Bansi Lal Vs State of
Dr. B.S. CHAUHAN, J.
1. This criminal appeal
has been preferred against the judgment and order of the Punjab and Haryana
High Court at Chandigarh dated5th May, 2004 in Criminal Appeal No. 708-SB of
1998, by which the conviction of the appellant by Additional Sessions Judge,
Gurgaon, vide judgment and order dated 22nd August, 1998 and 25th August,1998
for offences under Sections 498-A, 304-B and 306 of Indian Penal Code, 1860
(hereinafter referred as `IPC') and awarding the sentence to undergo rigorous
imprisonment for two years and to pay a fine of Rs. 500/- and in default of
payment of fine to further undergo rigorous imprisonment for two months, has
been upheld. However, for the offence under Section 304-B IPC sentence to
undergo for ten years and pay a fine of Rs.2,000/- in default of payment of
fine, to further undergo rigorous imprisonment for six months, has been reduced
to seven years with fine.
2. Facts and
circumstances giving rise to this case are that the appellant was married to
Sarla (deceased) on 4th April, 1988. An FIR was lodged by Shyam Lal (PW.4)
father of Sarla (deceased) on 25thJune, 1991 making allegations that the
appellant, his mother, brother and sister-in-law had consistently harassed his
daughter Sarla (deceased) by making dowry demand i.e. a scooter. She had been maltreated
by them. After one year of marriage, Sarla (deceased)came and stayed with her
family for about 14 months. It was only after convening a panchayat of close
relatives, she had returned to her matrimonial home. Again they maltreated and
insisted for the demand of a scooter, thus, she had been subjected to cruelty, harassment
by demand of dowry to the extent that she committed suicide on 25th June, 1991,
at her matrimonial home.
3. After investigation
of the case, the prosecution filed the chargesheet against the appellant and
his mother Smt. Shanti Devi and charges were framed against them under Sections
498-A, 304-B and306 IPC. The said two accused pleaded not guilty, thus, they
were put on trial. It was on 17th May, 1995, that in view of the evidence of
the prosecution witnesses, the learned Sessions Judge in exercise of his power
under Section 319 of the Code of Criminal Procedure, 1973(hereinafter called
Cr.P.C.) summoned the other two accused Ashok Kumar, brother and Smt.
Shakuntala, sister-in-law of the appellant and charges were reframed against
all the four accused under Sections498-A, 304-B and 306 IPC vide order dated
6th July, 1995.
4. In order to
substantiate its case, the prosecution examined several witnesses including
complainant Shyam Lal (PW.4), Gulshan(PW.5), brother of Sarla (deceased), Dr.
B.B. Agarwal (PW.1), Shri Arjun Singh Yadav, ASI, (PW.6), Constable Jai Pal
(PW.2), ShriMool Chand Punia, Draftsman (PW.3), and other formal witnesses.
5. While making their
statement under Section 313 Cr.P.C., theaccused persons denied all the
allegations against them and set up the defence as under: "Sarla was in
love with some other person. She was forced to marry with accused Bansi Lal against
her will, due to which she felt suffocated and committed suicide, leaving a
suicide note to that effect. There was no demand of Scooter." Further,
accused Ashok Kumar (A.3) and Shakuntala (A.4)pleaded that they had been living
separately from the appellant and his mother and they had no involvement so far
as the demand of dowry was concerned. In defence only three witnesses i.e. Bal
Kishan, an official of HSEB (DW.1), Vidya Nand, an Inspector of Food and Supplies
Department (DW.2) and Surender Singh, Sarpanch of thevillage Gram Panchayat
(DW.3) were examined only to prove that accused Ashok Kumar (A.3) and
Shakuntala (A.4) were living separately from the appellant and his mother Smt.
