THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL PETITION NO.3208 OF 2008 ORDER: This is a petition filed under Section 482 of Criminal Procedure Code (for short Cr.P.C.) for quashing the proceedings in P.R.C.No.58 of 2007 pending on the file of III Metropolitan Magistrate Court, Visakhapatnam in Crime No. 366 of 2007 of Kancharapalem Police Station, Visakhapatnam against the petitioners. 2. The petitioners herein are accused Nos.1 to 4 therein and respondent No.2 herein, who is the de facto complainant, has lodged a complaint against the accused and the same was registered in Crime No.366 of 2007 of Kancharapalem Police Station and the police after due investigation filed charge sheet against the petitioners herein for the offence under Section 304-B IPC. 3. The contention of the petitioners’ counsel is that the provisions of Section 304-B IPC are not attracted in the present case as the petitioner No.1 has obtained divorce on 21.03.2007 and the deceased was residing separately since more than a year and therefore the question of harassing the deceased in connection with the dowry prior to her death on 01.06.2007 does not arise, as such the provisions of Section 304-B IPC are not attracted. 4. The learned counsel for 2nd respondent had pleaded that the harassment of the deceased is a continuous one and even though she is residing separately prior to her death for more than a year, it cannot be said that there is no harassment by the accused prior to her death, as such the provisions of Section 304-B IPC are attracted and the petitioners are not entitled for quashing of the proceedings as prayed for. 5. As per the charge sheet the marriage of the deceased Durga Kuamri was performed with A.1 on 28.07.2005 and at the time of marriage, the parents of the deceased promised to give Rs.5,00,000/- as dowry to A.1, but paid Rs.2,00,000/- assuring that they will pay the balance Rs.3,00,000/- later. Apart from the said dowry amount, the parents of the deceased gave Five tulas of gold to A.1 and Rs.50,000/- to A.4 and 35 tulas of gold to the deceased. Since the parents of the deceased could not give the balance dowry amount of Rs.3,00,0000/-, A.1 to A.3 started harassing and ill- treating the deceased both physically and mentally demanding her to bring the balance dowry amount from her parents. Since they could not pay the balance amount of dowry as agreed, accused necked the deceased out of their house on 13.05.2006 and she came to her parents house at Meridian Towers Marripelm and residing with them. As the deceased was getting some convulsions, the parents of the deceased brought her to the hospital, where the Doctor found that the deceased was pregnant. When the same was informed to the accused, they chastised them that the pregnancy of the deceased was unwelcome by them and the deceased gave birth to a female baby and the same was informed to A.1 to A.3, but they did not come to the house of parents of the deceased to see the newborn baby. A.1 to A.4 also decided to perform another marriage to A.1 with another women and searching for the matches. Due to the unbearable and frequent harassment and ill-treatment by A.1 to A.4, the deceased, who was vexed with her conjugal life, committed suicide by hanging in the house of her parents on 01.06.2007 and lost her breath. Therefore, as per the above said charge sheet, the deceased committed suicide as she could not tolerate with the frequent harassment and ill-treatment by A.1 to A.4 and she also left a suicide note at the scene of offence narrating the harassment and ill-treatment of the accused. 6. The petitioners’ counsel pleaded that the harassment must be shown before her death to attract the provisions of Section 304-B IPC. As there is a gap of one year prior to her death on her living separately from the accused, it cannot be termed as harassment caused to the deceased soon before her death and in support of his contention he relied on a decision rendered in KALIYAPERUMAL AND ANOTHER v. STATE OF A.P.[1]. Wherein the Apex Court held that the expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B, 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 113-B of the Evidence Act. 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 consequence. 7. Other decision relied upon by the petitioners’ counsel is in BISWAJIT HALDER ALIAS BABU HALDER AND OTHERS v. STATE OF WEST BENGAL[2]. Wherein the Apex Court held that the basic ingredients to attract the provisions of Section 304-B are as follows: (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. In the said decision, there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no finding in that regard. This deficiency in evidence proves fatal for the prosecution case and therefore held that conviction of the accused cannot be upheld. 8. On the other hand, 2nd respondent’s counsel has contended that the words ‘soon before her death’ can refer to a period either immediately before the death of the deceased or within a few days or few weeks before death. In support of his contention, he relied on a decision rendered in RAJA LAL SINGH v. STATE OF JHARKHAND[3]. Wherein the Supreme Court held that the expression “soon before her death” is an elastic term and can refer to a period either immediately before death of deceased or within a few days or few weeks before death. What is relevant is there should be a perceptible nexus between death of deceased and dowry related harassment or cruelty inflicted on her. 9. The other decision relied upon by the 2nd respondent’s counsel in KANS RAJ v. STATE OF PUNJAB AND OTHERS[4]. Wherein the Apex Court held that the words “soon before her death” means proximate or live link must be shown to exist between the course of conduct relating to cruelty or harassment in connection with dowry demand and consequential death. Mere lapse of time by itself would not provide the accused a defence that cruelty or harassment was not “soon before her death”. 10. Therefore, in view of the above said decisions cited by the petitioners’ counsel and 2nd respondent’s counsel, it is evident that the words ‘soon before her death’ must be proximate or live link between the conduct relating to cruelty or harassment in connection with the demand for dowry and consequential death and the same has to be established by the prosecution during the course of trial. Therefore, mere basing on the averments made in the charge sheet, it cannot be said that there is no cruelty or harassment relating to demand for dowry prior to her death since the deceased was living separately from A.1 from 13.05.2006 prior to her death. Therefore, in the above circumstances, it cannot be said that there is no harassment or cruelty in connection with demand for dowry soon before her death, as the same has to be established during the course of trial. Hence, the petitioners are not entitled for quashing of the proceedings as prayed for. 11. In the result, the criminal petition is dismissed. _______________________ P.DURGA PRASAD, J 25th March, 2011 KSP [1] AIR 2003 Supreme Court 3828. [2] (2008) 1 Supreme Court Cases 202. [3] AIR 2007 Supreme Court 2154 [4] (2000) 5 Supreme Court Cases 207.