KANS RAJ VS STATE OF PUNJAB

CASE NO.:
Appeal (crl.) 688-90 of 1993
PETITIONER:
KANS RAJ
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT: 26/04/2000
BENCH:
G.B. Pattanaik, R.P. Sethi, & Shivaraj V. Patil.
JUDGMENT:
SETHI,J.
L…I…T…….T…….T…….T…….T…….T…….T..J
Sunita Kumari married on 9th July, 1985 was found dead
on 23rd October, 1988 at the residence of her in-laws at
Batala in Punjab. The death was found to have occurred not
under the ordinary circumstances but was the result of the
asphyxia. On post-mortem it was found that the deceased had
injuries on her person including the ligature mark 20 cm x 2
cm on the front, right and left side of neck, reddish brown
in colour starting from left side of neck, 2 cm below the
left angle of jaw passing just above the thyroid cartil-age
and going upto a point 2 cm below the right angle of jaw.
The parents of the deceased were allegedly not informed
about her death. It was a shocking occasion for Ram Kishan,
PW5 when he came to deliver some customary presents to her
sister on the occasion of Karva Chauth, a fast observed by
married women for the safety and long life of their
husbands, when he found the dead body of his sister Sunita
lying at the entrance room and the respondents were making
preparations for her cremation. Noticing ligature marks on
the neck of her sister, Ram Kishan PW5 telephonically
informed his parents about the death and himself went to the
police station to lodge a report Exh.PF. On the basis of
the statement of PW5 a case under Section 306 IPC was
registered against the respondents. After investigation the
prosecution presented the charge-sheet against Rakesh Kumar,
husband of the deceased and Ram Piari, the mother-in-law of
the deceased. Ramesh Kumar, brother-in-law and Bharti,
sister-in-law of the deceased were originally shown in
Column No.2 of the report under Section 173 of the Code of
Criminal Procedure. After recording some evidence, Ramesh
Kumar and Bharti were also summoned as accused. The
appellant, the father of the deceased, filed a separate
complaint under Section 302 and 304B of the Indian Penal
Code against all the respondents. The criminal case filed
by the appellant was also committed to the Sessions Court
and both the appellant’s complaint and the police case were
heard and decided together by the Additional Sessions Judge,
Gurdaspur who, vide his judgment dated 28th August, 1990,
convicted the respondents under Section 304B IPC and
sentenced each of them to undergo 10 year Rigorous
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Imprisonment. He also found them guilty for the commission
of offence under Section 306 and sentenced them to undergo
rigorous imprisonment for 7 years besides paying a fine of
Rs.250/- each. The respondents were also found guilty for
the commission of offence punishable under Section 498A IPC
and were sentenced to undergo rigorous imprisonment for a
period of two years and to pay a fine of Rs.250/- each. All
these sentences were to run concurrently. The respondents
herein filed an appeal in the High Court against the
judgment of conviction and sentence passed against them by
the Trial Court and the appellant, father of the deceased,
filed a revision petition against the said judgment praying
for enhancement of the sentence to imprisonment for life on
proof of the charge under Section 304B of the IPC. Both the
appeals and the revision were heard together by a learned
Single Judge of the High Court who vide her judgment
impugned in this appeal acquitted the respondents of all the
charges. The revision petition filed by the father of the
deceased was dismissed holding that the same had no merits.
Ms.Anita Pandey, learned Advocate appearing for the
appellant has vehemently argued that the judgment of the
High Court suffers from legal infirmities which requires to
be set aside and the respondents are liable to be convicted
and sentenced for the commission of heinous offence of dowry
death, a social evil allegedly commonly prevalent in the
society. She has contended that the judgment of the High
Court is based upon conjectures and hypothesis which are
devoid of any legal sanction. The High Court is alleged to
have not properly appreciated the evidence led by the
prosecution in the case which, according to the learned
counsel, had proved beyond doubt that the respondents were
guilty of the commission of the offences with which they
were charged and convicted by the Trial Court. Relying upon
the provisions of Section 113B of the Evidence Act, the
learned counsel has contended that as the death of Ms.Sunita
Kumari had occurred within 7 years of marriage and the
prosecution had established her harassment on account of
demand of dowry, a legal presumption was to be drawn against
the respondents for holding them guilty and sentencing them
for the offences committed. Supporting the case of the
respondents Shri U.R. Lalit, Senior Advocate appearing for@@
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them has submitted that there being no direct evidence@@
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regarding the cause of the death or circumstances leading to
death, particularly in the absence of demand of dowry soon
before the death, none of the respondents could be held
guilty for the offences with which they were charged,
convicted and sentenced by the Trial Court. According to
the learned counsel the statements made by the deceased
before her death were not admissible in evidence even under
Section 32(1) of the Evidence Act and in the absence of
demand of dowry immediately before the alleged occurrence no
inference or presumption could be drawn against the
respondents.
