Applying this principle, it is clear that the earlier
law was not sufficient to check dowry deaths hence aforesaid
stringent provisions were brought in, so that persons
committing such inhuman crimes on married women should not
escape, as evidence of a direct nature is not readily
available except of the circumstantial kind. Hence it is
that interpretation which suppresses the mischief, subserves
the objective and advances the remedy, which would be
acceptable. Objective is that men committing such crimes
should not escape punishment. Hence stringent provisions
were brought in by shifting the burden onto the accused by
bringing in the deemed clause. As aforesaid, the definition
of `dowry' was amended with effect from 19th November, 1986,
to include a period even after the marriage.
The next question is, whether there was any cruelty or
harassment by the deceased's husband or any relative and
that too it was soon before her death. The argument put in
is that neither there is any physical injury nor any
evidence of cruelty from any neighbours or other independent
persons; hence there is no cruelty or harassment. In our
considered opinion, cruelty nor harassment need not be
physical. Even mental torture in a given case would be a
case of cruelty and harassment within the meaning of Section
304-B and 498-A IPC. Explanation (a) to Section 498-A itself
refers to both mental and physical cruelty. In view of
Explanation (a) the argument is, before it constitutes to be
a cruelty there has to be wilful conduct. Again wilful
conduct means, conduct wilfully done may be inferred by
direct or indirect evidence which could be construed to be
such. We find, in the present case, on account of not
satisfying the demand of the aforesaid goods, right from the
next day, she was repeatedly taunted, maltreated and
mentally tortured by calling her ugly etc. A girl dreams of
great days ahead with hope and aspiration when entering into
a marriage, and if from the very next day the husband
starts taunting for not bringing dowry and calling her ugly,
there cannot be greater mental torture, harassment or
cruelty for any bride. There was a quarrel a day before her
death. This by itself, in our considered opinion, would
constitute to be a wilful act to be a cruelty both within
the meaning of Section 498-A and Section 304-B IPC.
PETITIONER:
PAWAN KUMAR & ORS.
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 09/02/1998
1998 AIR 958, 1998( 1 )SCR 746, 1998( 3 ) SCALE486 , 1998( 1 )JT 565
For more than a century, inspite of tall words of
respect for women, there has been an onslaught on their
liberties through `bride burning' and `dowry deaths'. This
has caused anxiety to the legislators, judiciary and law
enforcing agencies, who have attempted to resurrect them
from this social choke. There have been series of
legislations in this regard, without much effect. This led
to the passing of Dowry Prohibition Act in 1961. Inspite of
this, large number of `brides burning' and dowry deaths
continued. To meet this, stringent measures were brought in
the Indian Penal Code and the Evidence Act through
amendments. It seems, sections of society are still boldly
pursuing this chronic action to fulfil their greedy desire.
Inspite of stringent legislations, such persons are still
indulging in these unlawful activities, not because of any
shortcomings in law but under the protective principle of
criminal jurisprudence of benefit of doubt. Often, innocent
persons are also trapped or brought in with ulterior
motives. This places an arduous duty on the Court to
separate such individuals from the offenders. Hence the
Courts have to deal such cases with circumvention, sift
through the evidence with caution, scrutinise the
circumstances with utmost care. The present matter is one
such where similar questions have been raised, including
question of interpretation of the stringent law.
The three appellants were convicted for offence under
Sections 306, 498-A and 304-B IPC. Appellant No. 1 is the
deceased's husband, No. 2 the father-in-law, and No, 3 the
mother-in-law respectively. The trial court convicted and
sentenced appellant No.1 for offence under section 304-B for
10 years and a fine Rs. 500/, under section 306 for 7 years
and a fine of Rs. 200/- and under section 498-A for 2 years
and a fne of Rs. 200/. Appellant Nos. 2 and 3 were convicted
and sentenced under section 304-B for 7 years with a fine
of Rs. 500/-, under section 306 for 7 years with a fine of
Rs. 200/- and under section 498-A IPC for 2 years with a
fine of Rs. 200/-. The sentences were ordered to run
concurrently. The High Court maintained the convictions but
reduced the sentence form 10 years to 7 years so far
appellant No. 1 is concerned.
The brief facts of the case are :
Urmil (deceased) and appellant No.1 were married on
29th May, 1985. Appellant No.1 was working at Lucknow and
had later shifted to Sonepat (Haryana). According to the
prosecution case, within a few days of the marriage Urmil
returned home and complained regarding demands of dowry for
a refrigerator, scooter etc. by appellants. These demands
were reiterated on subsequent visits. On account of non-
fulfilment of these demands, the deceased was allegedly
tortured and harassed. These alleged actions ultimately
contributed towards a suicidal death. It is not in dispute
that she died of burn injuries on 18th May, 1987.