6. After considering the
entire evidence on record and the submissions made by the prosecution as well
as defence, the trial court convicted the appellant and his mother Smt. Shanti
Devi under Sections 498-A, 304-B and 306 IPC and awarded the sentences as referred
to hereinabove. The court acquitted Ashok Kumar and Shakuntala of all the
charges against them. The Trial Court did not award any separate sentence under
Section 306 IPC.
7. Being aggrieved, the
appellant and his mother Smt. Shanti Devi preferred Criminal Appeal No. 708-SB
of 1998 which has been disposed of by the impugned judgment and order dated 5th
May, 2004,acquitting Smt. Shanti Devi, not being beneficiary of the demand of dowry,
as only scooter had been demanded but dismissed the appeal so far as the
present appellant is concerned. However, considering the facts and
circumstances of the case, the sentence under Section 304-BIPC has been reduced
from 10 years to 7 years. Hence, this appeal.
8. Shri Mahabir Singh,
learned senior counsel appearing for the appellant, has submitted that no
charge could be brought home against the appellant under any of the penal
provisions as there was no demand of dowry by the appellant. The harassment was
not in close proximity of time of death. The prosecution itself had submitted
that Sarla (deceased) wanted to marry one Shiv Parkash Singh and thus, she was
not happy with the appellant. She had left a suicide note to that effect and
the said note had been exhibited before the trial court as Ex.P2. Thus, the
appeal deserves to be allowed.
9. On the contrary, Shri
Rao Ranjit, learned advocate appearing for the State, has vehemently opposed
the appeal contending that the facts and circumstances of the case do not
warrant interference with the concurrent finding of facts recorded by the
courts below. The suicide note Ex.P2 has to be ignored as it has not been
proved as per requirement of law. No witness has been examined for comparing
the hand writing of the deceased nor it has been signed by the deceased. It had
not even been shown to father of the deceased i.e. Shyam Lal(PW.4), complainant
or her brother Gulshan (PW.5). More so, it had been the defence of the appellant
while making his statement under Section 313 Cr.P.C. Thus, he should have led
evidence to substantiate the defence. Thus, the appeal lacks merit and is
liable to dismissed.
10. We have considered
the rival submissions made by the learned counsel for the parties and perused
the material on record. The admitted facts of the case remain as under
was no demand of scooter at the initial stage of marriage in 1988.
Shyam Lal (PW.4) and Gulshan (PW.5) had deposed that there had been consistent
and persistent demand of scooter by the appellant.
one year of the marriage, when Sarla (deceased) came to the house of her
parents, she stayed with them for a period of 14 months.
this period of 14 months, no attempt had been made by the appellant to call her
newly wedded wife back to the matrimonial home.
Panchayat of very close relatives was convened and they had assured the parents
and family members of Sarla (deceased) that appellant and his other family
members would behave properly with Sarla (deceased) and she would not be
maltreated or humiliated or subjected to any kind of cruelty for demand of
was on this assurance that Sarla (deceased) came back to stay with the appellant
at her matrimonial home.
committed suicide by hanging herself on 25th June, 1991.
appellant or any of his family members did not inform Shyam Lal, (PW.4),
complainant or any of his family members about the death of Sarla (deceased).
Lal (PW.4) and Gulshan (PW.5) reached her matrimonial home along with others
getting information from other persons.
Lal (PW.4) immediately lodged the FIR against the appellant and other family
members and, set the law in motion.
(deceased) was found dead at her matrimonial home when she stayed with the
appellant and other family members. They had not furnished any satisfactory explanation
as for which reason and under what circumstances she had committed suicide.
far as the theory of love affair of Sarla (deceased) isconcerned, it has been
disbelieved by the courts below. The Trial Court dealt with the issued
observing as under : "If the husband was doubting her fidelity towards him
there was no reason for him to have come with his father and other relatives to
the parents of the deceased to take her back after 14 months of her stay with
her parents. It also cannot be said that the deceased was not having any liking
for her husband and was frustrated because she allegedly could not marry the
person of her choice. Rather the circumstances are otherwise. Had she developed
hatred for her husband, there was no 8 reason for her to join him after 14
months of her staying away from the matrimonial home. There was every reason
for her to believe the husband and his relatives that demand of dowry and other
torture and maltreatment would not be there. Better sense definitely, after
such a lapse of time, was naturally to be expected to have dawned on them.
