Delhi High Court - Truth losing significance because of the ego of the litigants to see that in-laws should be hanged - Misuse abuse of 498a 304B

Delhi High Court - Truth losing significance because of the ego of the litigants to see that in-laws should be hanged - Misuse abuse of 498a 304B  

IN THE HIGH COURT OF DELHI AT NEW DELHI

BAIL APPLN.1036/2013
Reserved on : 29 th October, 2013
Date of decision : 19 th November, 2013

BISHAN DASS DURGA    ..... Petitioner
Through :  Mr. Anurag Jain, Adv.

versus

STATE NCT OF DELHI      ..... Respondent
Through :  Mr. Karan Singh, APP.
Mr. Sanjay Suri, Adv. for complainant.
S.I. Gopal, P.S. Shakar Pur,  Delhi.

CORAM :-HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.  The petitioner  is seeking regular bail in FIR No.835/2012 under  Sections 498A/304B/34 IPC and Section 4 of Dowry Prohibition Act.

2.  The petitioner is the father-in-law of  Payal.  On 12 th November, 2012  at about 6:00 am, the petitioner  found Payal hanging from the ceiling fan whereupon he  immediately  informed the complainant, Naresh Batra (father of Payal) who  along with his wife,  son  and  daughter  reached the petitioner‟s house. The deceased was taken to Shanti Mukund Hospital where she was declared dead.  The complainant lodged the FIR in which he made allegations of harassment and demands against the accused persons. It was alleged that the deceased was beaten by her husband and  mother-in-law. It was further alleged that money and gifts were demanded within 10-15 days of marriage; separate house was demanded  for son-in-law and recently Renault Duster  was demanded.  As per the post-mortem report, the cause  of death is asphyxia due to ante-mortem hanging.

3.  On 1st May, 2013, the police filed the chargesheet after investigation against the petitioner  and the aforesaid family members of the petitioner. 

4.  The hearing of this  bail application  was deferred from time to time  till  the  recording of the  statements  of the six material witnesses by the Trial Court. The statement of all the six material witnesses have now  been recorded. Copies of the statements have been placed on record by the petitioner. 

5.  PW-1, Jasvinder Maakheja, an independent material witness,lives on the second floor of the building in which the accused persons  are  residing. On the fateful morning of 12th November, 2012, PW-1 went to the third floor and saw Payal hanging from the ceiling fan. PW-1 told the accused persons to bring down the body whereupon the accused  -  Saurabh cut  the  „chunni‟ and brought down the dead body and kept it on the bed.  PW-1  tried to revive the deceased by pressing her chest while accused - Gaurav gave her mouth to mouth  resuscitation. PW-1  informed the police.  The parents and the other family members of Payal reached the accused persons‟  residence  within five minutes. PW-1  accompanied the body of Payal to the hospital.  PW-1 deposed that Gaurav (husband of the deceased) tried to revive Payal many times on the way to the hospital.

6.  PW-1 to PW-6 have made some important admissions in their cross-examination.  PW-2 to PW-5  deposed  that Payal knew Gaurav before marriage and they worked together on various projects of interior decoration before and after marriage. PW-6, Jagdeep Madan,  deposed that  Payal and Gaurav  had a  love affair which resulted in their marriage. PW 6 deposed that Payal told her that she had not told anything to her parents and she had married Gaurav against their wishes. PW-1  deposed  that accused had a Honda City Car, two motorcycles and a scooter prior to the marriage of Payal. The motorcycles and scooter were used by the sons of the petitioner and one more bike was purchased by the petitioner after the marriage of Payal. PW-2 also  deposed  that the accused had a Honda City car and bikes. PW-2  deposed  that Gaurav was having a furniture showroom in Geeta Colony.  PW-1 deposed  that Payal never complained of dowry demands, harassment or torture though she demanded separation from her in laws one-and-a-half months before her death. PW-1 further deposed  that he never saw any quarrel between the deceased and her in-laws and Payal being beaten up by the accused persons. PW-2 further deposed that he never made any complaint during the lifetime of Payal to any authority for harassment or demands.    

7.  PW-2 to 5 are the father, mother, brother and sister of the deceased, made material improvements in their deposition made before the Court vis-à-vis the statement made to the police/SDM earlier. They were confronted with their previous statements at the time of cross-examination.  The following improvements were made by the aforesaid witnesses:-

-  The demand of more gifts was made on Holi as the gifts were not enough to distribute among relatives on Holi.
-  The mother-in-law taunted  Payal that her family  just came to have dinner on her birthday without any gifts for them
-  On the occasion of “Nirjala Ekadashi”,  the  mother-in-law was not happy on seeing the  fruits, clothes and cash  sent by the father of the deceased  and she questioned  the deceased  what Gaurav saw in  Payal  and that she could get 20 others like her for Gaurav.
-  The deceased was beaten up by her husband on the road and that the deceased came to her parent‟s house and two days  later,the petitioner with Gaurav came to the parent‟s house   and apologized and assured that demands of car and bikes would not be made and took the deceased back.
-  Three to four months after the marriage,  on  Raksha Bandhan suits,  diamond ring and  Rs.5,100/-  were given to Payal and Gaurav whereupon  Payal‟s  brothers-in-law argued and quarreled with her that they had not got anything for them.
-  The petitioner, his wife and Gaurav demanded  a Duster Car and brothers-in-law demanded motor cycles.
-  PW-4 took dry fruits, sweets, Rs.2,100/-  for Gaurav,  Rs.1,100/-for other family members and a fully automatic washing machine on Diwali to which the mother-in-law quarreled with Payal about gold coins and clothes not being given and that PW 4 assured that the same would be given next morning. 

