IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Randhir Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1090/2005) 2. Gobind Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1037/2005) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 11-11-2005 in Sessions Case No.72/2004 passed by Shri Baldev Ram Chaudhary, RHJS, Special Judge Woman Atrocities and Dowry Cases, Jaipur City and District. Date of Judgment: July 31, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh Sinsinwar] for the appellants. Mr. Kamlendra Sihag ] Mr. Jinendra Jain, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in these appeals is to the judgment dated November 11, 2005 of the learned Special Judge Woman Atrocities and Dowry Cases Jaipur City and District, whereby the appellants, two in number were convicted and sentenced as under:- Gobind Singh U/s.498-A IPC: To suffer rigorous imprisonment for three years and fine of Rs.50,000/- in default to further suffer rigorous imprisonment for three months. Randhir Singh U/s.304-B IPC: To suffer imprisonment for life and fine of Rs.50,000/-, in default to further suffer rigorous imprisonment for one year. U/s.498-A IPC: To suffer rigorous imprisonment for three years and fine of Rs.100/- in default to further suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on May 30, 2004 informant Arjun Singh (Pw.10) submitted a written report (Ex.P-9) at police Station Malviya Nagar Jaipur to the effect that his daughter Savita, who married to Randhir Singh on May 11, 2003, was subjected to harassment in connection with demand of dowry by her husband and in-laws. On May 28, 2004 he was informed that Savita received burn injuries. The informant reached Jaipur on May 30, 2004 and found Savita dead. On that report a case was registered under sections 304B and 498-A IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge Woman Atrocities and Dowry Cases Jaipur District Jaipur. Charges under sections 304-B and 498-A IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Three witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. In order to establish that death of Savita occurred under abnormal circumstances the prosecution examined Dr. Sumant Dutta (Pw.12) who conducted autopsy on the dead body. As per post mortem report (Ex.P-1) the cause of death was shock as a result of ante mortem dry flame burns. According to Post Mortem Report (Ex.P-12) there were II to III degree of burn with blackening of skin signing of hairs and whole body burnt. 4. In regard to demand of dowry soon before the death of Savita, the prosecution adduced the evidence of Arjun Singh (Pw.10) and Vidhya Devi (Pw.9). Arjun Singh in his deposition stated that his daughter was married to appellant Randhir Singh on May 11, 2003. Immediately after the marriage the in-laws of his daughter started harassing her in connection with demand of dowry. Although the informant gave Rs.25,000/- to them but they were not satisfied and continued to demand motor cycle. Because of harassment Savita left the house of in- laws and started living with the informant but she was taken by in-laws assuring the informant that she would not be harassed. On May 28, 2004 she received burn injuries and died on May 30, 2004. Testimony of Arjun Singh gets corroboration from the statements of Vidhya Devi. In the cross examination of these witnesses it was however elicited that appellant Gobind Singh, at the time of incident was in the village and not present in the house of Randhir Singh. 5. It is contended by learned counsel for the appellants that at the time of incident the appellant had gone to sell vegetables on Thela (wheelbarrow) and his house-owner Narayan informed him that Savita got burn injuries because of bursting of stove. He immediately reached at home and removed Savita to hospital. At that time appellant Gobind Singh was in the village as such the deceased died because of accident and there was no harassment. According to learned counsel, demand of sum of Rs.25,000/- for purchase of motor cycle did not come under the definition of `Dowry'. We have pondered over the submissions. 6. The expression `dowry' is defined by Section 2 of the Dowry Prohibition Act,1961 (for short `the Act'), as meaning anything which is given either directly or indirectly, by one party to a marriage to the other party to the marriage or by 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 after the marriage as consideration for the marriage of the said parties. The act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words “as consideration for the marriage” have been omitted and substituted by the words “in connection with the marriage”. Now dowry means any property given or agreed to be given by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection with the marriage. 7. Considering the definition of dowry their Lordships of Supreme Court in Reema Aggarwal Vs. Anupam (2004)3 SCC 199, indicated thus:- (Para 14) “The definition of the term “dowry” under Section 2 of the Dowry Act shows that any property or valuable security given or “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Dowry Act. Property or valuable security so as to constitute “dowry” within the meaning of the Dowry Act must, therefore, be given or demanded “as consideration for the marriage”. 