Vs. State of A.P.  Insc 908 (10 September 2007)
Arijit Pasayat & D.K. Jain
APPEAL NO. 11 OF 2002 Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Andhra Pradesh High Court upholding the conviction of the appellant for
offences punishable under Sections 304 B and 498 A of the Indian Penal Code,
1860 (in short the 'IPC'). Sentence of seven years was imposed on each count.
By the impugned judgment conviction recorded in respect of co-accused Laxmi was
set aside and she was directed to be acquitted.
Background facts as projected by prosecution in a nutshell are as follows:
@ Pitchamma (hereinafter referred to as the 'deceased') was married to accused
No.1-Srinivasulu on 21.5.1989. At the time of marriage, PW.1 father of the
deceased gave rupees 10,000/- in cash, five tolas of gold, other household
articles worth Rs.3000/- and Rs.1200/- towards clothes to accused No.1, who was
employed as sub-staff of Karnataka Bank, Secunderabad. Accused No.2 is the
mother of accused No.1 and she used to visit accused No.1 in the city and did
not allow the deceased to fulfil conjugal obligations. At the instigation of
accused No.2, accused No.1 had demanded Rs.5,000/- more from the parents of the
deceased to purchase a Scooter as additional dowry. PW.1, father of the
deceased paid the said amount to accused No.1. In spite of the same, both the
accused made repeated demands for additional dowry upon the deceased. On one
occasion, a sum of Rs.1,000/- and on another occasion a sum of Rs.2,000/- was
paid by PW.1 to the accused. But the accused persons did not stop ill-
treatment and harassment towards the deceased. After some time, when the
deceased and her parents came to know that accused No.2 was thinking of a
second marriage of accused No.1, immediately they went to the house of the
accused but accused No.1 refused to take the deceased into the house.
No.2 ill-treated the deceased and both the accused asked the deceased to go
back to her parents' house. Accused No.1 threatened to immolate the deceased
and accused No.2 threatened to poison the deceased and insisted that she
continues to stay in the house of her parents. Therefore, the deceased was
taking shelter in the house of her parents and about 2 months prior to the
incident, on the assurance given by both the accused before the elders, the
deceased joined accused Nos.1 and 2 to fulfil conjugal obligations. In spite of
the same, the accused continued ill-treatment and harassment for more dowry.
Because of the persistent ill- treatment and cruelty meted out by the accused
towards the deceased, on 17.9.1992 at about 9.30 a.m. the deceased set herself ablaze and died with 100% burn
injuries in Gandhi Hospital while undergoing treatment.
information report was filed, investigation was undertaken and on completion
thereof charge sheet was filed.
persons pleaded innocence.
establish its accusations prosecution examined 11 witnesses and 16 documents
were exhibited. PWs. 1 and 2 were the father and mother of the deceased
respectively while PW3 was a relative. PW4 was a brother of the deceased while
PW5 was the sister of the deceased. PW 6 was a caste elder.
is the Doctor who conducted the autopsy while PW 11 was the investigating
officer. On consideration of the evidence on record, learned II Additional
Metropolitan Sessions Judge, Hyderabad
convicted the appellant for offence punishable under Section 304B and sentenced
him to undergo imprisonment for ten years and to pay a fine of Rs.10,000/- with
default stipulation. The acquitted co-accused A2 i.e. the mother of the
appellant was sentenced to undergo imprisonment for seven years. Though the
accused person was found guilty for offence punishable under Section 498A no
separate sentence was imposed. Questioning correctness of the trial court's
judgment, an appeal was preferred before the High Court by both the accused. It
was essentially the stand of the appellant before the High Court that there was
no material to show any demand of dowry and therefore neither Section 498A nor
Section 304B had any application. It was pointed out that the deceased stayed
for only 12 days at the matrimonial home. Reference was made to several letters
which clearly establish that the deceased was unhappy not because of any demand
of dowry but because the appellant used to stay most of the times with the
parents and the mother in law was taking objection to her long absence from the
marital home. The High Court did not find any substance in the stand of the
appellant but found that there was no material to show that the co-accused i.e.
the mother in law was guilty of the charged offences. Accordingly her
conviction was set aside and she was acquitted. However, in case of the appellant
the conviction was maintained and the sentence was reduced as afore-stated.
support of the appeal, it was submitted that there is no evidence of any dowry
demand. On the contrary, the letters on which prosecution placed reliance
indicated that the dispute was not relating to demand of dowry but was on
account of normal marital discord.
Learned counsel for the respondent on the other hand supported the impugned
Section 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.
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
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 follows:-
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.
She 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.
Section 113B of the Evidence Act is also relevant for the case at hand. Both
Section 304B IPC and Section 113B of the Evidence Act were inserted as noted
earlier 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 304-B of the Indian Penal Code (45 of 1860)."