We have heard the learned counsel for the parties at
length and perused the record. We have also minutely
examined the original record of the Trial Court and
critically analysed the statements of the witnesses produced
by the prosecution.
We agree with the learned counsel for the respondents 3
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to 5 that his clients, namely, Ramesh Kumar, brother of the
husband, Ram Pyari, mother of the husband and Bharti
sister-in-law of the husband-accused cannot be alleged to be
involved in the commission of the crime and were rightly
acquitted by the High Court. There is no evidence produced
by the appellant worth the name against the aforesaid
respondents. Even PW Nos.5 and 6 have not brought on record
any incriminating circumstance attributable to the aforesaid
accused which could be made the basis for their conviction.
Ram Kishan, PW5 in his deposition before the Court had
stated that “after the marriage Rakesh Kumar, accused raised
a demand of Rs.15,000/- for a scooter and refrigerator. We
fulfilled that demand by giving Rs.20,000/- to him for
scooter and refrigerator….. Rakesh Kumar used to threaten
Sunita that she would be done to death because of having
inadequate dowry. On 21st September, 1988 Sunita had come
to my younger brother Tarsem in connection with a ceremony
concerning his son. She also visited us as the house of
Tarsem Kumar is close to our house. She stayed with us for
the night. We gave her customary present i.e. clothes etc.
and cash amount of Rs.500/-. She apprehended danger to her
life in the house of her in-laws and was not willing to go
there”. He has not referred to any demand of dowry or
harassment by the respondents except Rakesh Kumar. Tarsem
Kumar, the other brother of the deceased at whose residence
she had gone on 21st September, 1988 has not been produced
as a witness in the case. Kans Raj PW6, the father of the
deceased stated before the Trial Court that Sunit Kumari had
told him that she was being taunted by her mother-in-law Ram
Piari, accused Ramesh Chander and his wife Bharti accused
besides her husband Rakesh Kumar. The details of the
alleged taunting have not been spelt out. The only thing
stated is that the accused used to tell the deceased that
she being the daughter of BJP leader, who used to boast
about his financial position had brought inadequate dowry.
He further stated that various sums of money and the colour
TV was given to Rakesh Kumar on his demand. Amar Nath and
Janak Raj, President and General Secretary of Mahajan Sabha
respecively and one Kundan Lal Gaba were taken by him to the
residence of the accused persons. The deceased was alleged
to have been taunted again in presence of the aforesaid
witnesses. However, none of the aforesaid witnesses
supported the case of the prosecution. In the light of the
evidence in the case we find substance in the submission of
the learned counsel for the defence that respondents 3 to 5
were roped in the case only on the ground of being close
relations of respondent No.2, the husband of the deceased.
For the fault of the husband, the in-laws or the other
relations cannot, in all cases, be held to be involved in
the demand of dowry. In cases where such accusations are
made, the overt acts attributed to persons other than
husband are required to be proved beyond reasonable doubt.
By mere conjectures and implications such relations cannot
be held guilty for the offence relating to dowry deaths. A
tendency has, however, developed for roping in all relations
of the in-laws of the deceased wives in the matters of dowry
deaths which, if not discouraged, is likely to affect the
case of the prosecution even against the real culprits. In
their over enthusiasm and anxiety to seek conviction for
maximum people, the parents of the deceased have been found
to be making efforts for involving other relations which
ultimately weaken the case of the prosecution even against
the real accused as appears to have happened in the instant
case.
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We, however, find that there is reliable legal and
cogent evidence on record to connect Rakesh Kumar,
respondent No.2 with the commission of the crime. There is
evidence showing that immediately after his marriage with
the deceased the respondent-husband started harassing her
for the demand of dowry. We do not find substance in the
submission of the learned defence counsel that the
statements made before her death by the deceased were not
admissible in evidence under Section 32(1) of the Evidence
Act and even if such statements were admissible, there does
not allegedly exist any circumstance which could be shown to
prove that the deceased was subjected to cruelty or
harassment by her husband for or in connection with any
demand of dowry soon before her death. It is contended that
the words “soon before her death” appearing in Section 304B
has a relation of time between the demand or harassment and
the date of actual death. It is contended that the demand
and harassment must be proximately close for the purposes of
drawing inference against the accused persons.
