Sunday, July 18, 2010

SC - customary payments in connection with the birth of a child or other ceremonies didn't fall within the ambit of the word "dowry"

                   IN THE SUPREME COURT OF INDIA

                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL No. 1489 OF 2004

Ashok Kumar                                           ....Appellant

                                   Versus

State of Haryana                                      ....Respondent

                                 JUDGMENT

Swatanter Kumar, J.

1. Inter alia but primarily the appellant has raised a question of law in

   the present appeal.    The contention is, that every demand by the

   husband or his family members cannot be termed as `dowry

   demand' within the meaning of Section 2 read with Section 4 of the

   Dowry Prohibition Act, 1961 (for short referred to as `the Act') and

   consequently, the death of the deceased cannot be termed as a

   `dowry death' within the ambit and scope of Section 304-B of the

   Indian Penal Code (for short `the Code') and, as such, the

                                   1
  conviction and order of sentence passed against the appellant is

  liable to be set aside.

2. It is a settled canon of criminal jurisprudence that the question of

  law has to be examined in light of the facts and circumstances of a

  given case. Thus, reference to the facts giving rise to the present

  appeal would be necessary.

3. Vipin @ Chanchal @ Rekha, the deceased and Ashok Kumar, the

  appellant herein, were married on 9th October, 1986. Harbans Lal,

  the father of the deceased had given sufficient dowry at the time of

  her marriage according to his means, desire and capacity. But,

  the appellant and his family members i.e. Mukesh Kumar, the

  brother of the appellant and Smt. Lajwanti, the mother of the

  appellant were not satisfied with the dowry. They allegedly used

  to harass and maltreat the deceased and used to give her

  beatings.   They had demanded a refrigerator, a television etc.

  One week prior to the date of occurrence, the deceased came to

  the house of her father at Kaithal and narrated the story. She

  specifically mentioned that her husband wanted to set up a new

  business for which he required a sum of            Rs. 5,000/-. The

                                  2
  father of the deceased could not manage the same due to which

  the appellant and his family members particularly, Lajwanti and

  Mukesh alleged to have burnt the deceased by sprinkling

  kerosene oil on her as a result of which the deceased died in the

  hospital at about 4.00 p.m. on 16.05.1988.       The father of the

  deceased received information of the incident from his sister's son

  Subhash Chand. Neither the appellant nor his family members

  informed him about the said demise.

     The father of the deceased moved a complaint (Ex. PA) before

SI Randhir Mohan who made endorsement (Ex. PA/1) on the basis of

which FIR (Ex. PU) was recorded. This was done by SI Randhir

Mohan on the basis of ruqa (Ex. PQ) received on 16.05.1988 at about

5.45 p.m. The deceased was brought to the hospital as a burnt case

in gasping condition and she expired in casualty. The said officer

went to the General Hospital, completed the proceedings under

Section 174 of the Criminal Procedure Code (for short `the Cr.PC')

and during those proceedings he recorded the statements of

Lajwanti, mother in law of the deceased, Ram Lal, father in law of the

deceased, Khem Chand, Harbans Lal             and one Arjun Dass.

Thereafter, the body was sent for postmortem which was handed

                                  3
over to Hanbans Lal, after the post mortem.       The complaint was

made by Harbans Lal (PW-1) on 17th May, 1988. Site Plan (Ex. PW)

as well as the photographs (Ex. P-14 to P-17) and their negatives

(Ex. P-18 to P-21) were prepared by Photographer Satish Kumar

(PW-10).   Ex. P6 was also taken into possession which was half

burnt small tin, containing 3 litres of kerosene oil under Ex. PH which

was sealed. Certain other goods like hammer (Ex. PK), broken piece

of a wooden door (Ex. P-11), half burnt match stick, match box etc

(Ex. P-12) were also taken into possession.

4. After completing the investigation of the case and recording the

  statements of the relevant witnesses, the Investigating Officer

  submitted the charge sheet in terms of Section 173 of the Cr.PC.

  The case was committed to the Court of Sessions by the learned

  CJM vide his order dated 18th October, 1988 which framed the

  charge under Section 304-B of the Code read with Section 34 of

  the Code.     Upon completion of the evidence of prosecution,

  statement of the accused under Section 313 of Cr.PC was

  recorded.

                                  4
5. The   learned   Trial   Court   by     a   detailed    judgment   dated

  13.01.1989/16.01.1989 held all the three accused viz., Ashok

  Kumar, Mukesh Kumar and Lajwanti, guilty of the offence

  punishable under Section 304-B of the Code and vide order of the

  same    date,    sentenced   the       accused   to    undergo   rigorous

  imprisonment for a term of 10 years and to pay a fine of Rs.