Parents of the deceased also did not create any hassles as they felt satisfied
from the assurance of the accused on this score. At any rate melodramatic story
of her love affairs with some one and her frustration in her married life with
accused Bansi Lal can hardly be taken as genuine. If it was so, she could not
have continued to wait to die for her alleged lover for three long years,
having consummated the marriage with her husband and having cohabited with him
all- through she was with him in the matrimonial home.
the High Court has dealt with the issue elaborately and recorded the following
findings: "Much has been said by the learned counsel about Ex.P-2, the
note allegedly recovered by the Investigating Officer. In my considered view,
this document has to be totally rejected from consideration in evidence for the
simple reason that no nexus of the deceased has been established with this
document. There is no evidence worth the name from the side of the prosecution
or from the defence, which may indicate that the writing Ex.P-2 was, in fact,
in the hand of Sarla deceased. Shyam Lal and Gulshan PWs when stepped into the
witness-box do not say even a word that the document Ex.P-2 is written in the
hand of Sarla deceased. Even the defence counsel did not put any specific
question/suggestion to these witnesses about authorship of this document,
knowing very well that ASI Arjun Singh Yadav, Investigating Officer had taken
it into possession from the almirah of their house. The Investigating Officer (PW6)
in his cross examination has stated that the diary, letter and ball-pen were
lying in the room and he enquired about the author of the said letter Ex.P-2
and it was revealed that the same was written by the deceased. This statement
can be termed as a hear say evidence, having no legal sanctity when the main
witnesses were not asked about the authorship thereof. A mere suggestion put to
Shyam Lal and Gulshan PWs to the effect that Sarla had left a suicide note
regarding her relations with some other person, takes us no where. The
authorship of this letter could be proved either by producing some witness who
had seen the deceased writing and signing or the said document could be sent to
some handwriting expert alongwith the admitted writing of Sarla deceased for
comparison. Both the situations are missing. Even the Investigating Officer
does not say a word as to from whom he had verified about authorship of the
said letter. In case this document is taken to be a proved one, this would amount
to bye-passing the provisions of the Evidence Act. The Investigating Officer
cannot be all and all. The irresistible conclusion, thus, is that the document
Ex.P-2, the so-called suicide note has to be taken out of the zone of consideration.
The defence of the Bansi Lal appellant thus becomes very weak and
view of the above, we do not see any cogent reason to take a view contrary to the
view taken by the courts below that Ex.P2, the suicide note was not worth
consideration. It has rightly been held bythe courts below that it was to be
ignored. Ext.P.2, the so-called suicide note disclosing that Sarla(deceased)
committed suicide as she developed love affair with ShivParkash has been
referred to by the Investigating Officer Arjun Singh, ASI (PW.6) where in his
cross-examination he has stated as under:- "The diary, letter, and ball
pen were lying in a window of the room. He had enquired about the author of the
letter Ext.P.2 and it was revealed that it is written by Sarla, deceased."
The witnesses of panchnama of recovery of this letter had not been examined
though they had been Mahabir Singh, Chowkidar of village Shiwari and Hoshiar
Singh, Ex. Sarpanch of Shiwari. ShyamLal (PW.4) and Gulshan (PW.5) both have
denied the suggestion of recovery of any such letter nor the letters had been
shown to them for identifying the handwriting of Sarla (deceased). More so,
there is nothing on record to show that she was educated. Arjun Singh, ASI(PW.6)
has not stated anywhere that he knew the handwriting of Sarla (deceased) nor he
has disclosed on whose information he had inferred that the letter had been
written by Sarla (deceased). In such a fact situation, the recovery of such
letter is to be disbelieved and the letter is required to be ignored totally.
