View the entire Judgement below.
Aug 5, 2010
NEW DELHI: The Supreme Court has ruled that a person cannot be convicted for merely demanding dowry unless the demand is followed by mental or physical torture resulting in the death of the victim.
A Bench of Justices R M Lodha and A K Patnaik said in a judgement that the prosecution has to establish convincing evidence that the accused had subjected the victim to torture soon before her death in connection with the demand.
"The evidence of Prosecution Witness-2, PW-4 and PW-5 shows that Jagdish and Gordhani played a role in the demand of dowry for 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 of IPC is the act of cruelty or harassment by the husband or the relative of the husband against the woman," the Bench said.
The bench passed the judgement while upholding the acquittal of Gordhani, mother-in-law, and Jagdish, brother-in-law, in a dowry death case of newly-married woman Santosh in Rajasthan's Alwar district in March, 8, 1993. It however, upheld the conviction of the husband Amar Singh.
The sessions court had convicted all the three for dowry death (304B) and 498A (harassment of married woman by husband/relatives).
The Rajasthan High Court had on an appeal from the accused quashed the conviction of Jagdish and Gordhari while sustaining the life sentence imposed on Amar Singh.
While the state government had appealed against the acquittals, Amar Singh challenged his conviction.
Judgement
Click here for Judgement in pdf format
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
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.
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