8.  The defence  set up by  the accused  in  the cross-examination of the six witnesses is that Gaurav and Payal were having a love affair for more than three-and-a-half years; Payal‟s father came to know of the said love affair about  two to  three months before the marriage; Gaurav‟s family approached Payal‟s family for marriage in pursuance to which  Gaurav and Payal got married on  23
rdFebruary, 2012;  Payal was insisting her husband to separate from the joint family house  immediately  to which Gaurav was  not agreeable  as he wanted to  separate  after Diwali;  Payal was a stubborn,  aggressive and emotional girl;  Payal wanted to lead an independent modern life with her husband separate from her in laws;  Payal attempted to commit suicide  twice  before;  Payal purchased Phenyl for committing suicide if Gaurav did not separate from the joint family;  Payal committed suicide because of her obstinacy for shifting immediately; Payal‟s sister also threatened to
commit suicide as she did not want to stay with her husband;  the accused  persons have  furniture showrooms  at Geeta Colony,  New Lahore Colony, Shastri Nagar,  a house at Anarkali  and a plot allotted by DDA at Rohini  besides the 200 sq. yard house at Bank Enclave; the interior decoration of the house of accused was done by Payal;  the  relationship between Payal and the accused were cordial;  the atmosphere at the joint family house was calm and cordial;  photographs show Payal being happy with Gaurav and the other accused persons in various events;  Payal is shown feeding cake to Himanshu  in  a  clipping of Himanshu‟s (one of the coaccused and brother-in-law of Payal) birthday on 21st August, 2012;  Payal stayed with her mother-in-law for her cataract operation at the Centre for  Sight  for three days;  the complainant and his family have  leveled false allegations against the accused persons regarding demand of dowry and torture out of emotion and vengeance;  the complainant engaged a private counsel from the very beginning; the complainant‟s family gave statements to the police after consulting a lawyer and taking advise from the police.

9.  In  Narender Singh Arora  v.  State, 2010 (173) DLT 244, this Court noted that whenever a woman dies an unnatural death within seven years of her marriage at in-laws' house, whatever be the cause of death, the  parents of the deceased want the  in-laws  to be hanged. This Court observed truth is losing significance because of the ego of the litigants to see that in-laws should be hanged.This Court further observed that normally in-laws are convicted on the  testimonies of parents of the girl who, in a fit of anger or because they had lost their daughter, are not prepared to believe that their daughter could commit suicide for any other reason. The testimony given by the complainant in such cases is not a normal testimony. The deceased‟s father and other family members who deposed in the court testified after the death of their daughter and their testimony is coloured with the loss they suffered due to sudden death of the daughter little realizing that she committed suicide not because of dowry demands but could be because of her fragile and sensitive nature.This Court  further  observed  that suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are  not able to bear the normal stresses which are common in life; some are not able to cope up with the circumstances in which they are placed; and some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her in-laws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her in-laws.

10.  In  Hari Gopal Wadhwa  v.  State, (143) 2007 DLT 210, this Court observed that no doubt, an unnatural death is always a cause for concern and if proved that the daughter-in-law of the family was compelled to take her own life as it was rendered not worth living by the in-laws, they must suffer. But personal liberties have to be preserved, meaning thereby, in an appropriate case, accused has to be set free till trial concludes.

11.  On careful examination of the statements of the six witnesses, this Court is of the prima facie view that although it is difficult to say ultimately what shape  the trial would take after completion of the entire evidence, but if ultimately it is found on evidence that Payal was a very sensitive person and committed suicide because she could not bear the pressure of living in joint family, the possibility of the  petitioner succeeding in establishing their defence cannot be ruled out.

12.  The petitioner as well as four other family members namely, his wife  and  three  sons  including the husband of the deceased  are in custody since 13th November, 2012.

13.  The petitioner  himself had informed the complainant about the demise of Payal without any delay.

14.  There was no ante-mortem injury on the  body  of the deceased.

15.  There is no possibility of the petitioner influencing any witness  since the statements of the six material  witnesses have already been recorded by the learned Trial Court.

16.  There is no material to show that if released on bail, the petitioner will misuse the liberty granted to him to subvert the justice.

17.  In view of the aforesaid, the bail application is allowed  and the petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/-  with one surety in the like amount to the satisfaction of the concerned Court. The petitioner is directed to surrender his passport, if any, with the Trial Court and  he  shall not leave the country  without  prior permission of the Court.

18.  All  observations made hereinabove for the purpose of dealing with the bail application  and  shall not  be considered at the time of trial of the case.

19.  Dasti.

J.R. MIDHA, J.
NOVEMBER 19, 2013

Source - http://lobis.nic.in/dhc/JRM/judgement/19-11-2013/JRM19112013BA10362013.pdf

Delhi district court-Three acquitted in dowry death case. Suicide due to Illicit relationship given color of dowry demand and death by Girl’ family

Three acquitted in dowry death case

New Delhi, Nov 14 (PTI) A Delhi court has acquitted a man and his parents of the charges of causing death of the former''s wife for dowry, noting that the accused were financially well-off to raise such demands.
Additional Sessions Judge Kamini Lau absolved Pankaj Raj, his father Surender Kumar and mother Kamlesh of the charges under Section 304 B (dowry death) and 498 A (cruelty) of the IPC.
The court took into account a number of facts like Raj''s earnings, the gifts he had given to his wife Ritu, the places he took her to on their honeymoon, besides the financial condition of Kumar and the victim.
It said that Ritu was maintaining an independent bank account and had even paid Rs 40,000 to her brother for buying a motorbike after her marriage with Raj on December 9, 2005 to conclude that she herself was capable of taking care of her financial requirements.
The court further said the demands for articles like TV and AC do not appear "plausible" as Raj was the only son of his parents and his sister was settled in the USA as professor at Harvard University.
It also said that besides the mother and brother of the deceased, no one else from her family including the father was cited as witness by the prosecution to prove their charges.
"It is clear from the evidence of the witnesses that the deceased has committed suicide but it cannot be related to any dowry-related harassment by the accused as apparently there is no proximity or link between her death and the alleged misconduct by the accused persons," the court said.
During the trial, the accused tried to point out to the court that the victim could not reconcile with her marriage as she got attached with a boy with whom she was earlier engaged and was even in touch with before committing suicide on April 10, 2006 at her matrimonial home in Janak Puri here within five months of her marriage.
"The prosecution story does not inspire confidence and is not worthy of credence, especially in view of the glaring contradictions and overwhelming inconsistencies in the statements of witnesses," the court said, acquitting the accused.

