 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 the 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 possession of goods soon after the theft, is either the thief who 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 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 between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
6. … Section 498-A reads as 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 also be liable to fine.
Explanation.—For the purposes 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 property or valuable security or is on account of failure by her or any person related to her to meet such demand.’
7. 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 established 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 and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the 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 304-B there is no such explanation about the meaning of ‘cruelty’. But having regard to the 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 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 v. State of A.P 1991 Supp (2) SCC 99, AIR 1991 SC 1142) Section 498-A IPC and Section 113-B (sic 113-A) of the Evidence Act include in their amplitude past events of cruelty. The period of operation of Section 113-B (sic 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.
8. Section 2 of the Dowry Prohibition Act, 1961 (in short ‘the Dowry Act’) defines ‘dowry’ 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) 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 they are made as consideration for the marriage of the said parties.
Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).’ ”
9. The prosecution version primarily rests on three documents i.e Exhibits 2, 3 and 4 dated 3-1-1990, 20-6-1991 and 25-10-1990 respectively. A careful reading of these documents which were letters by the deceased show there was in fact no allegation of any demand of dowry made by the accused. Exhibit 3 i.e the letter dated 20-6-1991 is very significant. Grievance in the said letter was not to any demand of dowry. In fact the deceased had clearly written that she was forced to marry with the accused against her wish and that created a lot of problems for her. The underlying essence of the letter is that the deceased was not willing to get married and wanted to continue her studies and she was married against her wish. There is one significant statement in the letter, which is to the effect that the deceased did not want to go to her parental home for Gangamma festival as her husband was taking due care of her. In Exhibit 4 i.e letter dated 25-10-1990 she has clearly stated that she was all right and was happy in her in-laws' place and her in-laws were taking good care of her and she on the other hand stated that somehow or the other she does not want to live in the marital home. In Exhibit 2 i.e letter dated 3-1-1990 also she had stated that she was happy. In fact she wrote to her father that he should take good care of her mother.
10. Learned counsel for the State referred to a particular sentence which speaks as to the effect that Rajamma was scolding her. It is to be noted that Rajamma was the appellant's grandmother, she is not an accused. It is also not indicated in the letter that she was scolding her for any dowry. It is to be noted that the reference to the grandmother being unhappy is relatable to the deceased's long absence from the matrimonial home. In fact there is no allegation of any harassment due to dowry. What the trial court and the High Court appears to have done is to pick up one line from one place and another from another place and conclude that there was demand of dowry. Reading of the letters in the entirety shows that there was, in fact, no mention of any demand for dowry. Therefore the conviction in terms of Section 498-A and Section 304-B cannot be maintained. The judgment of the High Court is accordingly set aside and the appellant is acquitted of the charges. Bail bond executed for the release of the appellant on bail pursuant to the order dated 8-1-2002 shall stand discharged.
11. The appeal is allowed.