  1,000/- each and in default of payment of fine, to further undergo

  rigorous imprisonment for 3 months.

6. Aggrieved by the aforesaid judgment and order of sentence

  passed by the Trial Court, the accused filed an appeal before the

  High Court of Punjab and Haryana at Chandigarh, which was

  partially accepted. Lajwanti and Mukesh, the mother and brother

  of the accused Ashok Kumar, were acquitted of the offence under

  Section 304-B of the Code while the conviction of Ashok Kumar,

  accused was upheld and the order of sentence was also

  maintained by the High Court.

7. Aggrieved by the judgment of the High Court dated 16th December,

  2003, Ashok Kumar, the appellant herein, has filed the present

  appeal. While impugning the judgment under appeal and besides

                                     5
raising the legal contention afore noticed, it is also contended that

the Courts below have failed to appreciate the evidence in its

correct perspective. The evidence brought on record clearly show

that there was no connection between the death of the deceased

and the alleged dowry demands or alleged cruelty. Further, it is

contended that there was delay in registration of the FIR and no

explanation has been rendered whatsoever in that behalf. The

occurrence was dated 16.05.1988 at 4.00 p.m. and the FIR was

lodged on 17.05.1988, while the deceased died in the hospital on

16.05.1988. Unexplained and inordinate delay in lodging FIR (Ex.

PU) creates a serious doubt on the case of the prosecution. There

were no specific allegations made in the FIR with regard to dowry

and the allegations made, in any case, did not specify the basic

ingredients of dowry demand.         While criticizing the serious

contradiction between the statements of prosecution witnesses, it

is also contended that the prosecution has failed to prove its case

beyond any reasonable doubt particularly, keeping in view the

letters written (Ex. DB to DJ), no offence could be established

against the accused and, as such, he is entitled to be acquitted.

                                6
8.   On the contrary, it is argued on behalf of the State that by virtue of

     cumulative effect of the statements of Harbans Lal, the father of

     the deceased (PW-1), Krishna Rani, the mother of the deceased

     (PW-2) and Subhash Chand (PW-3) read in conjunction with

     documentary evidence and the statement of the Investigating

     Officer, the prosecution has been able to prove the charge beyond

     any reasonable doubt. It is contended that one witness, produced

     by the accused himself, has fully corroborated the case of the

     prosecution and, as such, the appellant was rightly convicted and

     sentenced by the Courts below and the judgment under appeal

     does not suffer from any legal or other infirmity. According to the

     prosecution, the appeal should be dismissed.

9. At the very outset, we would proceed to deal with the legal

     submissions made on behalf of the appellant. But before that, we

     must notice that the appellant was neither charged with the

     offence under Section 4 of the Act nor he has been found guilty of

     the said offence. Thus, the submissions have to be examined only

     from the point of view that the appellant has been convicted for an

     offence under Section 304-B of the Code and the provisions of the

     Act are relevant only for examining the merit or otherwise of the

                                     7
  contention raised that the expression `dowry', as per explanation to

  the provisions of Section 304-B of the Code, has to be given the

  same meaning as in Section 2 of the Act.

10. The appellant was charged with an offence under Section 304-B of

  the Code.     This penal section clearly spells out the basic

  ingredients as well as the matters which required to be construed

  strictly and with significance to the cases where death is caused

  by burns, bodily injury or the death occurring otherwise than under

  normal circumstances, in any manner, within 7 years of a

  marriage. It is the first criteria which the prosecution must prove.

  Secondly, that `soon before her death' she had been subjected to

  cruelty or harassment by the husband or any of the relatives of the

  husband for, or in connection with, any demand for dowry then

  such a death shall be called `dowry death' and the husband or the

  relative, as the case may be, will be deemed to have caused such

  a death. Explanation to this section requires that the expression

  `dowry' shall have the same meaning as in Section 2 of the Act.

  The definition of dowry under Section 2 of the Act reads as under :

                                 8
                "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 parent 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 mahr in
                the case of persons to whom the Muslim
                Personal Law (Shariat) applies.

                Explanation II.--The expression "valuable
                security" has the same meaning as in section
                30 of the Indian Penal Code (45 of 1860)."