http://news.in.msn.com/national/article.aspx?cp-documentid=4576032

SC on Marriage Dowry Stridhan Tradition and 498a

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 867 OF 2009
(Arising out of SLP (Crl.) No. 4496 of 2006)
Koppisetti Subbharao @ Subramaniam ...Appellant
Versus
State of A.P. ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1 Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Andhra Pradesh High Court dismissing the petition filed under
Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code').
The prayer in the petition was to quash the proceedings in C.C.No. 440 of
1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class
Magistrate, Kakinada.
3. Background facts in a nutshell are as follows:
A case was registered against three accused persons including the
present appellant for alleged commission of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC'). Initially, the presence of A-1 could not be secured and therefore
court separated the case against A-1 and proceeded the trial against A-2 and
A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present
application was filed before the High Court taking the stand that the
complainant was not be the legally wedded wife of the appellant as he was
already married and, therefore, Section 498-A has no application to the facts
of the case.
The High Court dismissed the application on the ground that disputed
questions of fact are involved.
4. Learned counsel for the appellant submitted that in view of the
acquittal of the co-accused persons the proceedings against the appellant
should not proceed.
5. Learned counsel for the respondent-State on the other hand submitted
that whether there was valid legal marriage subsisting qua the appellant is a
question of fact and, therefore, the High Court was justified in dismissing
the application under Section 482 of Code.
6. Parties to a marriage tying nuptial knot are supposed to bring about
the union of souls. It creates a new relationship of love, affection, care and
concern between the husband and wife. According to Hindu Vedic
philosophy it is sanskar - a sacrament; one of the sixteen important
sacraments essential to be taken during one's lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the lineal
progeny for ensuring spiritual salvation and performance of religious rites,
but what is essentially contemplated is union of two souls. Marriage is
considered to be a junction of three important duties i.e. social, religious and
spiritual. A question of intricate complexity arises in this appeal where
factual scenario has to be also considered.
7. Stand of the appellant was that it was required to be shown that the
victim-woman was the legally married wife of the accused. Since victim
claim to have married during the lifetime of the appellant, prosecution has
failed to establish that it stood dissolved legally. Prosecution having failed to
bring any material record in that regard, Section 498-A has no application.
8. The marriages contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as being
that which was contracted from a sense of duty and not merely for personal
gratification. When the fact of celebration of marriage is established it will
be presumed in the absence of evidence to the contrary that all the rites and
ceremonies to constitute a valid marriage have been gone through. As was
said as long as 1869 "when once you get to this, namely, that there was a
marriage in fact, there would be a presumption in favour of there being a
marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13)
MIA 141.) So also where a man and woman have been proved to have lived
together as husband and wife, the law will presume, until contrary be clearly
proved, that they were living together in consequence of a valid marriage
and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881
(6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686)
and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as
valid by relations, friends and others for a long time it cannot be declared as
invalid. In Lokhande's case (supra), it was observed by this Court "The
bare fact that man and woman live as husband and wife it does not at any
rate normally give them the status of husband and wife even though they
may hold themselves before the society as husband and wife and the society
treats them as husband and wife". These observations were cited with
approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first
blush, it would seem that these observations run counter to the long catena
of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in the
earlier cases. In Lokhande's case (supra), this Court was dealing with a case
of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that even in the
case of gandharva marriages, ceremonies were required to be performed. To
constitute bigamy under Section 494 IPC, the second marriage had to be a
valid marriage duly solemnized and as it was not so solemnized it was not a
marriage at all in the eye of law and was therefore invalid. The essential
ingredient constituting the offence of Bigamy is the "marrying" again during
the lifetime of husband or wife in contrast to the ingredients of Section 498A
which, among other things, envisage subjecting the woman concerned to
cruelty. The thrust is mainly "marrying" in Section 494 IPC as against
subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of
the offence under Section 304B is also the "Dowry Death". Consequently,
the evil sought to be curbed are distinct and separate from the persons
committing the offending acts and there could be no impediment in law to
liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but
also any one who has undergone some or other form of marriage and thereby
assumed for himself the position of husband to live, cohabitate and exercise
authority as such husband over another woman. In Surjit Singh's case
(supra) the stand was that the marriage was in Karewa form. This Court held
that under the custom of Karewa marriage, the widow could marry the
brother or a relation of the husband. But in that case the man was a stranger.
Further even under that form of marriage certain ceremonies were required
to be performed which were not proved. Dealing with the contention relating
to presumption, reference was made to Lokhande's case (supra). As the
parties had set up a particular form of marriage which turned out to be
invalid due to absence of proof of having undergone the necessary
ceremonies related to such form of marriage, the presumption of long
cohabitation could not be invoked.
9. The presumption may not be available in a case, for example, where
the man was already married or there was any insurmountable obstacle to
the marriage, but presumption arises if there is strong evidence by
documents and conduct. Above position has been highlighted in Mayne's
Hindu Law and Usage.
10. The question as to who would be covered by the expression `husband'
for attracting Section 498A does present problems. Etymologically, in terms
of the definition of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to
be a sine qua non for applying a penal provision. In Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a
woman claimed maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of
the Marriage Act and pointed out that same was a law which held the field
after 1955, when it was enacted and Section 5 lays down that for a lawful
marriage the necessary condition that neither party should have a spouse
living at the time of the marriage is essential and marriage in contravention
of this condition therefore is null and void. The concept of marriage to
constitute the relationship of `husband' and `wife' may require strict
interpretation where claims for civil rights, right to property etc. may follow
or flow and a liberal approach and different perception cannot be an
anatheme when the question of curbing a social evil is concerned.
11. The question of origin of dowry or dos has been the subject of study
by theoreticians. Mayne says that it was a contribution by the wife's family,
or by the wife herself, intended to assist the husband in bearing the expenses
of the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her husband
had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha
Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.
12. The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was
introduced to combat the ever-increasing menace of dowry. The avowed
object is prohibition on giving and taking of dowry. Section 2 defines
"dowry". Section 4 provides the penalty for demanding "dowry", while
Section 5 is a significant provision making agreement for giving or taking
dowry to be void. Section 6 is another provision which reflects statutory
concern for prevention of dowry, be it taking or giving. It is provided therein
that pending transfer of the dowry, the person who received the dowry holds
it in trust for benefit of the woman. Amendment to Section 2 by Amendment
Act 43 of 1986 has made the provision clear and demand made after the
marriage is a part of dowry, in view of addition of words "at or before or
after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).
13. The definition of the term `dowry' under Section 2 of the Dowry Act
shows that any property or valuable security given or "agreed to be given"
either directly or indirectly by one party to the marriage to the other party to
the marriage "at or before or after the marriage" as a "consideration for the
marriage of the said parties" would become `dowry' punishable under the
Dowry Act. Property or valuable security so as to constitute `dowry' within
the meaning of the Dowry Act must, therefore, be given or demanded "as
consideration for the marriage."
14. Section 4 of the Dowry Act aims at discouraging the very "demand"
of "dowry" as a `consideration for the marriage' between the parties thereto
and lays down that if any person after the commencement of the Act,
"demands", directly or indirectly, from the parents or guardians of a `bride'
or `bridegroom', as the case may be, any `dowry' he shall be punishable
with imprisonment or with fine or within both. Thus, it would be seen that
Section 4 makes punishable the very demand of property or valuable
security as a consideration for marriage, which demand, if satisfied, would
constitute the graver offence under Section 3 of the Act punishable with
higher imprisonment and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry whichever is
more.
15. The definition of the expression `dowry' contained in Section 2 of the
Dowry Act cannot be confined merely to be `demand' of money, property or
valuable security' made at or after the performance of marriage. The
legislature has in its wisdom while providing for the definition of `dowry'
emphasized that any money, property or valuable security given, as a
consideration for marriage, `before, at or after' the marriage would be
covered by the expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression `dowry' occurs in the Act.
Meaning of the expression `dowry' as commonly used and understood is
