IMPORTANT POINT
In an offence of dowry death, expression "soon before" would normally imply that interval should not be much between concerned cruelty or harassment and the death in question and there must be existence of a proximate and live-link between effect of cruelty based on dowry demand and concerned death.

Headnote:Indian Penal Code, 1860-Section 304B-Dowry death-Essential ingredients-Presumption as to dowry death under Section 113-B Evidence Act-Prosecution has to rule out possibility of natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances"-Expression "soon before" is a relative term and would depend upon circumstances of each case -Proximity test-Interval should not be much between concerned cruelty or harassment and death in question.
       Held : 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 304B 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.
       A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her 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 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. 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 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 should not be much between the 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. (Para 4)
       (ii) Indian Penal Code, 1860-Sections 498A and 304B-Offences can not be held to be mutually inclusive and deal with two distinct offences-Person charged and acquitted under Section 304 B IPC can be convicted under Section 498A without that charge being there if such case was made out-Suicidal death of a married woman within seven years could be covered under Section 304B IPC-In the factual scenario, conviction of appellant No. 1, father-in-law of deceased, under Sections 304B & 498A IPC found justified and not liable to be interfered with-Conviction of other appellant, mother-in-law under Section 304B IPC found unsustainable but conviction under Section 498A IPC sustained. (Paras 6, 10 & 11)

JUDGMENT

Arijit Pasayat, J.- The appellants who were found guilty of offences punishable under Section 304B and Section 498A of the India Penal Code, 1860 (for short IPC ) by the Assistant Sessions Judge, Nagapattinam, unsuccessfully challenged the conviction before the Madras High Court. By the impugned judgment the High Court only reduced the sentence from nine years to seven years for the offence punishable under Section 304B IPC but confirmed the sentence five years as imposed in respect of offences punishable under Section 498A, on the allegation that Devasena (hereinafter referred to as the deceased ) committed suicide because of the cruelty and tortures perpetuated by the appellants who were her father-in-law and mother-in-law respectively along with husband Ashok Kumar (since acquitted).

2. Synoptical resumption of factual position is as follows:

The marriage between the deceased and Ashok Kumar was solemnized on 27-1-1989. At the time of the marriage, it was a condition stipulated by the accused persons that along with other articles, 15 sovereigns of jewels and a cash of Rs. 10,000/- was to be paid. Though the parents of the deceased (PWs 3 and 4) agreed to meet the demands, they could only arrange 12 sovereigns of jewels and cash of Rs. 7,000/- and gave it to the accused persons at the time of marriage. They agreed to give the balance as early as practicable. Ashok Kumar was working abroad. Whenever he left India, he used to take his wife and leave her with her parents i.e. PWs 3 and 4. Since the balance jewellery and cash were not given as agreed, the accused persons continued to make demand therefor. Deceased was insulted, humiliated and tortured. When they became unbearable, the deceased came out of the matrimonial home. The appellant No. 1 Kaliyaperumal took her back and beat her with chappel in a public street. This was witnessed by PW-5. On hearing about the incident, PWs. 3 and 4 went to the house of appellant No. 1. Here again they were insulted and abused by appellant No. 1. On 9-12-1992, PW-3 received the information that their daughter (deceased) has committed suicide. Both PWs 3 and 4 came to the house of appellant No. 1. At that time the village Administrative Officer (PW-1) was present. On the basis of the statement given by PW-3, Ex. P1 was prepared by PW1 and sent to the police station. PW.9 received the report and a case was registered. Intimation was sent to the RDO to conduct inquest. He came to the spot and obtained statements from the accused-appellants, parents of the deceased and other witnesses. Thereafter he sent Ex.P8 report to PW.11 D.S.P. for further action. The enquiry of RDO revealed that the death was due to dowry torture. PW.11 took up further investigation. On completion of investigation, charge sheet was filed. During trial, thirteen witnesses were examined. Accused person pleaded false implication. As noted above, the appellants were convicted while the husband of the deceased was acquitted. The conviction and sentences imposed were challenged before the Madras High Court. By the impugned judgment, as noted above, the conviction was maintained but he sentence was reduced in respect of offence under Section 304B.

3. In support of the appeal, learned counsel for the appellants submitted that Section 304B has no application because there was no evidence to show that soon before deceased committed suicide, there was any cruelty or torture. According to him section 113B of the Indian Evidence Act, 1872 (for short Evidence Act ) has no application because the prosecution has failed to prove that "soon before her death" the victim was subjected to such cruelty or harassed in action with demand for dowry. It was also submitted that both the Trial Court and the High Court have relied on inadmissible evidence. The RDO who submitted the report was not examined and therefore, letters claimed to have been written by the the husband of the deceased accused Ashok Kumar could not have considered. T

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2003 Supreme(SC) 817

Cases Referred (1)