In April 1987, Tara Chand, maternal uncle of the
deceased died. Urmil (deceased) and Appellant No.1 went to
Shahdara (Delhi) to offer condolences. From there, Appellant
No.1 returned and Urmil went to her sister's place in Delhi.
On 17th May, 1987, when Appellant No. 1 went to the
deceased's sister's place to bring Urmil (the deceased) back
to Sonepat, some quarrel took place between them.
Regardless, Appellant No. 1 brought back the deceased to
Sonepat. The very next day i.e. on the 18th May, 1987,
according to the appellants, at 9.30 a.m. Joginder Pal,
(neighbour of the appellant) came to appellant No.2 and
informed him that smoke was coming out from the room on the
first floor of the house. When they reached there, they
found Urmil lying dead on the floor with burn injuries. The
room was full of smoke. Later, the parents of the deceased
arrived and a post mortem examination was conducted on the
body of the deceased. The doctor found that the cause of
death was shock and asphyxia as a result of servere burns
which were ante-mortem and were sufficient to causes death
in the ordinary course of life.
Learned counsel for the appellants vehemently argued
with vehemence that even if all the evidence on record was
taken into consideration, no offence could be made out. No
clear finding of suicide had been recorded and in any case
essential ingredients of Section 304-B of IPC were lacking.
The evidence against appellants No.2&3 was flimsy, and in
any case their conviction could not be sustained. Further,
there was no evidence that soon before her death, the
deceased was subjected to cruelty or harassment for or in
connection with any demand of dowry. There was neither any
demand of dowry nor was there any agreement at the time of
marriage, which is an essential ingredient to constitute an
offence under dowry death in terms of definition of `dowry'
as given under Section 2 of the Dowry Prohibition Act, 1961
(hereinafter referred to as `the 1961 Act'). Unless there is
an agreement for dowry, at the time of marriage or in
connection with marriage, it would not qualify to be a dowry
within such definition, hence no offence under Section 304-B
I.P.C. Merely expressing the grouse of asking for fridge or
TV would not by itself constitute to be a dowry within the
said definition in the absence of any agreement. Further,
before applying the demand clause under Section 304-B the
evidence has to be within the scope of criminal
jurisprudence, i.e. to prove guilt beyond all reasonable
doubt. It cannot be based merely on suspicion, conjectures
and surmises.
Let us see Section 304 I.P.C. The ingredients necessary
for the application of Section 304-B are :-
[a] When the death of a woman is caused by any burns
or bodily injury, or
[b] occurs otherwise than under normal circumstances.
[c] and the aforesaid two facts springs within 7 years
of girl's marriage.
[d] and soon before her death, she was subjected to
cruelty or harassment by her husband or his
relative.
[e] this is in connection with the demand of dowry.
If these conditions exist, it would constitute a dowry
death; and the husband and/or his relatives shall be deemed
to have caused her death. In the present case, it is not in
dispute that the deceased Urmil died of burn injuries, that
she died otherwise than under normal circumstances, and that
the death was within a period of 7 years of marriage. The
only consideration has to be : whether she was subjected to
any cruelty or harassment by the appellants soon before her
death, and whether the same was for or in connection with
any demand of dowry. In support of prosecution case, Smt.
Misro Devi, mother of the deceased, PW-4 Trishala Devi,
sister of the deceased, PW-5 Prem Chand Jain, father of the
deceased, PW-6 Ram Gopal, brother-in-law of the deceased,
husband of PW-5,PW-7 were examined. On perusal of the
evidence of PW-4 we find that the mother of the deceased
deposed that within four days following the marriage, her
daughter deceased Urmil came back to her and told her that
her parents-in-law and husband were subjecting her to taunts
for not bringing a scooter and refrigerator as dowry at the
time of marriage. She somehow pacified her daughter to
return. Urmil came back after two months and again told her
mother that her husband in-laws were continuously taunting
her daily, maltreating her and calling her ugly for not
bringing the aforesaid goods as dowry. Admittedly, these
taunts were uttered in view of the lesser dowry brought by
her. Even after giving birth to a son, when she came back
she again narrated the continued maltreatment poured on her
by the accused. She also deposed that Urmil wrote some
letters from Sonepat to her at Calcutta and Hansi, but after
going through them she tore them up. Her letters also
referred to the same maltreatment and torture. Similarly,
PW-6, the father of the deceased also referred to the
similar complaints made to him by Urmil. He also deposed
that she used to tell him that her husband and in-laws were
maltreating and harassing her on account of not meeting the
demand of a scooter and a fridge. The father again
expressed his inability to meet this demand. Hence her
father sent her back after pacifying her. Similar is the
deposition of PW-5, the sister of the deceased and PW-7, the
brother-in-law of the deceased.