different than the peculiar definition thereof under the Act. Under Section 4,
mere demand of `dowry' is sufficient to bring home the offence to an
accused. Thus, any `demand' of money, property or valuable security made
from the bride or her parents or other relatives by the bridegroom or his
parents or other relatives or vice-versa would fall within the mischief of
`dowry' under the Act where such demand is not properly referable to any
legally recognized claim and is relatable only to the consideration of
marriage. Marriage in this context would include a proposed marriage also
more particularly where the non-fulfilment of the "demand of dowry" leads
to the ugly consequence of the marriage not taking place at all. The
expression "dowry" under the Dowry Act has to be interpreted in the sense
which the statute wishes to attribute to it. The definition given in the statute
is the determinative factor. The Dowry Act is a piece of social legislation
which aims to check the growing menace of the social evil of dowry and it
makes punishable not only the actual receiving of dowry but also the very
demand of dowry made before or at the time or after the marriage where
such demand is referable to the consideration of marriage. Dowry as a quid
pro quo for marriage is prohibited and not the giving of traditional presents
to the bride or the bridegroom by friends and relatives. Thus, voluntary
presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not
as a consideration for marriage but out of love, affection or regard, would
not fall within the mischief of the expression `dowry' made punishable
under the Dowry Act.
16. Aryan Hindus recognised 8 forms of marriage, out of which four were
approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved
forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the
Brahma form of marriage, some amounts had to be spent by father/guardian,
as the case may be, to go ultimately to the spouses. The origin of dowry may
be traced to this amount either in cash or kind.
17. The concept of "dowry" is intermittently linked with a marriage and
the provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then
the purpose for which Sections 498A and 304B-IPC and Section 113B of the
Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced
cannot be lost sight of. Legislations enacted with some policy to curb and
alleviate some public evil rampant in society and effectuate a definite public
purpose or benefit positively requires to be interpreted with certain element
of realism too and not merely pedantically or hyper technically. The obvious
objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on, becomes a victim of the greed for
money. Can a person who enters into a marital arrangement be allowed to
take a shelter behind a smokescreen to contend that since there was no valid
marriage the question of dowry does not arise? Such legalistic niceties
would destroy the purpose of the provisions. Such hairsplitting legalistic
approach would encourage harassment to a woman over demand of money.
The nomenclature `dowry' does not have any magic charm written over it. It
is just a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but
also his relations who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage Act
deals with legitimacy of children of void and voidable marriages. Can it be
said that legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman
who unknowingly or unconscious of the legal consequences entered into the
marital relationship. If such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be against the concern shown
by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also
some relevance. According to it, the offence of bigamy will not apply to
"any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction". It would be appropriate to
construe the expression `husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in any
manner or for any of the purposes enumerated in the relevant provisions -
Sections 304B/498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 304B IPC. Such an interpretation,
known and recognized as purposive construction has to come into play in a
case of this nature. The absence of a definition of `husband' to specifically
include such persons who contract marriages ostensibly and cohabitate with
such woman, in the purported exercise of his role and status as `husband' is
no ground to exclude them from the purview of Section 304B or 498A IPC,
viewed in the context of the very object and aim of the legislations
introducing those provisions.
18. In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this
Court observed:
"The primary principle of interpretation is that a
constitutional or statutory provision should be construed
"according to the intent of they that made it" (Coke).
Normally, such intent is gathered from the language of
the provision. If the language or the phraseology
employed by the legislation is precise and plain and thus
by itself proclaims the legislative intent in unequivocal
terms, the same must be given effect to, regardless of
the consequences that may follow. But if the words used
in the provision are imprecise, protean or evocative or
can reasonably bear meanings more than one, the rule of
strict grammatical construction ceases to be a sure guide
to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and
phrases employed, it is legitimate for the Court to go
beyond the arid literal confines of the provision and to
call in aid other well-recognised rules of construction,
such as its legislative history, the basic scheme and
framework of the statute as a whole, each portion
throwing light, on the rest, the purpose of the
legislation, the object sought to be achieved, and the
consequences that may flow from the adoption of one in
preference to the other possible interpretation.
19. In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this
Court held:
"....But, if the words are ambiguous, uncertain or any
doubt arises as to the terms employed, we deem it as out
paramount duty to put upon the language of the
legislature rational meaning. We then examine every
word, every section and every provision. We examine
the Act as a whole. We examine the necessity which
gave rise to the Act. We look at the mischiefs which the
legislature intended to redress. We look at the whole
situation and not just one-to-one relation. We will not
consider any provision out of the framework of the
statute. We will not view the provisions as abstract
principles separated from the motive force behind. We
will consider the provisions in the circumstances to
which they owe their origin. We will consider the
provisions to ensure coherence and consistency within
the law as a whole and to avoid undesirable
consequences.
20. In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC
183), this Court stated:
"The legislation is primarily directed to the problems
before the legislature based on information derived from
past and present experience. It may also be designed by
use of general words to cover similar problems arising
in future. But, from the very nature of thing, it is
impossible to anticipate fully in the varied situations
arising in future in which the application of the
legislation in hand may be called for the words chosen
to communicate such indefinite referents are bound to
be in many cases, lacking in charity and precision and
thus giving rise to controversial questions of
construction. The process of construction combines both
literal and purposive approaches. In other words, the
legislative intention i.e. the true or legal meaning of an
enactment is derived by considering the meaning of the
words used in the enactment in the light of any
discernible purpose or object which comprehends the
mischief and its remedy to which the enactment is
directed".
21. The suppression of mischief rule made immortal in Heydon's case (3
Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress
the mischief which would have surfaced had the literal rule been allowed to
cover the field, the Heydon's Rule has been applied by this Court in a
number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors.
(AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR
1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR
1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data
Processing Ltd. (2003 (8) Supreme 634).
22. In Reserve Bank of India etc. etc. v. Peerless General Finance and
Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing
with the question of interpretation of a statute, this Court observed:
"Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
well say if the text is the texture, context is what gives
the colour. Neither can be ignored. Both are important.
That interpretation is best which makes the textual
interpretation match the contextual. A statue is best
interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole
and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at in the
context of its enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour
and appear different than when the statute is looked at
without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation. Statutes
have to be construed so that every word has a place and
everything is in its place."
23. In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA),
Lord Denning, advised a purposive approach to the interpretation of a word
used in a statute and observed:
"The English language is not an instrument of
mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of
Acts of Parliament have often been unfairly criticised. A
Judge, believing himself to be fettered by the supposed
rule that he must look to the language and nothing else,
laments that the draftsmen have not provided for this or
that, or have been guilty of some or other ambiguity. It
would certainly save the Judges trouble if Acts of
Parliament were drafted with divine prescience and
perfect clarity. In the absence of it, when a defect
appears, a Judge cannot simply fold his hands and
blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament,
and he must do this not only from the language of the
statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must
supplement the written word so as to give `force and
life' to the intention of the legislature......A Judge should
ask himself the question how, if the makers of the Act
had themselves come across this ruck in this texture of
it, they would have straightened it out? He must then do
so as they would have doe. A Judge must not alter the
material of which the Act is woven, but he can and
should iron out the creases."
(underlined for emphasis)
24. These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004
(3) SCC 199.
25. The High Court was justified in holding that disputed questions of fact
are involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the
High Court. However, we make it clear that we have not expressed any
opinion on the merits of the case.
26. The appeal is dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
(ASOK KUMAR GANGULY)
New Delhi,
April 29, 2009

