Supreme Court of India

M. Srinivasulu vs State Of A.P on 10 September, 2007

Equivalent citations: AIR 2007 SUPREME COURT 3146, 2007 (12) SCC 443, 2007 AIR SCW 5697, (2007) 4 ALLCRILR 686, (2007) 3 CHANDCRIC 251, (2007) 4 JCC 2698 (SC), (2007) 58 ALLINDCAS 65 (SC), 2007 (4) JCC 2698, 2007 (11) SCALE 12, 2008 (3) SCC (CRI) 169, (2008) 1 RAJ LW 770, 2007 (58) ALLINDCAS 65, (2008) 1 MAD LJ(CRI) 341, (2008) 1 PUN LR 321, (2007) 2 HINDULR 505, (2007) 11 SCALE 12, (2007) 2 DMC 693, (2007) 38 OCR 634, (2007) 4 RECCRIR 146, (2007) 4 EASTCRIC 121, (2007) 4 CURCRIR 119, (2007) 2 ALD(CRL) 883

Author:
Arijit Pasayat

Bench:
Arijit Pasayat
,
D.K. Jain

CASE NO.:
Appeal (crl.) 11 of 2002

PETITIONER:
M. Srinivasulu

RESPONDENT:
State of A.P.

DATE OF JUDGMENT: 10/09/2007

BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 11 OF 2002

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned
Single Judge of the Andhra Pradesh High Court upholding the
conviction of the appellant for offences punishable under

Sections 304 B
and
498 A
of the Indian Penal Code, 1860 (in
short the '
IPC
'). Sentence of seven years was imposed on each
count. By the impugned judgment conviction recorded in
respect of co-accused Laxmi was set aside and she was
directed to be acquitted.

2. Background facts as projected by prosecution in a
nutshell are as follows:

Padma @ Pitchamma (hereinafter referred to as the
'deceased') was married to accused No.1-Srinivasulu on
21.5.1989. At the time of marriage, PW.1 father of the
deceased gave rupees 10,000/- in cash, five tolas of gold, other
household articles worth Rs.3000/- and Rs.1200/- towards
clothes to accused No.1, who was employed as sub-staff of
Karnataka Bank, Secunderabad. Accused No.2 is the mother
of accused No.1 and she used to visit accused No.1 in the city
and did not allow the deceased to fulfil conjugal obligations. At
the instigation of accused No.2, accused No.1 had demanded
Rs.5,000/- more from the parents of the deceased to purchase
a Scooter as additional dowry. PW.1, father of the deceased
paid the said amount to accused No.1. In spite of the same,
both the accused made repeated demands for additional dowry
upon the deceased. On one occasion, a sum of Rs.1,000/- and
on another occasion a sum of Rs.2,000/- was paid by PW.1 to
the accused. But the accused persons did not stop ill-

treatment and harassment towards the deceased. After some
time, when the deceased and her parents came to know that
accused No.2 was thinking of a second marriage of accused
No.1, immediately they went to the house of the accused but
accused No.1 refused to take the deceased into the house.
Accused No.2 ill-treated the deceased and both the accused
asked the deceased to go back to her parents' house. Accused
No.1 threatened to immolate the deceased and accused No.2
threatened to poison the deceased and insisted that she
continues to stay in the house of her parents. Therefore, the
deceased was taking shelter in the house of her parents and
about 2 months prior to the incident, on the assurance given
by both the accused before the elders, the deceased joined
accused Nos.1 and 2 to fulfil conjugal obligations. In spite of
the same, the accused continued ill-treatment and
harassment for more dowry. Because of the persistent ill-
treatment and cruelty meted out by the accused towards the
deceased, on 17.9.1992 at about 9.30 a.m. the deceased set
herself ablaze and died with 100% burn injuries in Gandhi
Hospital while undergoing treatment.

First information report was filed, investigation was
undertaken and on completion thereof charge sheet was filed.
Accused persons pleaded innocence.