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
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
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 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. A reference to expression 'soon after' used in Section
114 (illustration (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 his 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. There 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
Section 498A reads as follows:
Husband or relative of husband of a woman subjecting her to cruelty- Whoever,
being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.
For the purpose of
this section 'cruelty' means (a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related
to her to meet such demand."
Consequences of cruelty which are likely to drive a woman to commit suicide or
to cause grave injury or danger to life, limb or health, whether mental or
physical of the woman is required to be established in order to bring home the
application of Section 498A IPC. Cruelty has been defined in the Explanation for
the purpose of Section 498A. Substantive Section 498A IPC and presumptive
Section 113B of the Evidence Act have been inserted in the respective statutes
by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections
304B and 498A, IPC cannot be held to be mutually inclusive. These provisions
deal with two distinct offences. It is true that cruelty is a common essential
to both the Sections and that has to be proved. The Explanation to Section 498A
gives the meaning of 'cruelty'. In Section 304B there is no such explanation
about the meaning of 'cruelty'.
having regard to common background to these offences it has to be taken that
the meaning of 'cruelty' or 'harassment' is the same as prescribed in the
Explanation to Section 498A under which 'cruelty' by itself amounts to an
offence. Under Section 304B it is 'dowry death' that is punishable and such
death should have occurred within seven years of marriage.
such period is mentioned in Section 498A. A person charged and acquitted under
Section 304B can be convicted under Section 498A without that charge being
there, if such a case is made out. If the case is established, there can be a
conviction under both the sections. (See Akula Ravinder and others v. The State
of Andhra Pradesh (AIR 1991 SC 1142).
498A IPC and Section 113B of the Evidence Act include in their amplitude past
events of cruelty. Period of operation of Section 113B of the Evidence Act is
seven years, presumption arises when a woman committed suicide within a period
of seven years from the date of marriage.
Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') defines
"dowry" as under:- Section 2. Definition of 'dowry' In this Act,
'dowry' means any property or valuable security given or agreed to be given
either directly or indirectly
one party to a marriage to the other party to the marriage; or
the parents of either party to a marriage or by any other person, to either
party to the marriage or to any other person, at or before or any time after
the marriage in connection with the marriage of the said parties, but does not
include dower or mehr in the case of persons to whom the Muslim personal law (Shariat)
I- For the removal
of doubts, it is hereby declared that any presents made at the time of a
marriage to either party to the marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed to be dowry within the meaning
of this section, unless they are made as consideration for the marriage of the
II- The expression
'valuable security' has the same meaning in Section 30 of the Indian Penal Code
(45 of 1860)."
The prosecution version primarily rests on three documents i.e. exhibits 2, 3
and 4 dated 3.1.1990, 20.6.1991 and 25.10.1990 respectively. A careful reading
of these documents which were letters by the deceased show there was in fact no
allegations of any demand of dowry made by the accused. Exhibit 3 i.e. the
letter dated 20.6.1991 is very significant. Grievance in the said letter was
not to any demand of dowry. In fact the deceased had clearly written that she
was forced to marry with the accused against her wish and that created a lot of
problems for her. The underlying essence of the letter is that the deceased was
not willing to get married and wanted to continue her studies and she was
married against her wish. There is one significant statement in the letter,
which is to the effect that the deceased did not want to go to her parental home
for Gangamma festival as her husband was taking due care of her. In exhibit 4
i.e. letter dated letter dated 25.10.1990 she has clearly stated that she was
all right and was happy in her in laws place and her in laws were taking good
care of her and she on the other hand stated that somehow or other she does not
want to live in the marital home. In Exhibit 2 i.e. letter dated 3.1.1990 also
she had stated that she was happy. In fact she wrote to her father that he
should take good care of her mother.
counsel for the State referred to a particular sentence which speaks as to the
effect that Rajamma was scolding her. It is to be noted that Rajamma was
appellant's grand mother, she is not an accused. It is also not indicated in
the letter that she was scolding her for any dowry. It is to be noted that the
reference to the grand mother being unhappy is relatable to the deceased's long
absence from the matrimonial home. In fact there is no allegation of any
harassment due to dowry. What the trial court and the High Court appears to
have done is to pick up one line from one place and another from another place
and conclude that there was demand of dowry. Reading of the letters in the
entirety show that there was, in fact, no mention of any demand for dowry.
Therefore the conviction in terms of Section 498A and Section 304B cannot be
maintained. The judgment of the High Court is accordingly set aside and the
appellant is acquitted of the charges. Bail bond executed for the release of
appellant on bail pursuant to the order dated 8.1.2002 shall stand discharged.
The appeal is allowed.