http://www.indiankanoon.org/doc/389094/

No conviction for mere dowry demands - SC

             IN THE SUPREME COURT OF INDIA
             CRIMINAL APPELLATE JURISDICTION
             CRIMINAL APPEAL No. 854 of 2004

Amar Singh                                   ...... Appellant

                          Versus

State of Rajasthan                         ...... Respondent

                           WITH

         CRIMINAL APPEAL No.1411           of 2010
        (Arising out of SLP (Crl.) No. 4389 of 2004)

State of Rajasthan                           ...... Appellant

                          Versus

Jagdish & Anr.                             ...... Respondents

                         JUDGMENT

A.K. PATNAIK, J.

CRIMINAL APPEAL No. 854 of 2004

     This is an appeal against the judgment dated 07.10.2003

of the High Court of Rajasthan, Jaipur Bench, in D.B.

Criminal Appeal No.816 of 1998.
                               2

2.     The facts very briefly are that on 05.05.1992 Santosh

(the   deceased)   was   married   to   the   appellant   and   on

08.03.1993 she was found dead in her in-laws house. On the

same day, a written report was lodged with the police at the

Shivaji Park Police Station at Alwar, by the uncle of the

appellant, Ganga Sahai Saini, saying that while the deceased

was boiling the water she got engulfed in flames and died. On

the same day, another written report was lodged with the

police by the father of the deceased, Babu Lal, that the

deceased used to be harassed and humiliated in connection

with demand of dowry and on receiving the information that

she has died in an electric current accident, he rushed to the

spot and found the body of Santosh in charred condition. On

the basis of such information given by Babu Lal, the police

registered FIR No.53 of 1993 for the offences under Sections

498A and 304B of the Indian Penal Code (for short `IPC'). The

investigation was carried out and charge-sheet was filed by the

police in the Court of Additional Chief Judicial Magistrate

No.2, Alwar, against the appellant, Jagdish (younger brother of

the appellant), Smt. Gordhani (mother of the appellant), Khem
                              3

Chand (sister's husband of the appellant), Gyatri Devi (wife of

Khem Chand) and Girdhari Lal (father of Khem Chand). The

case was committed to the Sessions Court and tried by the

Additional Sessions Judge No.2, Alwar, as Sessions Case

No.32 of 1998. The Additional Sessions Judge framed charges

under Section 147, 304B and 498A IPC against all the

accused persons.   At the trial, the prosecution examined 16

witnesses and exhibited 31 documents. After statement of the

accused under Section 313 of the Code of Criminal Procedure

(for short `Cr.P.C.'), no defence witness was examined.    The

Additional Sessions Judge convicted the appellant, Jagdish

and Gordhani under Sections 498A and 304B IPC and

imposed the sentence of three years rigorous imprisonment

and a fine of Rs.1,000/-, in default to suffer further three

months' simple imprisonment for the offence under Section

498A IPC and imposed the sentence of imprisonment for life

and a fine of Rs.5,000/-, in default further six months' simple

imprisonment for the offence under Section 304B IPC.        On

appeal, the High Court acquitted Jagdish and Gordhani but

confirmed the conviction of the appellant under Section 498A
                              4

and 304B IPC.

3.   Mr. Tara Chandra Sharma, learned counsel for the

appellant, submitted that the appellant has already served out

the sentence under Section 498A IPC and, therefore, his

challenge in this appeal is confined to the conviction and

sentence under Section 304B IPC.      He submitted that the

main ingredient of the offence under Section 304B IPC is that

the deceased must have been subjected to cruelty or

harassment in connection with any "demand for dowry" and in

this case the prosecution has not established that the

deceased was subjected to cruelty or harassment by the

appellant in connection with any demand for dowry.          In

support of his submission, he relied on the decisions of this

Court in Biswajit Halder   alias Babu Halder and Others v.