11. From the above definition it is clear that, `dowry' means any

  property or valuable security given or agreed to be given either

  directly or indirectly by one party to another, by parents of either

  party to each other or any other person at, before, or at any time

  after the marriage and in connection with the marriage of the said

  parties but does not include dower or mahr under the Muslim

  Personal Law. All the expressions used under this Section are of

  a very wide magnitude.       The expressions `or any time after

  marriage' and `in connection with the marriage of the said parties'

  were introduced by amending Act 63 of 1984 and Act 43 of 1986

                                 9
  with effect from 02.10.1985 and 19.11.1986 respectively. These

  amendments appear to have been made with the intention to

  cover all demands at the time, before and even after the marriage

  so far they were in connection with the marriage of the said

  parties. This clearly shows the intent of the legislature that these

  expressions are of wide meaning and scope. The expression `in

  connection with the marriage' cannot be given a restricted or a

  narrower meaning.       The expression `in connection with the

  marriage' even in common parlance and on its plain language has

  to be understood generally.     The object being that everything,

  which is offending at any time i.e. at, before or after the marriage,

  would be covered under this definition, but the demand of dowry

  has to be `in connection with the marriage' and not so customary

  that it would not attract, on the face of it, the provisions of this

  section.

12. At this stage, it will be appropriate to refer to certain examples

  showing what has and has not been treated by the Courts as

  `dowry'. This Court, in the case of Ram Singh v. State of Haryana

  [(2008) 4 SCC 70], held that the payments which are customary

  payments, for example, given at the time of birth of a child or other

                                 10
  ceremonies as are prevalent in the society or families to the

  marriage, would not be covered under the expression `dowry'.

  Again, in the case of Satbir Singh v. State of Punjab [AIR 2001 SC

  2828], this Court held that the word `dowry' should be any property

  or valuable given or agreed to be given in connection with the

  marriage. The customary payments in connection with birth of a

  child or other ceremonies are not covered within the ambit of the

  word `dowry'. This Court, in the case of Madhu Sudan Malhotra v.

  K.C. Bhandari [(1988) Supp. 1 SCC 424], held that furnishing of a

  list of ornaments and other household articles such as refrigerator,

  furniture and electrical appliances etc., to the parents or guardians

  of the bride, at the time of settlement of the marriage, prima facie

  amounts to demand of dowry within the meaning of Section 2 of

  the Act. The definition of `dowry' is not restricted to agreement or

  demand for payment of dowry before and at the time of marriage

  but even include subsequent demands, was the dictum of this

  Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa

  [(2004) 4 SCC 470].

13. The Courts have also taken the view that where the husband had

  demanded a specific sum from his father-in-law and upon not

                                 11
  being given, harassed and tortured the wife and after some days

  she died, such cases would clearly fall within the definition of

  `dowry' under the Act. Section 4 of the Act is the penal Section

  and demanding a `dowry', as defined under Section 2 of the Act, is

  punishable under this section. As already noticed, we need not

  deliberate on this aspect, as the accused before us has neither

  been charged nor punished for that offence. We have examined

  the provisions of Section 2 of the Act in a very limited sphere to

  deal with the contentions raised in regard to the applicability of the

  provisions of Section 304-B of the Code.

14. We have already referred to the provisions of Section 304-B of the

  Code and the most significant expression used in the Section is

  `soon before her death'. In our view, the expressions `soon before

  her death' cannot be given a restricted or a narrower meaning.

  They must be understood in their plain language and with

  reference to their meaning in common parlance. These are the

  provisions relating to human behaviour and, therefore, cannot be

  given such a narrower meaning, which would defeat the very

  purpose of the provisions of the Act. Of course, these are penal

  provisions and must receive strict construction. But, even the rule

                                  12
  of strict construction requires that the provisions have to be read in

  conjunction with other relevant provisions and scheme of the Act.

  Further, the interpretation given should be one which would avoid

  absurd results on the one hand and would further the object and

  cause of the law so enacted on the other.

15. We are of the considered view that the concept of reasonable time

  is the best criteria to be applied for appreciation and examination

  of such cases. This Court in the case of Tarsem Singh v. State of

  Punjab [AIR 2009 SC 1454], held that the legislative object in

  providing such a radius of time by employing the words `soon

  before her death' is to emphasize the idea that her death should,

  in all probabilities, has been the aftermath of such cruelty or

  harassment. In other words, there should be a reasonable, if not

  direct, nexus between her death and the dowry related cruelty or

  harassment inflicted on her. Similar view was expressed by this

  Court in the case of Yashoda v. State of Madhya Pradesh [(2004)

  3 SCC 98], where this Court stated that determination of the period

  would depend on the facts and circumstances of a given case.