3. To establish its accusations prosecution examined 11
witnesses and 16 documents were exhibited. PWs. 1 and 2
were the father and mother of the deceased respectively while
PW3 was a relative. PW4 was a brother of the deceased while
PW5 was the sister of the deceased. PW 6 was a caste elder.
PW 10 is the Doctor who conducted the autopsy while PW 11
was the investigating officer. On consideration of the evidence
on record, learned II Additional Metropolitan Sessions Judge,
Hyderabad convicted the appellant for offence punishable
under
Section 304B
and sentenced him to undergo
imprisonment for ten years and to pay a fine of Rs.10,000/-
with default stipulation. The acquitted co-accused A2 i.e. the
mother of the appellant was sentenced to undergo
imprisonment for seven years. Though the accused person was
found guilty for offence punishable under
Section 498A
no
separate sentence was imposed. Questioning correctness of
the trial court's judgment, an appeal was preferred before the
High Court by both the accused. It was essentially the stand
of the appellant before the High Court that there was no
material to show any demand of dowry and therefore neither

Section 498A
nor
Section 304B
had any application. It was
pointed out that the deceased stayed for only 12 days at the
matrimonial home. Reference was made to several letters
which clearly establish that the deceased was unhappy not
because of any demand of dowry but because the appellant
used to stay most of the times with the parents and the
mother in law was taking objection to her long absence from
the marital home. The High Court did not find any substance
in the stand of the appellant but found that there was no
material to show that the co-accused i.e. the mother in law
was guilty of the charged offences. Accordingly her conviction
was set aside and she was acquitted. However, in case of the
appellant the conviction was maintained and the sentence was
reduced as afore-stated.

4. In support of the appeal, it was submitted that there is
no evidence of any dowry demand. On the contrary, the letters
on which prosecution placed reliance indicated that the
dispute was not relating to demand of dowry but was on
account of normal marital discord.

5. Learned counsel for the respondent on the other hand
supported the impugned judgment.

6.
Section 304B
IPC deals with dowry death which reads as
follows:

"304B. Dowry Death- (1) Where the death of a
woman is caused by any burns or bodily
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
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 same meaning as in

Section 2
of the Dowry Prohibition Act, 1961
(28 of 1961).

(2) 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."

7. The provision has application when death of a woman is
caused by any burns or bodily 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
relatives of her husband for, or in connection with any
demand for dowry. In order to attract application of
Section
304B
IPC, the essential ingredients are as follows:-

(i) The death of a woman should be caused by burns
or bodily injury or otherwise than under a normal
circumstance.

(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.

(v) Such cruelty or harassment is shown to have been
meted out to the woman soon before her death.

8.
Section 113B
of the Evidence Act is also relevant for the
case at hand. Both
Section 304B
IPC and
Section 113B
of the
Evidence Act were inserted as noted earlier by the
Dowry
Prohibition (Amendment) Act
43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113B reads as
follows:-

"113B: Presumption as 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 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.

Explanation  For the purposes of this section
'dowry death' shall have the same meaning as
in
Section 304-B
of the Indian Penal Code (45
of 1860)."

9. The necessity for insertion of the two provisions has been
amply analysed by the Law Commission of India in its 21st
Report dated 10th August, 1988 on 'Dowry Deaths and Law
Reform'. Keeping in view the impediment in the pre-existing
law in securing evidence to prove dowry related deaths,
legislature thought it wise to insert a provision relating to
presumption of dowry death on proof of certain essentials. It
is in this background presumptive Section 113B in the

Evidence Act
has been inserted. As per the definition of
'dowry death' in
Section 304B
IPC and the wording in the
presumptive
Section 113B
of the Evidence Act, one of the
essential ingredients, amongst others, in both the provisions
is that the concerned woman must have been "soon before her
death" subjected to cruelty or harassment "for or in
connection with the demand of dowry". Presumption under
Section 113B 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 presumption shall be raised only on proof of
the following essentials:

(1) The question before the Court must be
whether the accused has committed the
dowry death of a woman. (This means that
the presumption can be raised only if the
accused is being tried for the offence under

Section 304B
IPC).

(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.
(4) Such cruelty or harassment was soon
before her death.

10. A conjoint reading of
Section 113B
of the Evidence Act
and
Section 304B
IPC shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. Prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
within the purview of the 'death occurring otherwise than in
normal circumstances'. The expression 'soon before' is very
relevant where
Section 113B
of the Evidence Act and
Section
304B
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 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 113B
of the Evidence
Act. The expression 'soon before her death' used in the
substantive
Section 304B
IPC and
Section 113B
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 expression 'soon after'
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 his 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 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.

11. Section 498A reads as follows:

"498A: Husband or relative of husband of a
woman subjecting her to cruelty- Whoever,
being the husband or the relative of the
husband of a woman, subjects such woman
to cruelty shall be punished with
imprisonment for a term which may extend to
three years and shall also be liable to fine.

Explanation  For the purpose of this section
'cruelty' means 

(a) any wilful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether mental
or physical) of the woman; or

(b) harassment of the woman 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."