The afore referred to evidence, according to the
learned counsel for the appellant, may merely be an
expression of the desire to acquire a fridge, scooter etc.
and that by itself cannot be construed as an offence as this
would not come within the definition of `dowry' under
Section 2 of the Dowry Prohibition Act, 1961 read with
Section 304-B and 498 I.P.C. It is necessary to refer the
afore referred provisions.
Section 2 of the Dowry Prohibition Act, 1961 defines
`dowry' as under "-
"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 dowry or
mehr in the case of persons to whom the Muslim
Personal Law (Shariat) applies.
Section 304-B(1) with Explanation of IPC is as also quoted.
"304-B Dowry death - (i) 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 or
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 purposes of
this sub-section, "dowry" shall
have the same meaning as in Section
2 of the Dowry Prohibition Act,
1961 (18 of 1961).
Section 498-A is also quoted hereunder :
"498-A 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 purposes 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 here 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.
The aforesaid 1961 Act was enacted to provide an
effective check to dowry deaths which were continuing
despite the then prevailing laws. The object of the Bill was
to prohibit the evil practice of giving and taking of dowry.
This objective was not achieved hence drastic amendments
were brought in by amending various provisions of the said
Act and the related provisions under the Indian Penal Code
and the Evidence Act. Earlier, the definition of `dowry'
which was limited to the time at or before the marriage was
extended to the period even after the marriage by means of
Act 43 of 1986 w.e.f. November 19,1986. Similarly, Section
304-B was introduced by means of the same amending Act and
Section 498-A was introduced by Criminal Law (Second
Amendment) Act, 1983 (Act 46 of 1983). Various other
amendments were brought in bringing more stringent
provisions in the aforesaid 1961 Act in order to stem the
onslaught on the life of a married woman.
It is true, as argued by learned counsel for the
appellants, that in criminal jurisprudence benefit of doubt
is extendable to the accused. But that benefit of doubt
would arise in the context of the application of penal law,
and in the facts and circumstances of a case. The concept of
benefit of doubt has an important role to play but within
the confines of the stringency of laws. Since the cause of
death to a married woman was to occur not in normal
circumstances but as a `dowry death', for which the evidence
was not to easily available, as it is mostly confined to
within four walls of a house, namely husband's house, where
all likely accused reside. Hence the aforesaid amendments
brought in the concept of deemed `dowry death' by the
husband or the relatives, as the case may be. This deeming
clause has a role to play and cannot be taken lightly and
ignored to shield an accused, otherwise the very purpose of
the amendment will be lost. Of course, the prosecution has
to prove the ultimate essential ingredients beyond all
reasonable doubt after raising the initial presumption of
`deemed dowry death'.
Explanation to section 304-B refers to dowry "as having
the same meaning as in Section 2 of the 1961 Act", the
question is - what is the periphery of the dowry as defined
therein? The argument is, there has to be an agreement at
the time of the marriage in view of the words `agreed to be
given' occurring therein, and in the absence of any such
evidence it would not constitute to be a dowry. It is
noticeable, as this definition by amendment includes not
only the period before and at the marriage but also a period
subsequent to the marriage.
When words in statute are referable to more than one
meaning, the established rule of construction is found in
Heydon's case (1584) 76 E.R. 639 also approved by this Court
in Bengal Immunity Co. Ltd. V. State of Bihar & Ors., AIR
1955 SC 661 (674). The rule is to consider four aspects
while construing an Act :
[a] when was the law prior to the law which is sought
to be interpreted;
[b] when was the mischief or defect for which new law
is made;
[c] what is the remedy the law now provides; and
[d] what is the reason of the remedy.
The Court must adopt that construction which,
"suppresses the mischief and advances the remedy."
