and Anr Vs. State of Kerala  Insc 144 (9 March 2004)
Sabharwal & Arijit Pasayat Arijit Pasayat, J.
of dowry cuts across caste, religion and geographical location. In the instant
case, victim belonged to a remote village in the State of Kerala. The two appellants stood charged
for alleged commission of offence punishable under Section 304B read with
Section 34 of the Indian Penal Code, 1860 (in short 'the IPC'). The Trial Court
found that the prosecution has failed to establish the accusations and directed
appeal preferred by the State, the judgment of acquittal was set aside and the
accused persons were found guilty under Section 304B read with Section 34 IPC
and each was sentenced to undergo RI for seven years.
victim in this case was one Sherifa (hereinafter referred to as 'the deceased')
and the accused-appellants 1 and 2 were her husband and mother-in-law
to the prosecution following is the factual scenario:
deceased was married to the appellant no.1 (A-1) on 19.1.1989. At the time of
marriage, there was an agreement to pay Rs.35000/- as dowry. Since the entire
amount was not paid, the accused was subjected to mental and physical
harassment. On 29.8.1991 about 9.00 a.m. she
committed suicide by jumping into a well. Information was lodged by Kunhimoidi
(PW-1), a neighbour and investigation was undertaken. The case was registered
under the heading 'unnatural death'. On completion of investigation, charge
sheet was filed. Seventeen witnesses were examined to further the prosecution
version, while the accused persons pleaded innocence and examined 3 witnesses.
According to them, the deceased had accidentally fallen into the well and it
was not a case of suicide. As noted above, the Trial Court found that there
were some unexplained discrepancies in the evidence of the main witnesses i.e PWs
5, 6 and 15 relating to demand of dowry and, therefore, it would be unsafe to
convict accused persons.
appeal, the High Court found that the approach of the Trial court was not
correct. It found that the evidence of PWs 6 and 15 clearly established the
commission of offence by the accused persons.
support of the appeal, learned counsel for the accused-appellants submitted
that there was no dispute regarding payment of a sum of Rs.30,000/- as dowry.
In fact, this amount was kept in a bank account in the name of the deceased and
this itself negates the plea of prosecution that there was greed for money.
Further, the deceased had herself withdrawn money and given the same to
somebody. The claim of Kunhammed and Kunhi Choyi (PWs 6 and 15 respectively)
that they witnessed the occurrence is improbabilised by the evidence of Prema
(PW-5) who was stated to be an eyewitness. Her evidence rules out theory of
suicide and the possibility of PWs 6 and 15 seeing the alleged occurrence. The
well admittedly was not covered on the sides and it was possible as was held by
the Trial Court that the deceased had slipped. Since the view taken by the
Sessions Judge was a possible view, the High Court should not have interfered
with the same. Furthermore, the evidence of prosecution in no way shows that
the accused no.2 allegedly demanded dowry. Moideen (PW-8) had himself stated
that he did not have any idea if any amount in excess of Rs.30,000/- was
demanded as dowry. There was no harassment after the payment of Rs.30,000/-.
Therefore, there was no question of any demand immediately prior to the alleged
occurrence. Section 304B has therefore no application.
response, learned counsel for the State of Kerala submitted that both the Trial Court and the High Court have discarded
the plea taken by the accused persons that the deceased accidentally fell into
the well. The Trial court proceeded on erroneous premises to hold that the
demand of dowry has not been established overlooking the cogent evidence of Moideen
and Kunhammed (PWs 8 and 12 respectively). Moreover, PWs 3 and 4 who were neighbours
categorically stated about the harassment meted out to the deceased for
non-payment of dowry.
304B IPC deals with dowry death which reads as follows:
Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection
with any demand for dowry, such death shall be called "dowry death"
and such husband or relative shall be deemed to have caused her death.
Explanation For the purpose of this sub-
section "dowry" shall have same meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment
for life." The provision has application when death of a woman is caused
by any burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any relatives of
her husband for, or in connection with any demand for dowry. In order to
attract application of Section 304B IPC, the essential ingredients are as
The death of a woman should be caused by burns or bodily injury or otherwise
than under a normal circumstance.