12. Consequences of cruelty which are likely to drive a
woman to commit suicide or to cause grave injury or danger to
life, limb or health, whether mental or physical of the woman
is required to be established in order to bring home the
application of
Section 498A
IPC. Cruelty has been defined in
the Explanation for the purpose of Section 498A. Substantive

Section 498A
IPC and presumptive
Section 113B
of the
Evidence Act have been inserted in the respective statutes by
Criminal Law (Second Amendment) Act, 1983. It is to be noted
that
Sections 304B
and
498A
, IPC cannot be held to be
mutually inclusive. These provisions deal with two distinct
offences. It is true that cruelty is a common essential to both
the Sections and that has to be proved. The Explanation to
Section 498A gives the meaning of 'cruelty'. In Section 304B
there is no such explanation about the meaning of 'cruelty'.
But having regard to common background to these offences it
has to be taken that the meaning of 'cruelty' or 'harassment' is
the same as prescribed in the Explanation to Section 498A
under which 'cruelty' by itself amounts to an offence. Under
Section 304B it is 'dowry death' that is punishable and such
death should have occurred within seven years of marriage.

No such period is mentioned in Section 498A. A person
charged and acquitted under Section 304B can be convicted
under Section 498A without that charge being there, if such a
case is made out. If the case is established, there can be a
conviction under both the sections. (See
Akula Ravinder and
others v. The State of Andhra Pradesh
(AIR 1991 SC 1142).

Section 498A
IPC and
Section 113B
of the Evidence Act
include in their amplitude past events of cruelty. Period of
operation of
Section 113B
of the Evidence Act is seven years,
presumption arises when a woman committed suicide within a
period of seven years from the date of marriage.

13.
Section 2
of the Dowry Prohibition Act, 1961 (in short
'
Dowry Act
') defines "dowry" as under:-

Section 2
. Definition of 'dowry'  In this Act,
'dowry' means any property or valuable
security given or agreed to be given either
directly or indirectly 

(a) by one party to a marriage to the
other party to the marriage; or

(b) 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 any time after the marriage in
connection with the marriage of the said
parties, but does not include dower or mehr
in the case of persons to whom the Muslim
personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is
hereby declared that any presents made at
the time of a marriage to either party to the
marriage in the form of cash, ornaments,
clothes or other articles, shall not be deemed
to be dowry within the meaning of this
section, unless they are made as
consideration for the marriage of the said
parties.

Explanation II- The expression 'valuable
security' has the same meaning in
Section 30

of the Indian Penal Code (45 of 1860)."

14. The prosecution version primarily rests on three
documents i.e. exhibits 2, 3 and 4 dated 3.1.1990, 20.6.1991
and 25.10.1990 respectively. A careful reading of these
documents which were letters by the deceased show there was
in fact no allegations of any demand of dowry made by the
accused. Exhibit 3 i.e. the letter dated 20.6.1991 is very
significant. Grievance in the said letter was not to any demand
of dowry. In fact the deceased had clearly written that she was
forced to marry with the accused against her wish and that
created a lot of problems for her. The underlying essence of
the letter is that the deceased was not willing to get married
and wanted to continue her studies and she was married
against her wish. There is one significant statement in the
letter, which is to the effect that the deceased did not want to
go to her parental home for Gangamma festival as her
husband was taking due care of her. In exhibit 4 i.e. letter
dated letter dated 25.10.1990 she has clearly stated that she
was all right and was happy in her in laws place and her in
laws were taking good care of her and she on the other hand
stated that somehow or other she does not want to live in the
marital home. In Exhibit 2 i.e. letter dated 3.1.1990 also she
had stated that she was happy. In fact she wrote to her father
that he should take good care of her mother.

15. Learned counsel for the State referred to a particular
sentence which speaks as to the effect that Rajamma was
scolding her. It is to be noted that Rajamma was appellant's
grand mother, she is not an accused. It is also not indicated
in the letter that she was scolding her for any dowry. It is to
be noted that the reference to the grand mother being
unhappy is relatable to the deceased's long absence from the
matrimonial home. In fact there is no allegation of any
harassment due to dowry. What the trial court and the High
Court appears to have done is to pick up one line from one
place and another from another place and conclude that there
was demand of dowry. Reading of the letters in the entirety
show that there was, in fact, no mention of any demand for
dowry. Therefore the conviction in terms of Section 498A and
Section 304B cannot be maintained. The judgment of the High
Court is accordingly set aside and the appellant is acquitted of
the charges. Bail bond executed for the release of appellant on
bail pursuant to the order dated 8.1.2002 shall stand
discharged.

16. The appeal is allowed.