2000(2) Crimes 213 (SC)
Supreme Court of India
(From Punjab & Haryana High Court)
G.B. Pattanaik, R.P.
Sethi & Shivaraj V. Patil, JJ.
Kans Raj - Appellant
versus
State of Punjab & Ors. —Respondents
Criminal Appeal Nos. 688-90 of 1993
Decided on 26-4-2000
Counsel for the Parties :
For the Appellant : Bhaskar Y. Kulkarni, Advocate (Ms. Anita Pandey) Advocate for Mahinder Singh Dahiya, Advocate.
For the State of Punjab : Rajiv Dutta, Advocate.
For the Respondents : U.R. Lalit, Sr. Advocate, V.B. Saharya, Advocate for M/s. Saharya & Co., Advocates.

Important points
1. The expression ‘otherwise than under normal circumstances’ in Section 304-B IPC would mean the death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury.­
2. In connection with offence under Section 304-B IPC no presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged de­mand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman.

Headnote:(i) Indian Penal Code, 1860—Section 304-B—Indian Evidence Act, 1872—Section 113-B—Dowry death —Death within seven years of marriage—Conviction of husband, ­father-in-law, mother-in-law, broth­er-in-law and sister-in-law—Allegation against in-laws that they were taunting deceased—Details of alleged taunting not spelt out—Demand of dowry against in laws not proved—They were roped in only on ground of being close relations of husband of deceased—In case of accusation against relatives overt act attributed to person other than husband are required to be proved beyond reasonable doubt—High Court correct in acquitting in laws of deceased.

       Held : Ramesh Kumar, brother of the husband, Ram Piari mother of the husband and Bharti sister-in-law of the husband-ac­cused cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PW Nos. 5 and 6 have not brought on record any incriminating circum­stance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW5 in his deposition before the Court had stated that “after the marriage Rakesh Kumar, accused raised a demand of Rs. 15,000/- for a scooter and refrigerator. We fulfilled that demand by giving Rs. 20,000/- to him for scooter and refrigerator..... Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21st September, 1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs. 500/-. She apprehended danger to her life in the house of her in-laws and was not willing to go there”. He has not referred to any demand of dowry or harassment by the respondents expect Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21st September, 1988 has not been produced as a witness in the case. Kans Raj PW6, the father of the deceased stated before the Trial Court that Sunita Kumari had told him that she was being taunted by her mother-in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respec­tively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prose­cution. In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No. 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be in­volved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case. (Para 5)

       (ii) Indian Evidence Act, 1872—Section 32—Statement made by deceased before death—Admissibi­lity in evidence—Statement sought to be admit­ted in evidence need not necessarily have been made in imminent expec­tation of death—Statement relating to cause of death or circumstances of transaction which resulted in his death must be sufficiently or closely connected with actual transaction—Death referred to in Sec­tion 32(1) includes suicidal death.

       Section 32 of the Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibili­ty of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving ­evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words “as to any of the circum­stances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. (Para 10)

       The death referred to in Section 32(1) of the Evidence Act includes suicidal besides homicidal death. (Para 11)

       The expression “circumstances of transaction which resulted in his death” mean that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstance can become admissible if it has nexus with the transaction which resulted in death. (Para 12)

       Thus where the deceased had been telling to her relatives about the dowry demand and harassment on that account of her husband it was held that the statements made by her to her relatives were admissible in evidence in trail of offence under Section 304-B IPC against her husband.

       (iii) Indian Penal Code, 1860—Section 304-B—Dowry Death—Cruelty ‘soon before her death’—Connotation of—‘Soon before’ is not synony­mous with term ‘immediately before’—Circumstances showing existence of cruelty or harassment to deceased are not restricted to a particu­lar instance but normally refer to a course of conduct—If cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’—Demand of dowry, cruelty or harass­ment and date of death should not be too remote in time.

       “Soon before” is a relative term which is required to be con­sidered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expres­sion is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114. Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harass­ment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be `soon before death’ if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. (Para 14)

        No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged de­mand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. (Para 15)

       (iv) Indian Penal Code, 1860—Section 304-B—Dowry death—Conviction for—Death within seven years by suicide—Demand for dowry and contin­uous harassment connected with demand of dowry show to be in existence till 21.9.1988 when deceased reported to have come to her brothers house and met her parents —Death occurred on 23.10.1988—No interven­ing circumstances showing resolvement or settlement regarding demand of dowry—Death not in normal circumstances—Accused, husband of deceased rightly convicted.

       The expression ‘otherwise than under normal circum­stances’ would mean the death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury. (Para 18)

       Held : Having critically examined the statements of witnesses, we are of the opinion that the prosecution has proved the persistent demand of dowry and continuous cruelty and harassment to the deceased by her husband. The contradictions pointed out are no major contradictions which could be made the basis of impeaching the credibility of the witnesses. Reference to different sums of money demanded by Rakesh Kumar in the statements of PWs 5 and 6 cannot, in any way, be termed to be contradictory to each other. At the most some of the amounts referred by one witness and not mentioned by the other can be termed to be an omission which in no case amounts to a major contradiction entitling the respondent No. 2 of any benefit. Ram Kishan, PW 5 has categorically stated that Rakesh Kumar accused had raised a demand of Rs. 15,000/- for scooter and refrigerator immedi­ately after the marriage which was fulfilled by giving him a sum of Rs. 20,000/-. His demand of a colour TV was also fulfilled. The con­tinuous harassment connected with the demand of dowry is shown to be in existence till 21st September, 1988 when the deceased is reported to have come to her brother’s house and met her parents. Thereafter she is not shown to have met anyone and no intervening circumstances showing the resolvement or settlement regarding demands of dowry is brought on record. She was admittedly found dead on 23rd October, 1988. Kans Raj, PW 6 has stated that a colour TV, clothes and jewel­lery were given to the accused husband as dowry. He has deposed that his daughter had told him that the accused wanted her to bring further cash amount. The deceased, on persistent demands of the accused, had withdrawn the total sum of Rs. 26,000/- from the accounts which was opened by the father in her name. He was also given a new Colour TV in lieu of the TV set given to him at the time of marriage as the same has allegedly gone out of order. It is established that the death of Sunita Kumari by suicide had occurred within 7 years of her marriage and such death cannot be stated to have occurred in normal circumstances. The term “normal circumstances” apparently means not the natural death. The charges framed against respondent No. 2 had been proved by the prose­cution beyond reasonable doubt. The judgment of the trial Court regarding conviction of Shri Rakesh Kumar under Section 304B is upheld but the sentence is reduced to seven years Rigorous Imprisonment. His conviction under Section 306 is also upheld but his sentence is reduced to five years besides paying the fine as imposed by the trial Court. (Paras 16, 17, 19 and 20)

       Result : Appeals partly allowed.