Such a death should have occurred within seven years of her marriage.
must have been subjected to cruelty or harassment by her husband or any
relative of her husband.
Such cruelty or harassment should be for or in connection with demand of dowry.
Such cruelty or harassment is shown to have been meted out to the woman soon
before her death.
113B of the Indian Evidence Act, 1872 (in short the 'Evidence Act') is also
relevant for the case at hand.
Section 304B IPC and Section 113B of the Evidence Act were inserted by the
Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the
increasing menace of dowry deaths. Section 113B reads as follows:- "113B:
Presumption as to dowry death- 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.
For the purposes
of this section "dowry death" shall have the same meaning as in
Section 304B of the Indian Penal Code (45 of 1860)." The necessity for
insertion of the two provisions has been amply analysed by the Law Commission
of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'.
Keeping in view the impediment in the pre-existing law in securing evidence to
prove dowry related deaths, legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of certain essentials. It is in
this background presumptive Section 113B in the Evidence Act has been inserted.
As per the definition of 'dowry death' in Section 304B IPC and the wording in
the presumptive Section 113B of the Evidence Act, one of the essential
ingredients, amongst others, in both the provisions is that the concerned woman
must have been "soon before her death" subjected to cruelty or
harassment "for or in connection with the demand of dowry".
Presumption under Section 113B is a presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the Court to raise a presumption
that the accused caused the dowry death. The presumption shall be raised only
on proof of the following essentials:
The question before the Court must be whether the accused has committed the
dowry death of a woman. (This means that the presumption can be raised only if
the accused is being tried for the offence under Section 304B IPC).
The woman was subjected to cruelty or harassment by her husband or his relatives.
Such cruelty or harassment was for, or in connection with any demand for dowry.
Such cruelty or harassment was soon before her death.
conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows
that there must be material to show that soon before her death the victim was
subjected to cruelty or harassment. Prosecution has to rule out the possibility
of a natural or accidental death so as to bring it within the purview of the
'death occurring otherwise than in normal circumstances'. The expression 'soon
before' is very relevant where Section 113B of the Evidence Act and Section
304B IPC are pressed into service. Prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment and only in that case
presumption operates. Evidence in that regard has to be led by prosecution.
'Soon before' is a relative term and it would depend upon circumstances of each
case and no strait-jacket formula can be laid down as to what would constitute
a period of soon before the occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a proximity test both for
the proof of an offence of dowry death as well as for raising a presumption
under Section 113B of the Evidence Act. The expression 'soon before her death'
used in the substantive Section 304B IPC and Section 113B of the Evidence Act
is present with the idea of proximity test. No definite period has been
indicated and the expression 'soon before' is not defined.
reference to expression 'soon before' used in Section 114.
(a) of the Evidence Act is relevant. It lays down that a Court may presume that
a man who is in the possession of goods 'soon after the theft', is either the
thief, or has received the goods knowing them to be stolen, unless he can
account for its possession. The determination of the period which can come
within the term 'soon before' is left to be determined by the Courts, depending
upon facts and circumstances of each case. Suffice, however, to indicate that
the expression 'soon before' would normally imply that the interval should not
be much between the concerned cruelty or harassment and the death in question.
must be existence of a proximate and live-link between the effect of cruelty
based on dowry demand and the concerned death. If alleged incident of cruelty
is remote in time and has become stale enough not to disturb mental equilibrium
of the woman concerned, it would be of no consequence.
the aforesaid factual scenario as described by Narayani (PW 3), Safiya (PW-4),
and PWs 8 and 12 is considered in the background of legal principles set out
above, the inevitable conclusion is that accusations have been clearly
established so far as accused-appellant no.1 husband of the deceased is
concerned. But in respect of accused-appellant No.2, evidence against her
relating to alleged demand of dowry is not cogent, and no credible evidence has
been brought on record to substantiate the accusations. Therefore, while
upholding the conviction and sentence imposed so far accused-appellant no.1 is
concerned, we direct acquittal of accused-appellant no.2.
accused-appellant no.1 is directed to surrender to custody to serve remainder
of sentence, if any. The bail bonds of accused-appellant no.2 be cancelled.
appeal is accordingly disposed of.