Applying this principle, it is clear that the earlier
law was not sufficient to check dowry deaths hence aforesaid
stringent provisions were brought in, so that persons
committing such inhuman crimes on married women should not
escape, as evidence of a direct nature is not readily
available except of the circumstantial kind. Hence it is
that interpretation which suppresses the mischief, subserves
the objective and advances the remedy, which would be
acceptable. Objective is that men committing such crimes
should not escape punishment. Hence stringent provisions
were brought in by shifting the burden onto the accused by
bringing in the deemed clause. As aforesaid, the definition
of `dowry' was amended with effect from 19th November, 1986,
to include a period even after the marriage.
The offence alleged against appellants 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
1961 Act. It was argued on behalf of the appellants that
mere demand of scooter or fridge would not be a demand for
dowry. We find from the evidence on record that within a few
days after the marriage, the deceased was tortured,
maltreated and harassed for not bringing the aforesaid
articles in marriage. Hence the demand is in connection with
marriage. The argument that here 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 of indirect. It is significant
that Section 4 of the 1961 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 appellant seeks,
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 -
Penalty for demanding dowry, under the 1961 Act and the
Indian Penal Code. This makes it clear that even demand of
dowry on other ingredients being satisfied is punishable.
This leads to the inference, when persistent demands for TV
and scooter are made from the bride after marriage or from
her parents, it would constitute to be in connection with
the marriage and it would be a case of demand of dowry
within the meaning of Section 304-B IPC. It is not always
necessary that there be any agreement for dowry.
Reverting to the present case, the evidences of the
aforesaid PWs are very clear. After few days of the
marriage, there was demand of scooter and fridge, which when
not being met lead to repetitive taunts and maltreatment.
Such demands cannot be said to be not in connection with the
marriage. Hence the evidence qualifies to be demand for
dowry in connection with the marriage and in the
circumstances of the case constitutes to be a case falling
within the definition of `dowry' under Section 2 of 1961 Act
and Section 304-B IPC.
The next question is, whether there was any cruelty or
harassment by the deceased's husband or any relative and
that too it was soon before her death. The argument put in
is that neither there is any physical injury nor any
evidence of cruelty from any neighbours or other independent
persons; hence there is no cruelty or harassment. In our
considered opinion, cruelty nor harassment need not be
physical. Even mental torture in a given case would be a
case of cruelty and harassment within the meaning of Section
304-B and 498-A IPC. Explanation (a) to Section 498-A itself
refers to both mental and physical cruelty. In view of
Explanation (a) the argument is, before it constitutes to be
a cruelty there has to be wilful conduct. Again wilful
conduct means, conduct wilfully done may be inferred by
direct or indirect evidence which could be construed to be
such. We find, in the present case, on account of not
satisfying the demand of the aforesaid goods, right from the
next day, she was repeatedly taunted, maltreated and
mentally tortured by calling her ugly etc. A girl dreams of
great days ahead with hope and aspiration when entering into
a marriage, and if from the very next day the husband
starts taunting for not bringing dowry and calling her ugly,
there cannot be greater mental torture, harassment or
cruelty for any bride. There was a quarrel a day before her
death. This by itself, in our considered opinion, would
constitute to be a wilful act to be a cruelty both within
the meaning of Section 498-A and Section 304-B IPC.
The argument, that There is no evidence of any cruelty
or harassment soon before her death, is also not correct.
We find both from the evidence of her sister, Trachala Devi
PW-5 and her brother-in-law, Ram Gopal PW-7, that the
deceased on 14th May, 1987 came to Shahdara (Delhi) to mourn
the death of her maternal uncle and by evening on the same
day instead of returning to her husband's place came to her
sister's house. She remained there for few days. Both
deposed that she told them that her husband was maltreating
her in view of dowry demand, and that not being satisfied
was harassing her. When on 17th May, 1987 the husband came
to take her back, she was reluctant but Trishala Devi
brought her down and sent her with her husband. Though she
went with the husband but with the last painful words that
"it would be difficult now to see her face in the future".
On the very next day, on 19th May, one day after she arrived
at her husband's place, the unfortunate death of Urmil took
place. She died admittedly on account of total burn of her
body. Admittedly the incident of quarrel as deposed was only
a day before her death. There is direct evidence that on
17th May itself, there was quarrel at the house of her
sister with the deceased and her husband. The quarrel
between the deceased and her husband was tried to be
explained as some other quarrel which should not constitute
to be a quarrel in connection with the marriage. We find
that Section 8-A of the aforesaid 1961 Act which came into
force w.e.f. 2nd October, 1985 for taking or abetting any
dowry, the burden to explain is placed on such person
against whom the allegation of committing an offence is
made. Similarly, under Explanation to Section 113-B of the
Indian Evidence Act, which was also brought in by the
aforesaid Act No. 43 of 1986, there is presumption that such
death is on account of dowry death. Thus the burden, if at
all, was on the accused to prove otherwise.
