Important point
Expression “soon before” in Section 304B IPC would imply that interval should not be much between cruelty or harassment concerned and death in question.

Headnote:(i) Indian Penal Code, 1860—Sections 304B, 498A—Appellant husband was married to deceased on 5.10.1986 and deceased died in matrimonial home on 25.4.1988 by poisoning—Appellant, his mother and brother were tried on charge of dowry death and trial Court convicted appellant and his mother—High Court set aside conviction of mother and upheld conviction of appellant—Appeal—Even if prosecution established the case of payment of dowry of Rs. 5000/-, question was whether demand of dowry was soon before deceased was treated cruelty or harassed by appellant—Deceased had delivered child premature and child expired within two days in April 1988—Father of deceased contradicted himself as regard nature and purpose of demand—Mother PW3 categorically admitted that she had no grievance as against her son-in-law—No evidence that deceased was subjected to any cruelty or harassment between April 1988 and her death in October 1988—Expression “soon before” would normally imply that interval should not be much between cruelty or harassment concerned and death—Conviction for dowry death could not be sustained. (Paras 8 to 14, 19 and 21)
       (ii) Indian Penal Code, 1860—Section 306—Accused tried on charge of dowry death—If accused was not found guilty u/s 304B IPC, could he be convicted u/s 306 IPC—Omission to frame charge u/s 306 IPC may or may not result in failure of justice or prejudice the accused—Ordinarily such plea should not be allowed to be raised for the first time before Court unless material on record could establish said charge—No evidence to hold charge u/s 306 IPC proved.
       Held : Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Indian Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused. Before invoking the provisions of Section 306 IPC, it is necessary to establish that: (i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498A IPC. Only in the event those facts are established, a presumption in terms of Section 113A of the Indian Evidence Act could be raised. In the instant case, the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498A IPC. No case that the deceased committed suicide was also made out. (Paras 23 to 26)
       The ingredients of Section 306 and Section 304-B are different and distinct. In any event, no evidence has been brought on record to show that there has been any act of omission or commission on the part of the accused, before the death of the deceased to demonstrate that the appellant was responsible for the same. We have noticed hereinbefore that the High Court, for the first time, in its judgment on a hypothesis observed that when her father came to see her, he must have been insulted or felt hurt as she might have been subjected to harassment. Unfortunately, no evidence whatsoever has been brought to our notice to enable us to sustain the said finding and in that view of the matter we are unable to accept the submissions of the learned counsel appearing for the Respondent State. (Para 29)

Judgment

S.B. Sinha, J.—Jasbir Kaur, a young woman, in her prime age of 22-23 years, died on 26.7.1988. She died of poisoning. The poison is said to be aluminum phosphide which is a common pesticide. She was married with the respondent on 05.10.1986 in a village known as Maur Khurd. Her matrimonial home was at Bhatinda, which is at a distance of 40 k.m. from Maur Khurd. She delivered a male child at her parents house i.e. at Maur Khurd on 23.4.1988. The child, however, died on 25.4.1988. The mother of the deceased P.W.-3 (Mukhtiar Kaur) disclosed the said fact to her after about 20 days. The deceased came back to her matrimonial home soon thereafter. A day prior to the date of occurrence i.e. on 25.07.1988, her father Gurlal Singh (P.W.-2) came to see her at Bhatinda and found her to be hale and hearty. He received the information of her death on 26.07.1988 at about 1.00 PM at Maur Khurd. He took a bus and reached Bhatinda at about 2.00 P.M. He allegedly found the appellant, his mother and brother sitting there. They allegedly slipped away from the house one by one. He sent for his other relatives and after they came he left the house for going to the Police Station. He on his way met the Inspector of Police at the bus stand at about 11.00 P.M. His statement was recorded at the bus station.

2. The mother of the appellant at the relevant time was said to be residing with her husband at Ferozepur which is situated at a distance of 132 Km.

3. The defence of accused was that they were not present at the time of death of the deceased. According to the appellant, he was at his work place till 12.30 PM while according to his brother Jaspal Singh, he at the relevant time was at Ludhiana undergoing training. The defence of mother Mohinder Kaur was that she at the relevant time had been at Ferozepur.

4. The inquest of the dead body was held at about 11.45 PM on 26.07.1988 and the post mortem was held on 27.7.1988. P.W.1 (Dr. Balbir Singh) who conducted the post mortem could not ascertain the cause of death. The viscera of the deceased was preserved and later on sent for chemical examination. The chemical examiner submitted his report on 15.11.1988 opining that aluminum phosphide was found therein.

5. On the basis of the statements made by Gurlal Singh (PW-2) before the Investigating Officer Dharam Singh (P.W.7), a case under Section 304-B of the Indian Penal Code was registered against the appellant, his brother Jaspal Singh and mother Mohinder Kaur on the allegation that after solemnization of marriage of Sarabjit Singh, the younger brother of the appellant, the accused started taunting and harassing Jasbir Kaur for bringing less dowry as the wife of Sarabjit Singh had brought Refrigerator, Television and Cooler. Allegedly, to fulfil the said demand of the accused, the complainant paid a sum of Rs. 3,000/- around Diwali on one occasion and Rs. 1,000/- on two other occasions within two months therefrom. It was further alleged that in the month of March, 1988, when Gurlal Singh went to the house of in-laws to bring her to her house as she was in the family way, the accused refused to send her with him. It was further alleged that Raghbir Singh, the brother of the deceased came to Bhatinda when he was informed by his sister that his father should take her away to Maur Khurd otherwise the accused would kill her at the time of delivery. The appellant was arrested on 05.08.1988.

6. The learned Addl. District and Sessions Judge convicted the appellant herein as also his mother for commission of offence under Section 304-B of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for seven years. The learned Judge, however, recorded, a judgment of acquittal so far as Jaspal Singh is concerned. The learned Addl. District and Sessions Judge in his judgment relying upon or on the basis of the evidence of the prosecution witnesses arrived at a finding that the dowry was paid to the appellant and his mother Mohinder Kaur and, thus

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2005 Supreme(SC) 1579

Important pointExpression “soon before” in Section 304B IPC would imply that interval should not be much between cruelty or harassment concerned and death in question.

Cases Referred (6)

Important point
Expression “soon before” in Section 304B IPC would imply that interval should not be much between cruelty or harassment concerned and death in question.