1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.307 of 1997 Date of decision 8.7.2010 State of H.P. … Appellant Versus Chinto Devi & anr …Respondents Coram: The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Anil Jaswal, Dy. AG with Mr J.S. Rana, Assistant Advocate General. For the respondents: Mr. Manoj Pathak, Advocate. R.B. Misra, J (Oral) Heard learned counsel for the parties. 2. The present Criminal Appeal has come up for consideration after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 31.1.1997 passed by the Learned Addl. Sessions Judge, Sirmaur District at Nahan, HP in Sessions Trial No. 16-N/7 of 1994, under Sections 498-A and 304-B IPC, thereby acquitting the alleged accused/respondents. 3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. Usha (deceased), daughter of Surta Ram, was married with Baldev Singh, accused in July, 1990 and she remained in the house of her parents in-laws for about six months. Thereafter, when she 1 Whether reporter of local papers are allowed to see the judgment ? 2 came to the house of her parents, she complained about the ill- treatment and harassment being given by her husband and parents in-laws. She was also alleged to have illicit relations with one accused, namely, Sukhdev as per the allegations made by her husband. However, on 10.8.1992 at about 3.30 PM accused Baldev Singh visited the house of Surta Ram, the complainant (father of the deceased) and complained about the character of Usha (deceased) and stated that in the night in the house of his father-in-law and on 11.8.1992 at about 9.00 AM, Surta Ram, complainant along with his brother in law, Arjun Lal and other brother Phool Chand, went to the place of accused and on reaching at about 2 to 2.30 PM, found that the dead body of Usha was lying in a room of the house of accused and being apprehensive of foul play and visualizing that the dead body of the Usha (deceased ) was being taken for cremation, the complainant with the help of his companions Sulekh Chand, Roshan Lal and Om Parkash took the dead body in truck No. HR-02-4401 to the Police Post, Majra and lodged the report about the death of Usha (deceased ) and prayed for making inquiry about the mysterious death of Usha ( deceased ) from her father in law Moti Ram, brother in law Darshan Lal, husband Baldev Singh and mother in law Chinto. Complainant made report on 11.8.1992 at Police Post Majra. After investigation, FIR was lodged on 25.8.1992 and on investigation, respondents/accused were charged for the offences under section 304 B read with Section 34 of IPC. 4. During investigation when the accused was arrested on 22.7.1993, the complainant handed over two letters dated 9.6.1992 and 1.7.1992 to the police, alleged to have been 3 written by her daughter Usha ( deceased ). Dr. Inderjeet Singh (PW-12) conducted the post-mortem examination on the dead body of the Usha ( deceased ) and opined that the cause of death was by poisoning by aluminium phosphide vide postmortem report Ext PL. 5. In order to prove its case, prosecution examined Hans Raj (PW1), Roshan Lal (PW-2), Om Parkash (PW-3), Constable Krishan Kumar (PW-4), ASI Chatter Singh (PW-5), SI Lekh Ram (PW-6), HC Hira Singh (PW-7), Pdam (PW-8), Darshani Devi (PW-9), Arjun Lal (PW-10), Bichha Ram (PW-11), Dr. Inderjeet Singh (PW-12), Amar Nath (PW-13), Dy. S.P. B.M. Sharma, (PW-14), Dy. S.P. Davinder Singh (PW-15) and one Sham Lal, DW-1 was examined as Defence witness 6. On analyzing of the prosecution witnesses and material on record, we notice that Surta Ram, father of the deceased was not examined by the prosecution. However, in his report dated 11.8.1992, nothing was mentioned about the demand of dowry , cruelty, beating or harassment made by the busband or the parents in-laws of the deceased. 7. PW-1 Hans Raj stated that on 17.9.1992, Surta Ram, father of the deceased, handed over letter Ex PA dated 9.6.1992 to Dy.S.P. B.M. Sharma (PW-14) during investigation and the same was taken into possession by him vide seizure memo Ext PB in his presence and in the presence of Raj Kishore. PW-1 has further stated that Usha ( deceased ) was his niece and he recognizes her writing. 8. PW-2 Roshan Lal, uncle of deceased in support of the prosecution case has stated that Usha (deceased) was 4 tortured for dowry as she disclosed to PW-2, just 5-6 months after her marriage. PW-2 had also stated that Surta Ram had told him that he had received the letter from her daughter Usha complaining against the accused. PW-2 in his cross examination has stated that the deceased was neither beaten nor was rebuked. Any demand of dowry was not made either by the accused or by her parents in laws as nothing has happened in his presence and he has heard about such complaints from others and according to PW-2 20 to 25 persons were gathered on the death of Usha (deceased), out of whom 10 to 15 persons were present from the side of the accused. 