Explanation to Section 304-B refers to dowry "as having
the same meaning as in Section 2 of the 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 the period subsequent to the marriage. This
position was highlighted in Pawan Kumar and Ors. v. State of
Haryana (1998 (3) SCC 309).
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.
IN THE SUPREME COURT OF INDIA
Baldev Singh …
Vs.
State of Punjab
citation;Air 2001 SC913;JT2008(8)SC690
Dr. Arijit Pasayat, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court
dismissing the appeal filed by the appellant, while directing
acquittal of the co-accused Narinder Kaur. Learned Sessions
Judge, Amritsar, had convicted both, the present appellant
and Surjit Kaur for the offence punishable under Section 304-
1B of the Indian Penal Code, 1860 (in short “IPC”) and had
sentenced each of them to undergo rigorous imprisonment for
10 years and to pay a fine of Rs.1,000/- in default of payment
of fine to further undergo rigorous imprisonment for three
months. It is to be noted that Narinder Kaur had faced trial
along with the appellant Baldev Singh and Surjit Kaur but was
acquitted of the charges by the trial court.
3. The case of the prosecution is as under:-
Satwant Kaur @ Bholi was the sister of Rachhpal Singh
(PW-4) and was married with Baldev Singh accused on
8.6.1991. Within about a month of their marriage, differences
cropped up between the deceased and her husband as the
mother-in-law and husband of the deceased started
demanding a fridge and a T.V. Within three days of the
marriage, the mother of Bholi had died, at the anniversary of
their mother's death, Rachhpal Singh (PW-4) had collected a
sum of Rs.12,000/- from the sale of paddy and Rs.8,000/-
after encashing the National Saving Certificates and had given
2an amount of Rs.20,000/- to Baldev Singh. According to the
complainant, for two months, after the payment there was no
quarrel, but thereafter accused Baldev Singh, his mother
Surjit Kaur and sister Narinder Kaur again started saying that
at the time of the marriage adequate jewellery had not been
given. The result was that the witness had again collected a
sum of Rs.20,000/- by encashing the Fixed Deposit Receipt
and paid the amount to Baldev Singh. In the month of
October, 1992, accused Baldev Singh had fixed a date for the
marriage of his younger brother and as the father of Rachhpal
Singh (PW-4) and Satwant Kaur had died, Baldev Singh
accused started asking for his share in the estate of his fatherin-law. In view of this, Rachhpal Singh and his brothers
Nirmal Singh and Avtar Singh had gone to the house of
Satwant Kaur and there they tried to persuade the accused
and other members of the family not to harass Satwant Kaur
@ Bholi and assured them that in due course they would meet
whatever was demanded by him. At this time Baldev Singh
and the members of his family had told that they were not
demanding any specific piece of land and that they would be
3satisfied in case an amount of Rs.1,00,000/- was given.
Rachhpal Singh (PW-4) had then told accused Baldev Singh
that they had decided to hold the anniversary of his father's
death on 13
th
September, 1992 and they would pay the
accused the amount of Rs.1,00,000/- on that day. The details
regarding the harassment that was being faced by Satwant
Kaur were communicated by her to her brother Rachhpal
Singh from time to time in various letters that were written by
her. In these letters, (Ex. PW-4/A to Ex. PW-4/D) Satwant
Kaur had given the details of the demands by her husband
and in-laws and she had also been apprising her brothers of
the treatment given to her by her mother-in-law, sister-in-law
and the husband whenever she met them. On 2.9.1992
Rachhpal Singh had received a letter written by Satwant Kaur.
This letter had been brought from Amritsar to Chandigarh by
the wife of Amrik Singh, who in turn, had taken it to Pinjore to
deliver the same to Rachhpal Singh. After going through the
letter Rachhpal Singh had become very upset and had left for
Amritsar and reached there about 7-8 P.M. During the night,
he had stayed at the house of his second sister and in the
4morning of 3.9.1992 he had gone to the house of Satwant
Kaur along with his brother-in-law Narinder Singh. On
reaching the house, he found that Satwant Kaur was lying on
a cot while her husband, sister-in-law and mother-in-law were
standing nearby. On seeing him, Satwant Kaur had again
indicated that the accused had harassed and beaten her
regarding her inability to bring more money. She had also
told Rachhpal Singh (PW-4) that she had consumed some
poisonous substance as a result of which, she would die and
requested him to ensure that the accused did not escape the
rigours of law. At this point of time, Rachhpal Singh found
the attitude of the accused very hostile and had told Narinder
Singh that they should try to move out of the house and come
back with some more relatives. Thereafter Rachhpal Singh and
Narinder Singh had gone away from the house of the accused
and with some relatives returned there at about 9.30 A.M.
When they reached the house, they found that none of the
accused was present in the house and even Satwant Kaur was
not present there. On enquiry, it transpired that Satwant
Kaur had been removed by the accused but the neighbourers
5were not certain whether Satwant Kaur was dead or alive.
Fearing that the accused may try to burn the dead body, the
witness first went to the cremation ground and thereafter to
various doctors. At about 6/6.15 P.M. they reached Guru
Nanak Dev Hospital and found ASI Amrik Singh going inside
and before him Rachhpal Singh made statement Ex. PW-4/A,
which was reduced into writing and signed by the witness. He
then accompanied the police to the mortuary, where he saw
the dead body of Satwant Kaur.