The offence of “dowry death” was incorporated in the
Indian Penal Code and corresponding amendment made in the@@
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Evidence Act by way of insertion of Section 113B vide Act@@
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No.43 of 1986. In fact the Dowry Prohibition Act, 1961
being Act No.28 of 1961 was enacted on 20th May, 1961 with
an object to prohibit to giving or taking the dowry. The
insertion of Section 304B of the Indian Penal Code and
Section 113B in the Evidence Act besides other circumstances
was also referable to the 91st Report dated 10th August,
1983 of the Law Commission. In the Statement of Objects and
Reasons to Act No.28 of 1961 it was stated:
“The object of this Bill is to prohibit the evil
practice of giving and taking of dowry. This question has
been engaging the attention of the Government for some time
past, and one of the methods by which this problem, which is
essentially a social one, was sought to be tackled was by
the conferment of improved property rights on women by the
Hindu Succession Act, 1956. It is, however, felt that a law
which makes the practice punishable and at the same time
enures that any dowry, if given does enure for the benefit
of the wife will go a long way to educating public opinion
and to the eradication of this evil. There has also been a
persistent demand for such a law both in and outside
Parliament, Hence, the present Bill.”
Realising the ever increasing and disturbing proportions
of the evil of dowry system, the Act was again amended by
Act No.63 of 1984 taking note of the observations of the
Committee on Status of Women in India and with a view to
making of thorough and compulsory investigations into cases
of dowry deaths and stepping up anti-dowry publicity, the
Government referred the whole matter for consideration by a
Joint Committee of both the Houses of Parliament. The
Committee went into the whole matter in great depth in its
proceedings and after noting the observations of
Pt.Jawaharlal Nehru, recommended to examine the working of
Act No.28 of 1961 and after considering the comments
received on the Report from the State Governments, Union
Territories, Administrations and different administrative
Ministries of the Union concerned with the matter, decided
to modify the original definition of “dowry” with
consequential amendment in the Act. Again finding that the
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Dowry Prohibition Act, 1961 has not been so deterrent, as it
was expected to be, the Parliament made amendments in the
Act vide Act No.43 of 1986. In the Statement of Objects and
Reasons of the said Act it was stated: “The Dowry
Prohibition Act, 1961 was recently amended by the Dowry
Prohibition (Amendment) Act 1984 to give effect to certain
recommendations of the Joint Committee of the House of
Parliament to examine the question of the working of the
Dowry Prohibition Act, 1961 and to make the provisions of
the Act more stringent and effective. Although the Dowry
Prohibition (Amendment) Act, 1984 was an improvement on the
existing legislation, opinions have been expressed by
representatives from women’s voluntary organisations and
others to the effect that the amendments made are still
inadequate and the Act needs to be further amended.
2. It is, therefore, proposed to further amend the
Dowry Prohibition Act, 1961 to make provisions therein
further stringent and effective. The salient features of
the Bill are:
(a) The minimum punishment for taking or abetting the
taking of dowry under section 3 of the Act has been raised
to five years and a fine of rupees fifteen thousand.
(b) The burden of proving that there was no demand for
dowry will be on the person who takes or abets the taking of
dowry.
(c) The statement made by the person aggrieved by the
offence shall not subject him to prosecution under the Act.
(d) Any advertisement in any newspaper, periodical
journal or any other media by any person offering any share
in his property or any money in consideration of the
marriage of his son or daughter is proposed to be banned and
the person giving such advertisement and the printer or
publisher of such advertisement will be liable for
punishment with imprisonment of six months to five years or
with fine up to fifteen thousand rupees.
(e) Offences under the Act are proposed to be made
non-bailable.
(f) Provisions has also been made for appointment of
Dowry Prohibition Officers by the State Governments for the
effective implementation of the Act. The Dowry Prohibition
Officers will be assisted by the Advisory Boards consisting
of not more than five social welfare workers (out of whom at
least two shall be women).
(g) A new offence of “dowry death” is proposed to be
included in the Indian Penal Code and the necessary
consequential amendments in the Code of Criminal Procedure,
1973 and in the Indian Evidence Act, 1872 have also been
proposed.