  However, the expression would normally imply that there has to be

  reasonable time gap between the cruelty inflicted and the death in

                                  13
  question. If this is so, the legislature in its wisdom would have

  specified any period which would attract the provisions of this

  Section. However, there must be existence of proximate link

  between the acts of cruelty along with the demand of dowry and

  the death of the victim. For want of any specific period, the

  concept of reasonable period would be applicable. Thus, the

  cruelty, harassment and demand of dowry should not be so

  ancient whereafter, the couple and the family members have lived

  happily and that it would result in abuse of the said protection.

  Such demand or harassment may not strictly and squarely fall

  within the scope of these provisions unless definite evidence was

  led to show to the contrary. These matters, of course, will have to

  be examined on the facts and circumstances of a given case.

16. The cruelty and harassment by the husband or any relative could

  be directly relatable to or in connection with, any demand for

  dowry.    The expression `demand for dowry' will have to be

  construed ejusdem generis to the word immediately preceding this

  expression.   Similarly, `in connection with the marriage' is an

  expression which has to be given a wider connotation. It is of

  some significance that these expressions should be given

                                14
  appropriate meaning to avoid undue harassment or advantage to

  either of the parties. These are penal provisions but ultimately

  these are the social legislations, intended to control offences

  relating to the society as a whole.     Dowry is something which

  existed in our country for a considerable time and the legislature in

  its wisdom considered it appropriate to enact the law relating to

  dowry prohibition so as to ensure that any party to the marriage is

  not harassed or treated with cruelty for satisfaction of demands in

  consideration and for subsistence of the marriage.

17. The Court cannot ignore one of the cardinal principles of criminal

  jurisprudence that a suspect in the Indian law is entitled to the

  protection of Article 20 of the Constitution of India as well as has a

  presumption of innocence in his favour. In other words, the rule of

  law requires a person to be innocent till proved guilty.         The

  concept of deeming fiction is hardly applicable to the criminal

  jurisprudence. In contradistinction to this aspect, the legislature

  has applied the concept of deeming fiction to the provisions of

  Section 304-B.    Where other ingredients of Section 304-B are

  satisfied, in that event, the husband or all relatives shall be

  deemed to have caused her death. In other words, the offence

                                  15
   shall be deemed to have been committed by fiction of law. Once

   the prosecution proves its case with regard to the basic ingredients

   of Section 304-B, the Court will presume by deemed fiction of law

   that the husband or the relatives complained of, has caused her

   death. Such a presumption can be drawn by the Court keeping in

   view the evidence produced by the prosecution in support of the

   substantive charge under Section 304-B of the Code.

18. Of   course,    deemed       fiction    would   introduce   a   rebuttable

   presumption and the husband and his relatives may, by leading

   their defence and proving that the ingredients of Section 304-B

   were not satisfied, rebut the same.          While referring to raising of

   presumption under Section 304-B of the Code, this Court, in the

   case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828],

   stated the following ingredients which should be satisfied :

              "4...................

              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.

                                       16
                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."

19.      In light of the above essential ingredients, for constituting an

      offence under Section 304-B of the Code, the Court has to attach

      specific significance to the time of alleged cruelty and harassment

      to which the victim was subjected to and the time of her death, as

      well as whether the alleged demand of dowry was in connection

      with the marriage. Once these ingredients are satisfied, it would

      be called the `dowry death' and then, by deemed fiction of law, the

      husband or the relatives would be deemed to have committed that

      offence. The learned counsel appearing for the appellant, while

      relying upon the case of Tarsem Singh (supra), contended that the

      concept of `soon before the death' is not attracted in relation to the

      alleged harassment or cruelty inflicted upon the deceased, in the

      facts of the present case. The oral and documentary evidence

      produced by the prosecution does not suggest and satisfy the

      essential ingredients of the offence.

                                      17
20. Similarly, reference was also made to the judgment of this Court in

  the case of Appasaheb v. State of Maharashtra [(2007) 9 SCC

  721], to substantiate the contention that there was no co-relation

  between giving or taking of the property with the marriage of the

  parties and, as such, the essential ingredients of Section 2 of the

  Act were missing.     Accordingly, it is argued that there was no

  demand of dowry by the appellant but it was merely an

  understanding that for his better business, at best, the amounts

  could be given voluntarily by the father of the deceased. This fact

  was further sought to be substantiated while referring to the

  following abstracts of the judgment in the case of Appasaheb

  (supra):

                 "6........The learned trial Judge then sought
                 clarification from the witnesses by putting the
                 following question:

                 "Question: What do you mean by `domestic
                 cause'?
                 Answer: What I meant was that there was a
                 demand for money for defraying expenses of
                 manure, etc. and that was the cause."
                 In the very next paragraph she stated as
                 under:
                 "It is not true to suggest that in my statement
                 before the police I never said that ill-treatment
                 was as a result of demand for money from us
                 and its fulfilment. I cannot assign any reason