The aforesaid evidence would, on the facts and
circumstances of the case, bring to an inescapable
conclusion that the aforesaid quarrel referred to by PWs 5 &
7 a day before actual death of the deceased, cumulatively
with other evidence constitute to be cruelty and harassment
in connection with marriage and that too at her own sister's
place which has direct co-relation with the preceding
evidence of repeated demand of dowry, to be a case covered
both under Section 304-B and 498-A IPC. However, it was open
to the accused to prove otherwise or dispel by means of
evidence to destroy that deeming clause. But we find he has
not been able to do so. Such burden is placed on the accused
with a purpose. Evidence also concludes harassment to the
deceased within the meaning of Section 498-A Explanation
(b), as she was repeatedly coerced for not meeting the
demands leading to her mental torture and agony which
ultimately led her to commit suicide.
In the present case, we find that both the courts below
found that inspite of thorough cross-examination, there is
no deviation on this issue. In fact, it has been pointed out
by the learned counsel for the respondent that on the
question of cruelty and torture, there is no cross-
examination though there is some on other points. The courts
below have rightly believed the testimonies of the PWs and
we do not find that there is anything for us to deviate from
the same. On the other hand, the evidence of the defence is
of perfunctory nature, not enough to dispel the burden cast.
A faint submission was also made that it would not be a
case of abetment of suicide under Section 306 IPC. Reference
to Section 107 IPC was also made where abetment should fall
under any of the three heads. Reliance is placed on the
first head. We find that the first head provides "instigates
any person to do that thing". There is no doubt in the
present case there is repeated demand from the husband's
side from the girl and her parents for the various articles
as aforesaid and on failure, the girl was tortured, harassed
by words and deeds, amounting to cruelty. As we have held
above and one day before the fateful day, the husband
saturated the mental agony and cruelty by quarrelling with
the wife (deceased) even at her sister's place, leaving no
option which led the deceased to commit suicide. This mental
state is further clear by the following words which she
spoke to her sister, "it would be difficult now to see her
face in the future". In our opinion all this would
constitute to be an act which would be an abetment for the
commission of the suicide by the girl. The husband, in the
present case, has not led any cogent evidence or brought any
circumstance to dislodge the aforesaid inference. Of course
benefit of doubt to the accused would be available provided
there is supportive evidence on the record. Hence, for
creating doubt or granting benefit of doubt, the evidence
was to be such which may lead to such doubt. We do not find
that present is a case where any benefit of doubt results at
least against the husband. There is direct evidence, as
stated by the aforesaid witnesses PWs 5 & 7 that soon before
her death she was subjected to cruelty by the husband.
However, we find in so far appellant Nos. 2 & 3, father-in-
law and the mother-in-law, are concerned, the evidence is of
a general nature. No convincing evidence has been led that
the deceased was subjected to cruelty by appellant Nos.2 &
3. Before holding that appellant Nos. 2 & 3 had committed
the offence, it had to be found that they are responsible
for subjecting her to cruelty or harassment, soon before her
death. We find in this case evidence is only confined to the
husband and not against appellant Nos. 2 & 3. Hence on the
evidence on record, so far as appellant Nos. 2 & 3 are
concerned, we extend to them the benefit of doubt and acquit
them.
Hence, for the aforesaid reasons, we partly allow the
appeal. Convictions and sentences of appellant No.1 are
maintained but the convictions and sentences of the
appellant Nos. 2 & 3 are set aside. Accordingly, appellant
No.1, namely Pawan Kumar is sentenced to 7 years' rigorous
imprisonment with a fine of Rs. 500/-, in default of payment
of fine for further rigorous imprisonment for 6 months under
Sec tion 304-B IPC, 4 years' rigorous imprisonment and to
pay a fine of Rs 200/-, in default payment of fine further
rigorous imprisonment for 3 months, under Section 306 IPC,
and sentence for 2 years' rigorous imprisonment and to pay
fine for Rs.200/-, and in default of payment of fine further
rigorous imprisonment for three months, under Section 498-A
IPC. All the sentences would run concurrently. The other
appellants, namely appellants Nos. 2 & 3 are hereby
acquitted. They are on bail. They need not surrender to
their bail bonds. Their bail bonds are hereby discharged.
The appeal is allowed in part.
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