3. The Bill seeks to achieve the aforesaid objects.”
The law as it exists now provides that where the death
of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within 7 years of
marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any
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relative for or in connection with any demand of dowry such
death shall be punishable under Section 304B. In order to
seek a conviction against a person for the offence of dowry
death, the prosecution is obliged to prove that:
(a) the death of a woman was caused by burns or bodily
injury or had occurred otherwise than under normal
circumstances;
(b) such death should have occurred within 7 years of
her marriage;
(c) the deceased was subjected to cruelty or harassment
by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in
connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should
have been subjected to soon before her death. As and when
the aforesaid circumstances are established, a presumption
of dowry death shall be drawn against the accused under
Section 113B of the Evidence Act. It has to be kept in mind
that presumption under Section 113B is a presumption of law.
We do not agree with the submissions made by Mr.Lalit,
learned Senior Counsel for the accused that the statement
made by the deceased to her relations before her death were
not admissible in evidence on account of intervening period
between the date of making the statement and her death.
Section 32 of the Evidence Act is admittedly an
exception to the general rule of exclusion to the hearsay
evidence and the statements of a person, written or verbal,
of relevant facts, after his death are admissible in
evidence if they refer to the cause of his death or to any
circumstances of the transaction which resulted in his
death. To attract the provisions of Section 32, for the
purposes of admissibility of the statement of a deceased the
prosecution is required to prove that the statement was made
by a person who is dead or who cannot be found or whose
attendance cannot be procured without an amount of delay or
expense or he is incapable of giving evidence and that such
statement had been made under any of the circumstances
specified in sub-sections (1) to (8) of Section 32 of the
Act. Section 32 does not require that the statement sought
to be admitted in evidence should have been made in imminent
expectation of death. The words “as to any of the
circumstances of the transaction which resulted in his
death” appearing in Section 32 must have some proximate
relations to the actual occurrence. In other words the
statement of the deceased relating to the cause of death or
the circumstances of the transaction which resulted in his
death must be sufficiently or closely connected with the
actual transaction. To make such statement as substantive
evidence, the person or the agency relying upon it is under
a legal obligation to prove the making of such statement as
a fact. If it is in writing, the scribe must be produced in
the Court and if it is verbal, it should be proved by
examining the person who heard the deceased making the
statement. The phrase “circumstances of the transaction”
were considered and explained in Pakala Narayana Swami v.
Emperor [AIR 1939 PC 47]:
“The circumstances must be circumstances of the
transaction: general expressions indicating fear or
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suspicion whether of a particular individual or otherwise
and not directly related to the occasion of the death will
not be admissible. But statements made by the deceased that
he was proceeding to the spot where he was in fact killed,
or as to his reasons for so proceeding, or that he was going
to meet a particular persons, or that he had been invited by
such person to meet him would each of them be circumstances
of the transaction, and would be so whether the person was
unknown, or was not the person accused. Such a statement
might indeed be exculpatory of the person accused.
“Circumstances of the transaction” is a phrase no doubt that
conveys some limitations. It is not as broad as the
analogous use in “circumstantial evidence” which includes
evidence of all relevant facts. It is on the other hand
narrower than “res gestae”. Circumstances must have some
proximate relation to the actual occurrence: though, as for
instance, in a case of prolonged poisoning they may be
related to dates at a considerable distance from the date of
the actual fatal dose. It will be observed that “the
circumstances” are of the transaction which resulted in the
death of the declarant. It is not necessary that there
should be a known transaction other than that the death of
the declarant has ultimately been caused, for the condition
of the admissibility of the evidence is that “the cause of
(the declarant’s) death comes into question”.
The death referred to in Section 32(1) of the Evidence
Act includes suicidal besides homicidal death. Fazal Ali,
J. in Sharad Birdhichand Sarda v. State of Maharashtra
[1984 (4) SCC 116] after referring to the decisions of this
Court in Hanumant v. State of Madhya Pradesh [1952 SCR
1091], Dharambir Singh vs. State of Punjab[Criminal Appeal
No.98 of 1958, decided on November 4, 1958], Ratan Gond v.
State of Bihar [1959 SCR 1336], Pakala Narayana Swami
(supra), Shiv Kumar v. State of Uttar Pradesh [Criminal
Appeal No.55 of 1966, decided on July 29, 1966], Mahnohar
Lal v. State of Punjab[1981 Cri.LJ 1373 (P&H)] and other
cases held:
“We fully agree with the above observations made by the
learned Judges. In Protima Dutta v. State [1977 (81) Cal
WN 713] while relying on Hanumant Case the Calcutta High
Court has clearly pointed out the nature and limits of the
doctrine of proximity and has observed that in some cases
where there is a sustained cruelty, the proximate may extend
even to a period of three years. In this connection, the
high Court observed thus:
The ’transaction’ in this case is systematic illtreatment
for years since the marriage of Sumana and
incitement to end her life. Circumstances of the
transaction include evidence of cruelty which produces a
state of mind favourable to suicide. Although that would
not by itself be sufficient unless there was evidence of
incitement to end her life it would be relevant as evidence.