9. PW-3 Om Parkash has stated that he was not narrated, informed or in any way apprised by Usha (deceased) regarding any kind of conduct towards her or either of the accused during subsistence of her matrimonial bondage with accused Baldev. 10. PW-4 Constable Krishan Kumar had sent three parcels on 21.8.1992 to FSL, Bharari which were entrusted to him by Hira Singh, MHC (PW-7). PW-5 ASI Chatter Singh has registered FIR Ex PC on receiving the complaint from Sh. Surta Ram. PW-6, SI Lekh Lekh Ram, Incharge of Police Post, Majra has recorded the rapat rozmancha Ex PD and prepared the site plan, who stated that the dead body was sent to Civil Hospital, Poanta Sahib and in his cross examination has stated that during the inquiry under section 174 Cr.P.C. he did not come across any such suspicion indicating the involvement of the accused in any manner. 5 11. PW-7, H.C. Hira Singh was entrusted three parcels by HIra Singh, MHC (PW-7), two parcels contain viscera of deceased and the third one contains bismeared earth, which he handed over to constable Krishan Kumar. 12. PW-8 Padam, running a photographer’s shop, had taken snaps/photographs of the deceased. PW-9 Darshani Devi, mother of Usha (deceased), in support of the prosecution case, has stated that after marriage, Usha came her house after six months and made a complaint that accused Baldev demanded dowry and Rs. 5000/- from them through Usha for running a shop at Sainwala and also complained against Chinto Devi for demanding more dowry and even in the advanced stage of pregnancy, Usha (deceased) was beaten by accused Baldev and she was dropped at Budhai Chowk in Jagadhari to avoid the expenses of delivery. However, after birth of the daughter, accused Baldev Singh came to her house along with his Mama (maternal uncle ) and wanted to take back Usha to his house, but her husband called a local panchayat and accused Baldev agreed to keep Usha (deceased) properly. On such undertaking, Usha (deceased ) was sent along with accused Baldev. PW-9 has also stated that the accused Baldev Singh came to her house around mid night and complained that Usha was not behaving properly. According to the testimony of PW-9, one day prior to the death of her daughter, accused Baldev came to her house and on the date of death, accused Baldev left her house in the morning, whereas her husband accompanied by her brother Arjun (PW-10) and her brother in law Phula Chand went to the house of accused later and on return, they apprized that 6 Usha had died. There upon 15-20 men and women from the locality went to Sainwala and notice some injuries on the face of Usha (deceased). In the cross examination, PW-9 has stated that the accused Baldev stayed in her house in the night of 10.8.1992 and left at 10 AM in the next morning when Usha died. From the testimony of PW-9 nothing has emanated that whether the death of Usha (deceased) was on account of demand of dowry or by beating or ill treatment given by the accused and her parents in laws which could have been made soon before the death of Usha (deceased). 13. PW-10, Arjun Lal, maternal uncle of deceased, in support of the prosecution case, has stated that her husband and mother in law used to maltreat her on account of insufficient dowry. PW-10 has further stated that the accused persons wanted to cremate the dead body of Usha (deceased), however, on putting our resistance, was brought to the police station and on this, scuffle took place and the dead body was taken to Police post, Majra. As per the statement of PW-10, Arthi was lifted by the brothers of accused Baldev and was put in the truck. 14. PW-11, Bichha Ram, uncle of Usha (deceased) after coming to know about the death of Usha, proceeded to Sainwala and observed that her dead body was kept in the truck being taken to police post. 15. PW-12, Dr. Inderjeet Singh conducted the post mortem examination on the dead body of Usha (deceased) on 12.8.1992 and found bruise on the left side supra orbital region and temporal region and on opening the abdomen, in the 7 stomach there was foul smell and clay coloured contents were found and the viscera was sent for Chemical Examination and after the report of Chemical Examiner, cause of death was poisoning by Aluminium Phosphide. PW-12 has also opined that bruise can be caused by fall on the ground. 