Case: MAHESH KUMAR Vs. STATE OF HARYANA

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 the 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 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 expression soon before her death used in the substantive Section 304-B 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. A reference to the expression soon before 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 their 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 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 death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 12. In Sakatar Singh & Ors. v. State of Haryana (2004) 11 SCC 291 , the Court was examining as to whether, letter written by the deceased discloses an offence under Section 304 B of the IPC. It was held that: 11. In the above background, we will now consider the evidence led by the prosecution to establish the charge levelled against the appellants. In this process, we will first examine the letter written by the deceased to her mother. Though this letter does not mention the date, there is no dispute that the same was posted on 20-5- 1986 which is evident from the postal seal found on the envelope which would be a date prior to the incident leading to the death of Devinder Kaur and the children. The contents of the letter indicate what transpired during her mothers visit to her in-laws house and does not anywhere even remotely indicate any demand made by her in-laws. It only reflects the attitude of the deceased towards her in-laws and that she entertained a feeling that her mother was not properly treated by her mother-in-law during her last visit….. 13. In Major Singh and Anr. v. State of Punjab (2015) 5 SCC 201 , the Court disbelieved the prosecutions story for the reason that no independent witnesses were examined, even though, the witnesses deposed that the Members of Panchayats were informed about the harassment. 14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to prove that the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution. 15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution. 16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act. 17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. In the present case, the prosecution relies upon the statement of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to provethat the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution15. The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceaseds father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in-law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in-laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape of letters does not support the story of the prosecution16. In view of the judgments referred to above, the prosecution has failed to prove either the demand of dowry or that any such demand was raised soon before her death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution. The prosecution has even failed to prove the initial presumption under Section 113-B of the Evidence Act17. We find that the prosecution has failed to prove the allegations levelled against the appellant beyond reasonable doubt.