Important Point
Section 304B IPC r/w. Section 113-B of Indian Evidence Act, in view of death within 7 years of marriage, same being unnatural, leads to raising the presumption of dowry death but before the presumption is drawn all ingredients for drawing this presumption must be properly established.

Headnote:Indian Penal Code, 1860 — Sections 304B and 498A — Dowry death — Appellant husband convicted under — Deceased got married to appellant three years before incident — Died due to consumption of organic phosphorus com-pound — FIR was lodged by father of deceased which contained no allegations against appellant or other two acquitted accused that any demand of dowry was made before marriage — Only allegations were that accused used to taunt deceased on small issues and that gifts that were given to her by her parents were being criticised or rejected — Evidence as regards demand of dowry was improved version from that of FIR — Offence of dowry death could not be said to have been proved — Conviction u/s. 498A IPC and sentence of one year imprisonment was however liable to be confirmed.
       Held: Insofar as, applicability of Section 304-B of the Indian Penal Code is concerned, the Court is of the view that it must be proved by the prosecution that death of a woman took place within 7 years of her marriage and that she did not die a natural death and further that she was subjected to cruelty or harassment soon before her death and that such cruelty or harassment was for, or in connection with, any demand of dowry. Whereas, three ingredients of Section 304-B of Indian Penal Code may be applicable in the facts and circumstances of this case, it appears, the prosecution has not been able to lead convincing evidence to prove the fourth ingredient, which is with regard to cruelty by her husband for, or in connection with, any demand of dowry. Section 304-B of Indian Penal Code read with Section 113-B of Indian Evidence Act, in view of the death within 7 years of the marriage, same being unnatural, leads to raising of presumption of dowry death against the accused and before, this presumption is drawn, the Court is of the view that all the ingredients for drawing this presumption must be properly established. It is the cardinal principle of criminal jurisprudence that in every case, it is the prosecution which has to prove its case beyond the shadow of reasonable doubt. Offence such as Section 304-B of Indian Penal Code where presumption is drawn in favour of the prosecution and against the accused, is a departure from the basic principle in proving the offence against the accused and, therefore, strict proof of the ingredient constituting offence under Section 304-B of Indian Penal Code must be proved. (Para 13)
       Insofar as, applicability of Section 498-A of Indian Penal Code is concerned, ingredients of the same are quite adequately made out and the appellant cannot escape from his liability to be punished under the said section. Explanation ‘A’ added to Section 498-A of Indian Penal Code deals with cruelty of any kind. Cruelty has only to be from wilful conduct of the accused, which may drive a woman to commit suicide. It may not essentially relate to the dowry. In fact, Clause (b) of the explanation attached to Section 498-A of the Indian Penal Code deals with harassment of a 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. In the present case, what the prosecution has been able to establish beyond the shadow of reasonable doubt is that the gifts taken to the house of the appellant and his co-accused on the occasion, like Lohri etc. were either criticised or rejected, which may not essentially have been thrown out as is also the prosecution version coming for the first time during the trial. Taunting Amita on small issues and further rejecting or criticising the gifts brought by her parents on occasion does not amount to cruelty and the appellant, as mentioned above, has to be held guilty for an offence under Section 498-A of Indian Penal Code. (Para 14)
       Result : Appeal allowed partly.

JUDGMENT

V.K. Bali, J. — Appellant Ravinder Kumar, who was tried alongwith his co- accused Sudhir Kumar and Shanti Devi, has since been held guilty for offences under Sections 304-B and 498-A of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years under Section 304-B of Indian Penal Code and one year rigorous imprisonment under Section 498-A of Indian Penal Code as also to pay fine of Rs. 500/- and in default thereof, to further undergo rigorous imprisonment for a period of two months, vide order dated 15.4.1993. His co-accused, namely, Sudhir Kumar and Shanti Devi, have, however, been acquitted. Ravinder Kumar, through present appeal filed by him, challenges the order of conviction and sentence recorded by learned Additional Sessions Judge, Ambala.

2. The appellant alongwith his co-accused was tried for the offences, referred to above, on the basis of prosecution version, which was unfolded by Rajinder Nath Bansal, who, in the FIR lodged by him on 8.4.1991, stated that he had retired from the Haryana Government and had two sons and three daughters. Amita was married about three years ago with appellant Ravinder Goyal son of Prem Sagar Goyal, resident of Panchkula. Amita was, however, blessed with no child. After the marriage, mother-in-law of Amita, Shanti Devi, appellant Ravinder Kumar and brother-in-law of Ravinder Kumar, namely, Sudhir Kumar, were not behaving well with his daughter and on small matters, they used to taunt her. From their side, whatever clothes etc. were given on the occasions, the same were criticised and Amita had told them that they were troubling her. Every time Amita was counselled and told that they were helpless. On number of occasions, these persons left Amita on scooter, car etc. with them late at night. Despite all this, they compromised the matter with them on every occasion but it remained in their mind that they were given less dowry. Today at about 8.30 a.m. in the morning, Ravinder Kumar accused brought his daughter Amita in a van. While the van was standing outside the house, he came to his house and told him that Amita had not taken anything since yesterday evening and her position was quite bad and asked him to call a Doctor and get her treated. The appellant told that Amita was lying in the van standing outside. They immediately went down stairs, where the van was standing and found that froth was coming from the mouth of his daughter and she was lying unconscious, on which, he sent Amita to General Hospital, Sector 16, Chandigarh alongwith his sons Vijay Kumar and Ajay Kumar as also his wife Pushpa, in the same very van. Amita died after some- time. He stated that he was sure that his daughter had been killed by Ravinder Kumar, his mother and brother-in-law, who all conspired to give some poisonous substance. Legal proceedings should be initiated against them. On the basis of the FIR lodged by Rajinder Nath Bansal, case under Sections 498-A, 304-B, 120-B of Indian Penal Code was registered against the appellant and his co-accused.

3. The prosecution in its endeavour to bring home the offence against the appellant and his co-accused examined Rajinder Nath Bansal, P W-1, who deposed in tune with the FIR lodged by him. Statement made by Rajinder Nath Bansal was corroborated by his son Vijay Kumar, who appeared as PW-2, P W-3 Anil Kumar, Inspector Police, proved the report under Section 173 of Code of Criminal Procedure whereas, Dr. M.P. Singh, who was examined as PW-4, proved the bed head ticket, Ex. PH, and deposed that Amita was taken to the hospital and on examination, she was found to be in unconscious state not responding to painful stimuli and her pulse and blood pressure were not recordable. Dr. J.K. Kalra, who was examined as P W-5, proved the post-mortem report, Ex. PJ and further stated that the viscera of the deceased was sent for chemical examination and on the basis of chemical examination report, cause of death in this case was opine

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2004 Supreme(AP) 858

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