16 PW-13 Amar Nath has stated that he was the headmaster School Shankar Vidya Mandir at Jagadhari and was acquainted with Surta Ram and his daughter Usha (deceased), who studied in that school for about 4-5 years. According to PW- 13, Usha used to work at his house and PW-13 was well conversant with her hand writing and signatures. Exts PA and PW-13/A were said to be the handwriting of Usha (deceased) . As per the statement of PW13 in his cross examination, Usha was admitted in the school of PW-13 in the year 1974 and remained there upto 1978. Usha used to wash the utensils and also do the sweeping work. PW-13 further stated that he did not remember that he told the police that the letters Exts PA and PW- 13/A were shown to him about 2 ½ months before her death. 17. We have gone through the contents of the letters. First letter Ex PA was written on 9.6.1992 and Ex PW13/A, the second letter, was written on 1.7.1992. The said letter was said to be written by Usha and this letter contains that she was not being treated properly and was beaten and even she was not kept comfortably in the house of her in laws and in the letter of 9.6.1992, it has been mentioned that accused Baldev Singh and her parents harasses Usha regarding dowry. 18. However, the prosecution has not been able to prove that these letters were conclusive were written by Usha 8 (deceased ) in her own hand and the signature experts and other technical persona has not given any affirmation that these letters were divulging her agony and had tried to rely on the letters above mentioned in view of the statement of PW-13 alone. Prosecution has also not been able to prove successfully by demonstrating that the previous hand writing or letters were written by the Usha (deceased). 19. In our considered view, reliance cannot be made only on these letters, more specifically the contents therein. Letters were written on 9.6.1992 and 1.7.1992 and only in one letter of 9.6.1992, a casual mention has been made about the harassment of deceased in reference to the dowry. Nothing has been indicated as to who demanded dowry and how she was beaten. No medical examination of any kind was made to show that the deceased was really beaten in connection to the demand of dowry. We also notice that the letters and contents therein do not link soon before her death on 11.8.1992 that whether she was ill treated, beaten, harassed or any demand specifically of dowry was made. 20. In our considered view, the prosecution has failed to rely on the testimony of PW-13 and the contents of Exts PA and PW-13/A, i.e. two letters. In view of the testimony of PW-13, these letters were shown to him by Surat Ram about 2 ½ months prior to the death of Usha (deceased). In that respect also, no specific complaint was lodged to the police. 21. PW-14 B.M. Sharma, Dy. SP, who conducted the investigation was said to have handed over the letters Exts PA and PW-13/A by Surta Ram, has also failed to arrive at a definite 9 conclusion to indicate that the said letters were written by Usha (deceased) and none-else. 22. PW-15, Davinder Singh Dy. SP has carried the investigation sbsequenlty. DW-1 Syam Lal has deposed that Darshan Lal son of Chanto Devi came to him about 7AM and told that the wife of accused Baldev had expired and DW-1 was asked to inform the parents of the deceased. 23. Out of the large number of persons gathered on the spot, no independent person of the locality was associated or examined by the prosecution in support of its case. Inquiry was going on from 11.8.1992 to 25.2.1992 and deliberations, FIR was lodged on 25.8.1992 , i.e by 13 days delay, which has not been explained properly. The two letters Ex PA & PW-13/A taken by PW-14 B.M. Sharma subsequently were not properly dealt with and could not indicate that these were written by Usha (decease) alone to prove about the ill treatment, harassment and demand of dowry. It is nobody’s case that the deceased was supposed to consume poison and the cruelty, harassment, ill treatment, beaten or demand of dowry was not made soon before the death of Usha (deceased). 