State of West Bengal [(2008)1 SCC 202] and Durga Prasad and

Another v. The State of M.P. [2010(6) SCALE 18]. He referred

to the evidence of PW-2 (father of the deceased), PW-4 (mother

of the deceased) and PW-5 (brother of the deceased) to show

that there was no demand for dowry made by the appellant

and that the appellant only wanted Rs.10,000/- to start a
                               5

shop and this request for a sum of Rs.10,000/- cannot be held

to be a demand for dowry.

4.   He further submitted that there were, in fact, material

contradictions in the testimony of PW-2, PW-4 and PW-5 with

regard to the demand for dowry and, therefore, their evidence

cannot be relied upon to sustain the conviction of the

appellant. He submitted that in any case the evidence of PW-

2, PW-4 and PW-5 on whatever was stated to them by the

deceased regarding demand for dowry and harassment or

cruelty were at best hearsay evidence and not admissible

either under Section 60 of the Indian Evidence Act, 1872 or

under Section 32 of the Indian Evidence Act, 1872. In support

of his submission, he cited Rattan Singh v. State of H.P. [(1997)

4 SCC 161].

5.   He finally submitted that the court while recording the

statement of the appellant under Section 313 Cr.P.C. did not

put any question to enable the appellant to explain any

circumstances appearing in the evidence against him.          He

relied on Latu Mahto and Another v. State of Bihar (Now

Jharkhand) [(2008) 8 SCC 395] to contend that circumstances
                             6

about which the accused was not asked to explain cannot be

used against him. According to learned counsel Mr. Sharma,

this is not a case where the prosecution has been able to

establish the offence under Section 304B IPC against the

appellant and hence the judgment of the High Court should be

set aside.

6.   Dr. Manish Singhvi, learned counsel appearing for the

State of Rajasthan, in reply submitted that the facts of this

case would show that the deceased did not die under normal

circumstances.   He referred to the post-mortem report (Ex.P-

21) which indicated that the deceased suffered 100% burns.

He submitted that Dr. Mahendra Kr. Gupta (PW-9), who

performed the autopsy, has opined that the burns on the

deceased were after strangulation and throttling inasmuch as

there were fractures of larynx and trachea and the larynx was

found congested. He submitted that the deceased got married

on 05.05.1992 and died on 08.03.1993 within ten months of

the marriage and there was sufficient evidence to show that

she was subjected to cruelty and harassment by the appellant

and other members of his family.
                               7

7.     He submitted that the evidence of PW-2, PW-4 and PW-5

establishes that there was demand for dowry of a Scooter or

Rs.25,000-/. He referred to the evidence of PW-4 and PW-5 to

show that the appellant used to taunt the deceased saying

that she has come from a hungry house and that the appellant

had himself visited the house of PW-4 and demanded a sum of

Rs.10,000/-.    He vehemently submitted that this is a clear

case of continuous harassment of the deceased in connection

with demand of dowry not only by the appellant but also by

his other family members. He cited Pawan Kumar and Others

v. State of Haryana [(1998) 3 SCC 309] to contend that such

taunting and teasing of a bride for not bringing dowry amount

to harassment or cruelty within the meaning of Section 304B

IPC.

8.     In reply to the submission of Mr. Sharma that statements

made by the deceased before PW-2, PW-4 and PW-5 regarding

harassment and demand of dowry were not admissible either

under Section 60 or under Section 32 of the Evidence Act, he

submitted that this Court in Sharad Birdhichand Sarda v.

State of Maharashtra [(1984) 4 SCC 116] has held that Section
                              8

32 of the Indian Evidence Act is an exception to the rule of

hearsay and makes admissible the statement of a person who

dies, provided the statement related to the cause of death or

exhibits circumstances leading to the death.     He submitted

that in the present case the statements made by the deceased

to PW-2, PW-4 and PW-5 related to the cause of her death,

namely, demand for dowry and therefore would be admissible

under Section 32 of the Indian Evidence Act, even if the

deceased while making the statement was not expecting the

death. He submitted that in the present case the prosecution

has firmly established that soon before her death the deceased

has been subjected to cruelty or harassment by the appellant

in connection with demand for dowry and therefore the Court

has to presume under Section 113B of the Indian Evidence Act

that the appellant has caused the dowry death and this

presumption has not been rebutted by the appellant by

leading any evidence.

9.   Dr. Singhvi finally submitted that since there were

concurrent findings of fact rendered by the trial court and the

High Court that the deceased died due to asphyxia and was
                              9

burnt after strangulation so as to make out a case of accident

and the burns on the body of the deceased were found to be

100%, this was a case of ghastly murder and therefore not a fit

case in which this Court should either set aside the conviction

of the appellant or reduce the sentence imposed on him by the

High Court.

10.   We find that the evidence of PW-4 (mother of the

deceased) is that after marriage, the deceased came several

times and she also came about one month prior to her death

and she used to complain about the demand of a Scooter and

harassment by her mother-in-law Gordhani and that she had

also told that the appellant used to taunt her that she has

come from a hungry house and brought nothing and the last

time when she came she stayed for two days and returned and

one month thereafter she was murdered.          Similar is the

evidence of PW-5 (brother of the deceased) that whenever the

deceased used to come home she used to complain that her

in-laws have been teasing her and she had also stated that

they demanded Scooter or Rs.25,000/- for a shop and that

one month prior to her death she came home and complained
                              1

that her mother-in-law and all other in-laws used to torture

her and taunt her that she did not bring anything and that the

appellant also used to tease her.    It is thus clear from the

evidence of PW-4, as corroborated by the evidence of PW-5,

that the deceased has made statements before them that her

in-laws as well as the appellant have been demanding a

Scooter or Rs.25,000/- for a shop and have been taunting and

teasing her for not meeting the demand of dowry within a

couple of months before her death.       Such evidence of PW-4

and PW-5 with regard to the statements made by the deceased

is no doubt hearsay but is admissible under clause (1) of

Section 32 of the Indian Evidence Act.