                                  18
why police did not write about it in my
statement."

xxx          xxx           xxx              xxx

9. Two essential ingredients of Section 304-B
IPC, apart from others, are (i) death of woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances, and (ii) woman is subjected to
cruelty or harassment by her husband or any
relative of her husband for, or in connection
with, any demand for "dowry". The explanation
appended to sub-section (1) of Section 304-B
IPC says that "dowry" shall have the same
meaning as in Section 2 of the Dowry
Prohibition Act, 1961.

xxx          xxx          xxx              xxx

11. In view of the aforesaid definition of the
word "dowry" any property or valuable security
should be given or agreed to be given either
directly or indirectly at or before or any time
after the marriage and in connection with the
marriage of the said parties. Therefore, the
giving or taking of property or valuable
security must have some connection with the
marriage of the parties and a correlation
between the giving or taking of property or
valuable security with the marriage of the
parties is essential. Being a penal provision it
has to be strictly construed. Dowry is a fairly
well-known social custom or practice in India.
It is well-settled principle of interpretation of
statute that if the Act is passed with reference
to a particular trade, business or transaction
and words are used which everybody
conversant with that trade, business or
transaction knows or understands to have a
particular meaning in it, then the words are to
be construed as having that particular
meaning. (See Union of India v. Garware
Nylons Ltd. and Chemical and Fibres of India

                 19
                 Ltd. v. Union of India[(1997) 2 SCC 664].) A
                 demand for money on account of some
                 financial stringency or for meeting some
                 urgent domestic expenses or for purchasing
                 manure cannot be termed as a demand for
                 dowry as the said word is normally
                 understood. The evidence adduced by the
                 prosecution does not, therefore, show that any
                 demand for "dowry" as defined in Section 2 of
                 the Dowry Prohibition Act was made by the
                 appellants as what was allegedly asked for
                 was some money for meeting domestic
                 expenses and for purchasing manure. Since
                 an essential ingredient of Section 304-B IPC
                 viz. demand for dowry is not established, the
                 conviction of the appellants cannot be
                 sustained."

21. On the contrary, the learned counsel appearing for the State while

  relying upon the judgment of this Court in Devi Lal v. State of

  Rajasthan [(2007) 14 SCC 176], argued that the relatives and,

  particularly the father of the deceased, had specifically mentioned

  the acts of harassment and, in any case, the statement of the

  sister of the deceased, who was produced by the accused as his

  defence witness, itself clinches the entire issue and, therefore, the

  offence under Section 304-B of the Code is made out. It was also

  contended that an absolute accuracy in the statement of witnesses

  is not a condition precedent for conviction. He relied upon the

  following dictum of the Court in Devi Lal's case (supra) :

                                 20
                    "25. Indisputably, before an accused is found
                    guilty for commission of an offence, the court
                    must arrive at a finding that the ingredients
                    thereof have been established. The statement
                    of a witness for the said purpose must be read
                    in its entirety. It is not necessary for a witness
                    to make a statement in consonance with the
                    wording of the section of a statute. What is
                    needed is to find out as to whether the
                    evidences brought on record satisfy the
                    ingredients thereof."

22.    Now we may proceed to discuss the evidence led by the

      prosecution in the present case. In order to bring the issues raised

      within a narrow compass we may refer to the statement of the

      accused made under Section 313, Cr.PC. It is a settled principle

      of law that dual purpose is sought to be achieved when the Courts

      comply with the mandatory requirement of recording the statement

      of an accused under this provision. Firstly, every material piece of

      evidence which the prosecution proposes to use against the

      accused should be put to him in clear terms and secondly, the

      accused should have a fair chance to give his explanation in

      relation to that evidence as well as his own versions with regard to

      alleged involvement in the crime. This dual purpose has to be

      achieved in the interest of the proper administration of criminal

      justice and in accordance with the provisions of the Cr.P.C.

                                     21
  Furthermore, the statement under Section 313 of the Cr.PC can be

  used by the Court in so far as it corroborates the case of the

  prosecution. Of course, conviction per se cannot be based upon

  the statement under Section 313 of the Cr.PC.