8. It is contended by learned counsel for the appellant that since it could not be established that there was agreement for dowry, the appellant could not be convicted under section 304-B IPC. We find no merit in this submission. In State of Andhra Pradesh v. Raj Gopal Asawa [JT 2004(3) SC 560] the Apex Court indicated thus:- (Para 8) “The offence alleged against the respondents is under section 304-B IPC which makes “demand of dowry” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word “agreement” referred to in section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry and section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.” (Emphasis Supplied) 9. Section 113-B of the Evidence Act provides that 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. 10. Analysing the words `soon before her death' their Lordships of the Supreme Court in Kamesh Panjiyar Vs. State of Bihar (2005)2 SCC 388, held as under:- “A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that “soon before her death”, the victim was subjected to cruelty or harassment “for or in connection with the demand of dowry”. 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 her death” 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 the circumstances of each case and no straitjacket 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 as indicated by the said expression 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. A reference to the expression “soon before” used in Section 114 illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term “soon before” under section 114 illustration (a) is left to be determined by the courts, depending upon the 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 effects of cruelty based on dowry demand and the death concerned. If the 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.” (Emphasis supplied) 11. As already noticed that the harassment or cruelty meted by the deceased was in connection with demand of money. The medical evidence adduced by the prosecution proved beyond reasonable doubt that the death of Savita was unnatural. Existence of a proximate and live link between the effects of cruelty based on demand of money is not missing. Circumstantial evidence adduced by the prosecution in the instant case establishes the guilt of appellant Randhir Singh beyond a reasonable doubt. 12. From the facts established, we find that it is a case of unnatural death. The plea set up by the appellant that the death of deceased was accidental, in the circumstances, wholly unacceptable. Though the case rests on circumstantial evidence, presumption under section 113-B Evidence Act has rightly been drawn and the appellant Randhir Singh has rightly been convicted under sections 304B and 498A IPC. Having given our careful consideration, we agree with the findings of learned trial court arrived at in regard to appellant Randhir Singh. 13. Now coming to the question of sentence it can be seen that section 304B IPC provides thus:- “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.” 14. In Hem Chand Vs. State of Haryana (1994)6 SCC 727, Three Judge Bench of Hon'ble Apex Court indicated that Section 304B IPC only raises presumption and lays down that minimum sentence should be seven years, but it may extend to imprisonment for life, therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. 15. These days bride killing cases are in increase, but in our opinion this case does not come within the ambit of rare case. Hence, we are of the view that a sentence of imprisonment of ten years would meet the ends of justice. 16. That takes us to the allegations against the appellant Gobind Singh. He is the father of Randhir Singh and was away from the house at the time of incident. The prosecution witnesses viz. Raj Kumar (Pw.2), Amar Singh (Pw.3), Munna Singh (Pw.4) and Jai Singh (Pw.5), who were regular visitors of the house, did not support the prosecution case. In the facts and circumstances of the case we find that charge under section 498A IPC could not be established against appellant Gobind Singh beyond reasonable doubt. 17. For these reasons, we dispose of instant appeals in the following terms:- (i) We partly allow the appeal of Randhir Singh and while maintaining his conviction under sections 304-B IPC, we reduce his sentence from imprisonment for life to rigorous imprisonment for ten years and fine of Rs.25,000/- in default to further suffer three years rigorous imprisonment. Out of the fine recovered, a sum of Rs.20,000/- shall be paid to the daughter of deceased. Since the daughter of deceased is minor the amount shall be deposited in fixed deposit in nationalised bank and on attaining the age of majority the bank shall pay the amount to the daughter of deceased. We however maintain the conviction and sentence imposed on appellant under section 498A IPC. The sentences under sections 304B and 498A IPC shall run concurrently. (ii) We allow the appeal of Gobind Singh and acquit him of the charge under section 498A IPC. The appellant Gobind Singh is on bail, he need not surrender and his bail bonds stand discharged. (iii) The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/