11.   Clause (1) of Section 32 of the Indian Evidence Act

provides that statements made by a person as to the cause of

his death, or as to any of the circumstances of the transaction

which resulted in his death, in cases in which the cause of

that person's death comes into question, are themselves

relevant facts. In the present case, the cause of death of the

deceased was a question to be decided and the statements

made by the deceased before PW-4 and PW-5 that the
                               1

appellant used to taunt the deceased in connection with

demand of a Scooter or Rs.25,000/- within a couple of months

before the death of the deceased are statements as to "the

circumstances of the transaction which resulted in her death"

within the meaning of Section 32(1) of the Indian Evidence

Act.

12.    In Pakala Narayana Swami v. Emperor [AIR 1939 PC 47]

Lord Atkin held that circumstances of the transaction which

resulted in the death of the declarant will be admissible if

such circumstances have some proximate relation to the

actual occurrence. The test laid down by Lord Atkin has been

quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand

Sarda v. State of Maharashtra (supra) and His Lordship has

held that Section 32 of the Indian Evidence Act is an exception

to the rule of hearsay evidence and in view of the peculiar

conditions in the Indian Society has widen the sphere to avoid

injustice. His Lordship has held that where the main evidence

consists of statements and letters written by the deceased

which are directly connected with or related to her death and

which reveal a tell-tale story, the said statements would clearly
                               1

fall within the four corners of Section 32 and, therefore,

admissible and the distance of time alone in such cases would

not make the statements irrelevant.      The difference in the

English Law and the Indian Law has been reiterated in Rattan

Singh v. State of H. P. (supra) and it has been held therein that

even if the deceased was nowhere near expectation of death,

still her statement would become admissible under Section 32

(1) of the Indian Evidence Act, though not as a dying

declaration as such, provided it satisfies one of the two

conditions set forth in this sub-section. The argument of Mr.

Sharma, therefore, that the evidence of PW-4 and PW-5

regarding the statements made by the deceased before them

are hearsay and are not admissible is misconceived.

13.   The prosecution, therefore, has been able to show that

soon before her death the deceased has been subjected by the

appellant to taunt in connection with demand for dowry. This

Court has held in Pawan Kumar and Others v. State of

Haryana (supra) that a girl dreams of great days ahead with

hope and aspiration when entering into a marriage, and if

from the very next day the husband starts taunting her for not
                               1

bringing dowry and calling her ugly, there cannot be greater

mental torture, harassment or cruelty for any bride and such

acts of taunting by the husband would constitute cruelty both

within the meaning of Section 498A and Section 304B IPC.

14.   Once it is established by the prosecution that soon before

her death the deceased was subjected by the appellant to

harassment or cruelty in connection with demand for dowry,

the Court has to presume that the appellant has committed

the offence under Section 304B IPC. This will be clear from

Section 113B of the Indian Evidence Act which states that

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. The prosecution in this case had led

sufficient evidence before the Court to raise a presumption

that the appellant had caused the dowry death of the deceased

and it was, therefore, for the appellant to rebut this

presumption.
                               1

15.   Mr. Sharma has, however, argued that the appellant was

not given such opportunities to personally explain any

circumstances appearing in the evidence against him. But we

find from the statement of the appellant recorded under

Section 313 Cr.P.C. that the evidence of PW-4 that the

deceased came to her house many times after marriage and

lastly came to her house prior to her death saying that

Girdhari and Khem Chand demanded a Scooter and that the

appellant said that she came from a poor family, was brought

to the notice of the appellant but the appellant simply denied

the same. The appellant has also chosen not to examine any

defence witness to rebut the presumption of dowry death

against him under Section 113B of the Indian Evidence Act.

The trial court and the High Court were thus right in holding

that the appellant was guilty of the offence under Section

304B IPC.

16.   For the offence under Section 304B IPC, the trial court

has imposed the maximum punishment of life imprisonment

saying that the appellant has sacrificed the newly-wed bride

with cruelty and harshness to satisfy his lust of dowry illegally
                                1

and hence he does not deserve any mercy and considering the

nature of the offence committed by him and his conduct, he

deserves the maximum punishment of life imprisonment. The

High Court has only sustained the conviction and punishment

of life imprisonment imposed on the appellant under Section

304B IPC.     Dr. Singhvi, however, suggested that this was a

case of strangulation of a bride before she was burnt and for

this   reason,   the   High   Court   sustained   the   maximum

punishment of life imprisonment.

17.    The fact remains that the appellant was not charged for

the offence of murder under Section 302 IPC presumably

because during investigation no materials were available to

establish the offence under Section 302 IPC against the

appellant.   In Smt. Shanti and Another v. State of Haryana

[(1991) 1 SCC 371] cited by Mr. Sharma, this Court has held

that where there is no evidence as to the actual part played by

the accused, a minimum sentence of seven years would serve

the ends of justice.    In the present case, since there is no

evidence as to the actual role played by the appellant in the
                                1

death   of   the   deceased,   a     punishment      of    ten   years'

imprisonment would suffice in the ends of justice.

18.   In the result, the appeal is partly allowed and the

sentence of life imprisonment imposed on the appellant under

Section 304B IPC is reduced to ten years and the impugned

judgment of the High Court is modified accordingly. In case

the   appellant    has   undergone    the   period    of   ten   years

imprisonment, he shall be released forthwith unless he is

wanted in any other case.

CRIMINAL APPEAL No. 1411           of 2010
(Arising out of SLP (Crl.) No. 4389 of 2004)

      Leave granted.

2.    This is an appeal filed by the State of Rajasthan against

the judgment dated 07.10.2003 of the                 High Court of

Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of

1998 acquitting Jagdish and Gordhani of the charges under

Sections 498A and 304B IPC.

3.    The only contention raised by Dr. Manish Singhvi,

learned counsel for the State of Rajasthan, is that although
                              1

the evidence on record against Amar Singh, Jagdish and

Gordhani was the same, the High Court took the view that

Jagdish and Gordhani have been implicated because they

were members of Amar Singh's family and that the charges

against them are not proved beyond reasonable doubt.        He

vehemently submitted that no reasons whatsoever have been

indicated by the High Court in the impugned judgment to

show how the cases of Jagdish and Gordhani were different

from that of Amar Singh. According to him, the High Court

should have sustained the order of the trial court convicting

Jagdish and Gordhani.