24. In order to analyse the prosecution case, relevant provisions of Sections 304-B and 498-A are reproduced herein below:- “304B. Dowry death: Where the death of a women is caused by any burns or body 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 10 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 the same meaning as in Section2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shal be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” “498-A. Husband or relative of husband of a woman subject her to cruelty- Whoever, being the husband or the relative of the husband of a women, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine. Explanation-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause greave injury or danger to life, limb or health(whether mental or physical) of the women; or (b) harassment of the women 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.” 25. In order to make the applicability of section 304-B of IPC, cruelty or harassment or injury inflicted by the husband or 11 any of the relative should be in connection with demand for dowry, immediately preceding the death by bodily injury or by burning and the victim should have died in abnormal circumstances within 7 years of marriage, then only the husband or the relative, as the case may be, will be deemed to have caused her death and will be liable to punishment in view of the decision of Vadde Rama Rao V State of Andhra Pradesh, 1990 Cr. LJ 1666. 26. To attract the provision of Section 304-B, one of the main ingredient of offence which is required to be established is that ‘soon before her death’ the victim was subjected to cruelty and harassment “in connection with demand of dowry” in view of the decision of Supreme Court in K. Prema S. Rao & anr V Yadla Srinivasa Rao & ors, AIR 2003 SC 11, 27. In order to connect the offence under section 304-B, following aspects are necessary;- (1) The presumption shall be raised only on proof of the following essentials:- (i) The question before the court must be whether the accused has committed the dowry death of a woman. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for, or in connection with, any demand for dowry. (iv) Such cruelty or harassment was soon before her death. Kaliyaperumal & anr V State of Tami Nadu, AIR 2003 3828. (2) In dowry death cases and in most of such offences direct evidence is hardly available 12 and such cases are usually proved by circumstantial evidence. This section as well as section 113-B of the Evidence Act enact a rule of presumption, i.e. if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage this section will not apply; N.V. Satyanandam & ors V Public Prosecutor, High Court of AP, AIR 2004 SC 1708. 28. Expression ‘soon before her death’ used in the substantive section 304B IPC and section 113 B of the Indian Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. 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; 13 Kaliyaperumal V State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda & anr V State of M.P (2004) 3 SCC 98. 29. In Baljit Singh State of Haryana AIR 2004 SC 1714, Supreme Court has held that (i) A perusal of section 304 B clearly shows that if a married woman dies 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 in connection with demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are as follows: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within seven years of her marriage; and (c ) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before here death. 30. In Kunhiabdulla and anr Vs. State of Kerala (2004) 4 SCC 13, the Supreme Court has held that in order to attract the application of Section 304-B, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. 14 (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 31. In Kunhiabdulla (supra), Supreme Court has also observed that presumption under Section 113-B of the Evidence Act 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 essentials required to be proved for raising the said presumption are that : (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry and (4) Such cruelty or harassment was soon before her death. Thus, one of the essential ingredients, amongst others, in both the provisions i.e. Sections 304-B and 113-B is that the woman concerned must have been “soon before here death” subjected to cruelty or harassment “for, or in connection with, the demand for dowry.” There must be materials to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of ‘death occurring otherwise than in normal circumstances.” The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the presumption operates. Evidence in that regard has to be held by the prosecution. 15 ‘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. The expression `soon before her death' used in the substantive Section 304B IPC and Section 113-B 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. 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 cruelty or harassment concerned 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