23.    Let us examine the essential features of this section and the

principles of law as enunciated by judgments of this Court, which are

the guiding factor for proper application and consequences which

shall flow from the provisions of Section 313 of the Cr.PC. As already

noticed, the object of recording the statement of the accused under

Section 313 of the Cr.PC is to put all incriminating evidence to the

accused so as to provide him an opportunity to explain such

incriminating circumstances appearing against him in the evidence of

the prosecution. At the same time, also permit him to put forward his

own version or reasons, if he so chooses, in relation to his

involvement or otherwise in the crime.        The Court has been

empowered to examine the accused but only after the prosecution

evidence has been concluded. It is a mandatory obligation upon the

Court and besides ensuring the compliance thereof, the Court has to

keep in mind that the accused gets a fair chance to explain his

conduct.   The option lies with the accused to maintain silence

                                 22
coupled with simplicitor denial or, in the alternative, to explain his

version and reasons, for his alleged involvement in the commission of

crime. This is the statement which the accused makes without fear or

right of the other party to cross-examine him.          However, if the

statements made are false, the Court is entitled to draw adverse

inferences and pass consequential orders, as may be called for, in

accordance with law. The primary purpose is to establish a direct

dialogue between the Court and the accused and to put every

important incriminating piece of evidence to the accused and grant

him an opportunity to answer and explain. Once such a statement is

recorded, the next question that has to be considered by the Court is

to what extent and consequences such statement can be used during

the enquiry and the trial. Over the period of time, the Courts have

explained this concept and now it has attained, more or less, certainty

in the field of criminal jurisprudence. The statement of the accused

can be used to test the veracity of the exculpatory of the admission, if

any, made by the accused. It can be taken into consideration in any,

enquiry or trial but still it is not strictly an evidence in the case. The

provisions of Section 313 (4) of the Cr.PC explicitly provides that the

answers given by the accused may be taken into consideration in

                                   23
such enquiry or trial and put in as evidence for or against the accused

in any other enquiry or trial for any other offence for which, such

answers may tend to show he has committed. In other words, the

use of a statement under Section 313 of Cr.PC as an evidence is

permissible as per the provisions of the Code but has its own

limitations. The Courts may rely on a portion of the statement of the

accused and find him guilty in consideration of the other evidence

against him led by the prosecution, however, such statements made

under this Section should not be considered in isolation but in

conjunction with evidence adduced by the prosecution. Another

important caution that Courts have declared in the pronouncements is

that conviction of the accused cannot be based merely on the

statement made under Section 313 of the Cr.PC as it cannot be

regarded as a substantive piece of evidence.              In the case of

Vijendrajit Ayodhya Prasad Goel v. State of Bombay [AIR 1953 SC

247], the Court held as under:

           "3. ..........As the appellant admitted that he
           was in charge of the godown, further evidence
           was not led on the point. The Magistrate was
           in this situation fully justified in referring to the
           statement of the accused under Section 342
           as     supporting      the      prosecution     case
           concerning the possession of the godown.

                                    24
           The contention that the Magistrate made use
           of the inculpatory part of the accused's
           statement and excluded the exculpatory part
           does not seem to be correct. The statement
           under Section 342 did not consist of two
           portions, part inculpatory and part exculpatory.
           It concerned itself with two facts.         The
           accused admitted that he was in charge of the
           godown, he denied that the rectified spirit was
           found in that godown. He alleged that the
           rectified spirit was found outside it. This part
           of his statement was proved untrue by the
           prosecution evidence and had no intimate
           connection with the statement concerning the
           possession of the godown."

24.   From various answers given by the accused to the Court in his

statement recorded under Section 313 of the Cr.P.C., it appears that

the death of the deceased is not disputed. The allegation with regard

to cruelty was denied. However, besides denying the case of the

prosecution, the appellant took the stand that he was falsely

implicated in the crime. According to him, the deceased was not

happy with the marriage inasmuch as she was in love with some

other boy and wanted to marry him which was not permitted by her

family and that is why she committed suicide. As would be evident

from this admitted position, the death of the deceased by burning is

not an issue.    The limited question was whether the deceased

committed suicide simplicitor for the reasons given by the accused or

                                 25
in the alternative, the prosecution story, that it was a dowry death

relatable to the harassment and cruelty inflicted upon her by the

accused and his family members, is correct.