Assistant Sub Inspector Amrik Singh (PW-7) had gone to
Guru Nanak Dev Hospital, Amritsar after receipt of
information regarding the death of Satwant Kaur and on
reaching the hospital, had met Rachhpal Singh (PW-4) and
recorded his statement. He thereafter made his endorsement
thereon and sent the same to the police station for recording
the formal FIR, Ex. PW-7/B. He had gone to the mortuary,
prepared inquest report Ex. PW-1/B and got done the postmortem on the dead body. Dr. R.K. Gorea (Pw-1) conducted
the post mortem examination on 4.9.1992 at 5.00 P.M., who
6gave his opinion that the cause of death in this case was due
to poisoning with organo phosphorus group of insecticide,
which was sufficient to cause death in the ordinary course of
nature. The Investigating Officer recorded the statements of
the witnesses and prepared rough site plan. On completion of
necessary investigation, accused were sent up for trial.
After the charge sheet was filed under Section 304-B IPC,
trial was held as the accused persons pleaded innocence. In
order to prove its case, the prosecution examined 7 witnesses.
In the statements recorded under Section 313 of the Code of
Criminal Procedure, 1973 (in short ‘Cr.P.C.’), accused persons
took the stand that they were falsely implicated in this case.
The trial court relied upon the evidence of PW.4 and
PW.5 and found that their evidence was clear and cogent to
the effect that the deceased was being harassed for not
bringing adequate dowry and though some of the demands
were satisfied by the relatives, the demands persisted. On
account of such persistent demands, the deceased felt
7harassed and consumed poison and had ultimately died as a
result thereof. With reference to the evidence of Dr. R.K.
Gorea, PW.1, it was noted that the death of the deceased was
as a result of consuming organo phosphorus group of
insecticide and the death was unnatural and had taken place
within 7 years of the date of marriage. The trial court,
accordingly, found the appellant and Surjit Kaur guilty while
directing acquittal of Narinder Kaur.
In appeal, the stand taken by the appellant was that with
a view to falsely implicate the accused persons, the case was
lodged. It was submitted that the deceased was deprived of
her legitimate share in the ancestral property and because of
this she was in mental depression leading to her committing
suicide. It was pointed out that if the appellant on behalf of
the deceased had asked for her legitimate share in the
ancestral property that does not amount to dowry demand.
The prosecution, on the other hand, relied on the evidence of
PW.4 and PW.5 to show that the demand was not restricted
only to the share in the ancestral properties but also to the
8other demands which were nothing but dowry demands. The
High Court found substance in the plea of the prosecution
and upheld the conviction.
4. In support of the appeal, learned counsel for the
appellant submitted that the evidence of PW.4 and PW.5
should not have been relied upon. The stand taken before the
High Court that the demand related to the share in the
ancestral property and cannot be termed as dowry demand
was reiterated. Additionally, it was submitted that custodial
sentence of 10 years as imposed is harsh.
5. Learned counsel for the Respondent-State, on the other
hand, supported the judgment of the trial court as upheld by
the High Court qua the appellant.
6. In order to attract Section 304B IPC, the following
ingredients are to be satisfied.
9i) The death of a woman must have been caused by
burns or bodily injury or otherwise than under normal
circumstances.
ii) Such death must have occurred within 7 years of
the marriage.
iii) Soon before her death, the woman must have
been subjected to cruelty or harassment by her
husband or any relative of her husband; and
iv) Such cruelty or harassment must be in
connection with the demand of dowry.
7. In the instant case the marriage took place on 8.6.1991
and the death took place on 3.9.1992 other than in normal
circumstances within 7 years of the marriage. The evidence of
PW.4 and PW.5 were to the effect that the demand of dowry
was made just before the deceased committed suicide.
8. Sections 304B and Section 498A read as follows:
“304-B. Dowry Death- (1) Where the death of a
woman is caused by any burns or bodily
injury or occurs otherwise than under normal
10circumstances 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 subsection ‘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.”
“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 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
11unlawful 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.”
9. The term “dowry” has been defined in Section 2 of the
Dowry Prohibition Act, 1961 (in short ‘Dowry Act’) 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
12consideration 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).”
10. Explanation to Section 304-B refers to dowry "as having
the same meaning as in Section 2 of the 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 the period subsequent to the marriage. This
position was highlighted in Pawan Kumar and Ors. v. State of
Haryana (1998 (3) SCC 309).
11. 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
13any 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
14giving 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.
12. Section 113-B of the Evidence Act is also relevant for the
case at hand. Both Section 304-B IPC and Section 113-B 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 113-B reads
as follows:-
“113-B: Presumption as to dowry deathWhen 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).”
15The necessity for insertion of the two provisions has been
amply analysed by the Law Commission of India in its 21
st
Report dated 10
th
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 113-B in the
Evidence Act has been inserted. As per the definition of
‘dowry death’ in Section 304-B IPC and the wording in the
presumptive Section 113-B 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 113-B 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:
16(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 304-B 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.
13. 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. 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
17normal 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. 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 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 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
18who is in the possession of goods ‘soon after the theft, is either
the thief 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.
14. It is true that demanding of her share in the ancestral
property will not amount to a dowry demand, but the evidence
of PW.4 and PW.5 shows that the demands were in addition to
the demand for her share in the ancestral property. Certain
letters which were brought on record clearly establish the
19demand for dowry. The conviction as recorded by the trial
court and upheld by the High Court does not warrant any
interference. However, the custodial sentence appears to be
on the higher side. The same is reduced to the minimum
prescribed i.e. 7 years. In the ultimate result, with the
modification of sentence, the appeal stands disposed of.
................................J.
(Dr. ARIJIT PASAYAT)
................................J.
(HARJIT SINGH BEDI)
New Delhi;
August 4, 2008
20
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