More so, it has no probative value because it is no body's case that the
alleged suicide note is in the handwriting of Sarla (deceased).
demand of scooter had been consistent and persistent as Shyam Lal (PW.4) and
Gulshan (PW.5) had specifically deposed that the demand was only in respect of
scooter and nothing else. Had this allegation be false, the said witnesses
could also mention other articles purported to have been demanded by the
appellant or his other family members. Therefore, the veracity of the evidence
of these two witnesses on this issue cannot be doubted. Both the witnesses hadbeen
subjected to long cross examination at the behest of the appellant, however,
nothing could be elicited from them to the extent that the allegations made by
the prosecution could be false.
considering the case under Section 498-A, cruelty has to be proved during the
close proximity of time of death and it should be continuous and such
continuous harassment, physical or mental, by the accused should make life of
the deceased miserable which may force her to commit suicide. In the instant
case, the conduct of the accused forced the deceased Sarla to leave her
matrimonial home just
one year of marriage and stay with her parents for 14 months continuously. It
was only at the assurance given by the panchayat that the accused or his family
members would not humiliate or subject the deceased Sarla with cruelty, that
she rejoined her matrimonial home. It is specific evidence of Gulshan (PW.5)
that just few days before her death, when he went to see her sister, there was
a demand of scooter by the appellant. In such a fact situation, we do not find
any force in the submission made on behalf of the appellant that there was no demand
of scooter in the close proximity of the death.
such a fact situation, the provisions of Section 113B of the Indian Evidence
Act, 1872 providing for presumption that accused is responsible for dowry
death, have to be pressed in service. The said provisions read as under:-
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 had 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." (emphasis supplied)
It may be mentioned
herein that the legislature in its wisdom has used the word "shall"
thus, making a mandatory application on the part of the court to presume that
death had been committed by the person who had subjected her to cruelty or
harassment in connection with or demand of dowry. It is unlike the provisions
of Section 113Aof the Evidence Act where a discretion has been conferred upon
the court wherein it had been provided that court may presume to abatement of
suicide by a married woman. Therefore, in view of the above, onus lies on the
accused to rebut the presumption and in case of Section 113B relatable to
Section 304 IPC, the onus to prove shifts exclusively and heavily on the
The only requirement
is that death of a woman has been caused by means other than any natural
circumstances; that death has been caused or occurred within 7 years of her
marriage; and such woman had been subjected to cruelty or harassment by her
husband or any relative of her husband in connection with any demand of dowry.
in case the essential ingredients of such death have been established by the
prosecution, it is the duty of the court to raise a presumption that the
accused has caused the dowry death. It may also be pertinent to mention herein
that the expression shown before her death has not been defined in either of
the statutes. Therefore, in each case, the court has to analyse the facts and
circumstances leading to the death of the victim and decide if there is any
proximate connection between the demand of dowry and act of cruelty or harassment
and the death. (vide: T. Arunt perunjothi v. State through S.H.O., Pondicherry,
AIR 2006 SC 2475; Devi Lal v. Stateof Rajasthan, AIR 2008 SC 332; State of
Rajasthan v. Jaggu Ram,AIR 2008 SC 982; Anand Kumar v. State of M.P., AIR 2009
SC2155; and Undavalli Narayana Rao v. State of Andhra Pradesh, AIR 2010 SC
the instant case, evidently, the suicide note, Ext.P-2purported to have been
written by Sarla (deceased) had been taken by appellant as his defence while
making his statement under section 313Cr.P.C. Therefore, the onus was on him to
establish his defence by leading sufficient evidence to rebut the presumption
that he has caused the dowry death. The appellant miserably failed to discharge
that onus. 1
view of the above, the submissions advanced on behalf of the appellant are
rejected. The appeal does not have any special features warranting interference
by this court. The appeal lacks merit and stands dismissed
..................................J. (P. SATHASIVAM)
(Dr. B.S. CHAUHAN)