4.   We are unable to accept this submission of Dr. Singhvi.

The evidence of PW-2, PW-4 and PW-5 shows that Jagdish and

Gordhani played a role in the demand of dowry of a Scooter or

Rs.25,000/- for Amar Singh, but demand of dowry by itself is

not an offence under Section 498A or Section 304B IPC.

What is punishable under Section 498A or Section 304B IPC is

the act of cruelty or harassment by the husband or the relative

of the husband on the woman. It will be also clear from

Section 113B of the Indian Evidence Act that only when it is
                             1

shown that soon before her death a woman has been

subjected by any 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 within

the meaning of Section 304B IPC.    The act of subjecting a

woman to cruelty or harassment for, or in connection with,

any demand for dowry by the accused, therefore, must be

established by the prosecution for the Court to presume that

the accused has caused the dowry death.

5.   PW-2 (father of the deceased) has not stated in his

evidence before the Court that Jagdish and Gordhani, in any

way, subjected the deceased to any harassment or cruelty.

PW-4 (mother of the deceased), however, has stated that the

deceased used to complain about the demand of a Scooter by

Girdhari and harassment by her mother-in-law Gordhani, but

PW-4 has not stated what was the exact act of Gordhani by

which the deceased felt harassed.    The evidence of PW-5

(brother of the deceased) is that whenever the deceased used

to come home she used to complain that her in-laws have

been teasing her and they were demanding a Scooter or
                               1

Rs.25,000/- for a shop and that when the deceased came

home one month prior to her death, she complained that her

mother-in-law and all other in-laws used to torture her and

taunt her that she did not bring anything, but PW-5 has not

described the exact conduct of the mother-in-law and other in-

laws on account of which the deceased felt tortured and

taunted. On the other hand, the evidence of PW-4 is clear that

Amar Singh used to taunt her that she has come from a

hungry house. Thus, there was evidence in the case of Amar

Singh about his exact conduct which caused harassment to

the deceased but there was no such evidence in the case of

Jagdish and Gordhani.     A prosecution witness who merely

uses the word "harassed" or "tortured" and does not describe

the exact conduct of the accused which, according to him,

amounted to harassment or torture may not be believed by the

Court in cases under Section 498A and 304B IPC. For this

reason, the High Court has taken a view that the charges

against Jagdish and Gordhani have not been established

beyond   reasonable    doubt       and   that   their   case   is

distinguishable from that of Amar Singh and that Jagdish and
                               2

Gordhani appear to have been implicated because they were

members of Amar Singh's family.

6.   In Kans Raj v. State of Punjab and Others [(2000) 5 SCC

207], this Court cautioned that in cases where accusations of

dowry deaths are made, the overt acts attributed to persons

other than the husband are required to be proved beyond

reasonable doubt and by mere conjectures and implications

such relations cannot be held guilty for the offence relating to

dowry deaths.     In the aforesaid case, this Court further

observed that a tendency has 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.

7.   We, therefore, do not find any substance in the

contention of Dr. Singhvi that the High Court should have

sustained the conviction of Jagdish and Gordhani and we

accordingly dismiss this appeal.

                                             ..........................J.
                                            (R. M. Lodha)
                   2

                        ..........................J.
                       (A. K. Patnaik)
New Delhi,
August 03, 2010.

Citations for 498a-juridiction, discharge (239crpc),allegation that attract, material evidence for dowry demand

498A Jurisdiction Citations:

1.     Manish Ratan and Ors. Vs State of M.P and Anr. Reported in 2007 volume-1 SCC 262.
2.     Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another reported in 2004, SCC Crl-2134.
3.     Satvinder Kaur vs. State (Govt. of NCT of Delhi) (1999) 8 SCC 728
4.     Bhanu Ram and Ors. Vs State of Rajasthan 7 Anr in CASE NO: Appeal (crl.) 587 of 2008 [arising out of Special Leave Petition (Crl.) No. 79 of 2006).
5.     Sonu and Ors Vs Govt. of NCT of Delhi and Anr. in W.P (Crl.). No.1266/2007, Decision on 10.10.2007.

Discharge U/s 239 CrPC:

1.     State of Karnataka v. L. Muniswamy AIR 1977 SC 1489
2.     State of Maharashtra and Ors. v. Som Nath Thapa and Ors. AIR 1996 SC 1744
3.     Omwati and Anr Vs. State AIR 2001 SC 1507
4.     Kanti Bhadra Shah and Anr. Vs. State of W.B. AIR 2000 SC 522
5.     Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715
6.     State of Bihar vs. Ramesh singh AIR 1977 SC 2018
7.     Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52
8.     Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766
9.     State of M.P. v. Mohanlal Soni AIR 2000 SC 2583

Section 498A IPC attracts when allegations in the nature as described in the below Judgements:

1.     State of H.P.V Nikku Ram & Ors 1995 (6) SCC 219
2.     V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710
3.     CRIMINAL APPEAL NO. 299 OF 2003 MANJU RAM KALITA vs. STATE OF ASSAM
4.     Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414
5.     Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078
6.     Dr.N.G.Dastane Vs. Mrs.S.Dastane (1975) 2 SCC 326
7.     Richhpal Kaur v. State of Haryana and Anr. 1991 (2)
8.     Smt. Sarla Prabhakar Waghmare v State of Maharashtra & Ors 1990 (2) RCR 18
9.     Shobha Rani v Madhukar Reddy AIR 1998 SC 121

Material evidence required on demand of dowry:

1)     M. Srinivasulu v. State of A.P., AIR 2007 SC 3146,
2)     Ran Singh and Anr. Vs. State of Haryana and Anr, Case no. appeal (Crl) 222 of 2008 arising out of SLP (Crl.) No. 3089 of 2006
3)     Appasaheb & Anr. v. State of Maharashtra, AIR 2007 SC 763,
4)     Shivanand Mallappa Koti v. State of Karnataka, AIR 2007 SC 2314,
5)     Sukhram v. State of Maharashtra, AIR 2007 SC 3050,
6)     Hira Lal & Ors. v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865.
7)      Kaliyaperumal & Anr. v. State of Tamil Nadu, AIR 2003 SC 3828.