25   In the postmortem report it was noticed that the cause of death

was shock and dehydration which resulted from extensive burn

injuries, which were ante-mortem.     The postmortem report (Ex. PO)

and the body sketch (Ex. PO/1) clearly demonstrate that practically

the entire body had been affected by the burn injuries.          The

prosecution had examined Harbans Lal, the father of the deceased

(PW-1), who stated that immediately after the marriage of deceased

with the accused, both were living happily and he had given dowry

according to his capacity, but six months after her marriage, her

husband and her in-laws started teasing her and giving taunts that

she had not brought T.V. and Fridge etc. in the dowry and whenever

she used to come to him she mentioned about the same and 20 days

prior to her death she had told him that she was being troubled for a

sum of Rs. 5,000/- so that her husband could change to a new

business and while consoling her, he told her that he would arrange

for the money in some time and took her at the house of her in-laws

7-8 days prior to her death. He also stated that Ashok Kumar, the

                                 26
accused, Lajwanti, the mother-in-law of the deceased and Mukesh,

brother-in-law of the deceased, used to give her beatings and he had

filed the complaint (Ex.PA). Ex.PB and Ex. PC were the letters which

he had given to the police, however, this witness was cross-examined

and confronted with Ex. PA, where the allegation about T.V. and

Fridge etc. had not been recorded. He voluntarily stated that his son-

in-law (the accused) used to deal in vegetables but he wanted to

change to Kariyana business, and that is why he wanted a sum of

Rs. 5,000/-. Smt. Krishna Rani, the mother of the deceased, was

examined as PW-2. She admitted that a child was born from the

marriage.   She had also corroborated the statement of PW 1.

According to her, Lajwanti told that the deceased had expired.

Subhash Chand (PW-3) stated that he had informed Harbans Lal

(PW-1) about the death of the deceased due to burn injuries and

stated that they (the husband of the deceased and her in-laws) used

to ill-treat the deceased and were demanding dowry. However, he

did not refer to the demand of Rs. 5,000/-, as stated by other

witnesses. To prove the case Karta Ram, SI (PW-6), Darshan Lal,

H.C. (PW-7), Ranbir Mohan, SI (PW-8), the police officials, were also

examined by the prosecution apart from Kharati Lal, Kariyana

                                 27
Merchant (PW-4). Dr. Manjula Bansal, Medical Officer, Civil Hospital,

Jind (PW-5), was examined to prove the death of the deceased which

was caused by burn injuries.

26.    The accused had led defence and examined as many as six

witnesses.    Dr. Bhushan Aggarwal, Incharge Swami Salagram

Ashram Charitable Hospital, Jind (DW-1) was examined to primarily

show that a child was born on 30th August, 1987. Vijay Laxmi (DW-3)

and Lekh Raj (DW-4) were examined to show that there were no

dowry demands and Harbans Lal, the father of the deceased had not

complained to them about the same at any point of time. But, the

most important witness examine by the accused was Vijay Laxmi

(DW-3), who is the daughter of Harbans Lal, aged about 14 years.

She mentioned that the letter (Ex. DJ) was written by her and she

stated that sometimes Ashok Kumar, the accused used to take the

deceased to her father's house. She admitted that two days prior to

writing of the letter (Ex. DJ), her sister and sister's son had come to

her house and she stated that whatever is written in the letter is

correct. But, in her cross-examination, she stated as under:

                 "Whenever my sister visited our home after
                 marriage, she would complain that her

                                  28
                  husband and in-laws demanded dowry and
                  also they used to give her beating. She came
                  to our home 20 days prior to her death. At
                  that time she told that her in-laws etc. were
                  demanded a T.V. and Rs.5,000/-. My father
                  took her to her husband's home. My sister
                  was not suffering from my disease. She was
                  having good health."

27.      The above statement of this witness (DW-3) in cross-

examination, in fact, is clinching evidence and the accused can hardly

get out of this statement.    The defence would be bound by the

statement of the witness, who has been produced by the accused,

whatever be its worth. In the present case, DW-3 has clearly stated

that there was cruelty and harassment inflicted upon the deceased by

her husband and in-laws and also that a sum of Rs. 5,000/- was

demanded.     The statement of this witness has to be read in

conjunction with the statement of PW-1 to PW-3 to establish the case

of the prosecution. There are certain variations or improvements in

the statements of PWs but all of them are of minor nature. Even if,

for the sake of argument, they are taken to be as some contradictions

or variations in substance, they are so insignificant and mild that they

would no way be fatal to the case of the prosecution.

                                  29
28.     This Court has to keep in mind the fact that the incident had

occurred on 16.05.1988 while the witnesses were examined after

some time. Thus, it may not be possible for the witnesses to make

statements which would be absolute reproduction of their earlier

statement or line to line or minute to minute correct reproduction of

the occurrence/events.     The Court has to adopt a reasonable and

practicable approach and it is only the material or serious

contradictions/variations which can be of some consequence to

create a dent in the case of the prosecution. Another aspect is that

the statements of the witnesses have to be read in their entirety to

examine their truthfulness and the veracity or otherwise.          It will

neither be just nor fair to pick up just a line from the entire statement

and appreciate that evidence out of context and without reference to

the preceding lines and lines appearing after that particular sentence.

It is always better and in the interest of both the parties that the

statements of the witnesses are appreciated and dealt with by the

Court upon their cumulative reading.

29.   As already noticed, the expression `soon before her death' has

to be    accorded    its appropriate    meaning    in the facts and

circumstances of a given case. In the present case, there is definite

                                   30
evidence to show that nearly 20-22 days prior to her death the

deceased had come to her parental home and informed her father

about the demand of Rs. 5,000/- and harassment and torture          to

which she was subjected to by the accused and her in-laws. Her

father had consoled her ensuring that he would try to arrange for the

same and thereafter took her at her matrimonial home 7-8 days prior

to the incident.

30.    On face of the aforesaid evidence read in conjunction with the

statement of DW-3, we are convinced that ingredients of Section

304B have been satisfied in the present case. It was for the accused

to prove his defence. He had taken up the stand that the deceased

was in love with another boy and did not want to marry the accused

and the marriage of the deceased with the accused being against her

wishes was the real cause for her to commit the suicide. However,

he has led no evidence in this regard and thus, the Court cannot

believe this version put forward by the accused.

31.    The argument raised on behalf of the appellant that there was

inordinate and unexplained delay in registering the FIR is without any

                                 31
substance.    The incident occurred at 4.00 p.m. on 16.05.1988

whereafter the family of the deceased was informed. It is a normal

conduct of a normal person that the entire concentration would be

upon looking after and saving the deceased rather than to run up to

the police or other persons instantaneously. Unfortunately, she died

at 9.00 p.m. on the same day and the FIR was lodged on the next

day i.e. on 17.05.1988. The purpose of raising such a contention is

to show and prove that there was a planned effort on the part of the

complainant or the prosecution to falsely implicate the accused.

Here, such a situation does not exist. We have already noticed that

the complaint (Ex.PA) has been lodged resulting in registration of FIR

(Ex. PU) at 7.30 p.m. on 17.05.1988 which obviously means that the

complainant had reached the police station even prior thereto. The

conduct of the complainant and the witnesses is in line with the

behaviour of a person of common prudence and the facts and

circumstances of the case clearly demonstrate proper exercise of due

diligence on the part of these witnesses. Firstly, the complainant

family got the information of the death of the deceased from a relative

named Subhash Chand (PW-3) and, thereafter, they must have tried

to get the body subjected to the postmortem and have the same

                                  32
released for performing the last rites.    The incident occurred on

16.05.1988 and the FIR was registered on 17.05.1988, therefore,

there was no abnormal or inordinate delay in lodging the FIR in the

facts of this case. Even if we presume the delay, it is not of such a

nature that would entail any benefit to the accused. Thus, in our

view, there is no inordinate or unexplained delay in lodging the FIR.

32.    Having found no infirmity in the concurrent judgments of the

learned Sessions Judge and the High Court, we see no reason to

interfere in these judgments in law or on facts. Thus, we sustain the

conviction of the accused.

33.   Coming to the question of quantum of punishment, there are

few factors of which we must take note of. It is not even the case of

the prosecution that at the time of occurrence, the accused-appellant

was present at home and he failed to protect or save the deceased

from burning which caused her death. Secondly, the marriage itself

has survived for a short period of nearly one and a half year.     The

cruelty and harassment to the deceased was stated to be caused by

Lajwanti, the mother in law of the deceased and Mukesh, the brother

in law of the deceased. As already noticed, Lajwanti and Mukesh

                                  33
have been acquitted by the High Court for total lack of evidence.

Neither the State nor the complainant has preferred an appeal

against judgment of acquittal. The accused is a young person of 48

years. Keeping in view the facts and circumstances of the case and

in exercise of powers under Article 142 of the Constitution of India to

do complete justice, we are of the considered view that ends of

justice would be met by awarding him the minimum sentence

provided in law, i.e. 7 years of rigorous imprisonment. Resultantly,

the appeal is partially accepted and the accused-appellant is awarded

sentence of 7 years rigorous imprisonment for an offence under

Section 304-B of the Code.

34.   The appeal is disposed off in the above terms.

35.   The accused is on bail.      His bail bonds and surety stand

discharged.   He be taken into custody to undergo the                remaining

period of his sentence.

                                            .........................................J.
                                                   [ DR. B.S. CHAUHAN ]

                                  34
                    .........................................J.
                       [ SWATANTER KUMAR]

New Delhi
July 8, 2010

               35

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