This observation taken as a whole would, in my view,
imply that the time factor is not always a criterion in
determining whether the piece of evidence is properly
included within ’circumstances of transaction’…’In that
case the allegation was that there was sustained cruelty
extending over a period of three years interspersed with
exhortation to the victim to end her life’. His Lordship
further observed and held that the evidence of cruelty was
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one continuous chain, several links of which were touched up
by the exhortations to die. ’Thus evidence of cruelty, illtreatment
and exhortation to end her life adduced in the
case must be held admissible, together with the statement of
Nilima (who committed suicide) in that regard which related
to circumstances terminating in suicide’.
Similarly, in Onkar v. State of Madhya Pradesh [1974
Cri.LJ 1200] while following the decision of the Privy
Council in Pakala Narayana Swami case, the Madhya Pradesh
High Court has explained the nature of the circumstances
contemplated by Section 32 of the Evidence Act thus:
The circumstances must have some proximate relation to
the actual occurrence and they can only include the acts
done when and where the death was caused….Thus a statement
merely suggesting motive for a crime cannot be admitted in
evidence unless it is so intimately connected with the
transaction itself as to be a circumstance of the
transaction. In the instant case evidence has been led
about statements made by the deceased long before this
incident which may suggest motive for the crime.
In Allijan Munshi v. State [AIR 1960 Bom 290] the
Bombay High Court has taken a similar view.
In Chinnavalayan v. State of Madras [1959 Mad LJ 246]
two eminent Judges of the Madras High Court while dealing
with the connotation of the word ’circumstances’ observed
thus:
The special circumstances permitted to transgress the
time factor is, for example, a case of prolonged poisoning,
while the special circumstances permitted to transgress the
distance factor is, for example, a case of decoying with
intent to murder. This is because the natural meaning of
the words, according to their Lordships, do not convey any
of the limitations such as (1) that the statement must be
made after the transaction has taken place, (2) that the
person making it must be at any rate near death, (3) that
the circumstances can only include acts done when and where
the death was caused. But the circumstances must be
circumstances of the transaction and they must have some
proximate relation to the actual occurrence.
Before closing this chapter we might state that the
Indian law on the question of the nature and scope of dying
declaration has made a distinct departure from the English
Law where only the statements which directly relate to the
cause of death are admissible. The second part of clause
(1) of Section 32, viz., “the circumstances of the
transaction which resulted in his death, in cases in which
the cause of that person’s death comes into question” is not
to be found in the English Law. This distinction has been
clearly pointed out in the case of Rajindra Kumar v. State
[AIR 1960 Punj 310] where the following observations were
made:
Clause (1) of Section 32 of the Indian Evidence Act
provides that statements, written or verbal, of relevant
facts made by a person who is dead,….are themselves
relevant facts when the statement is made by a person as to
the cause of his death, or as to any of the circumstances of
the transaction which resulted in his death in cases in
which the cause of that person’s death comes into
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question… It is well settled by now that there is
difference between the Indian Rule and the English Rule with
regard to the necessity of the declaration having been made
under expectation of death.
In the English Law the declaration should have been made
under the sense of impending death whereas under the Indian
Law it is not necessary for the admissibility of a dying
declaration that the deceased at the time of making it
should have been under the expectation of death.
Thus, from a review of the authorities mentioned above
and the clear language of Section 32(1) of the Evidence Act,
the following propositions emerge:
(1) Section 32 is an exception of the rule of hearsay
and makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect, as
indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to
widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and- dried
formula of universal application so as to be confined in a
straitjacket. Distance of time would depend or vary with
the circumstances of each case. For instance, where death
is a logical culmination of a continuous drama long in
process and is, as it were, a finale of the story, the
statement regarding each step directly connected with the
end of the drama would be admissible because the entire
statement would have to be read as an organic whole and not
torn from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest
that all these statements come to light only after the death
of the deceased who speaks from death. For instance, where
the death takes place within a very short time of the
marriage or the distance of time is not spread over more
than 3- 4 months the statement may be admissible under
Section 32.
(3) The second part of clause (1) of Section 32 is yet
another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given
an opportunity of being cross-examined by the accused, would
be valueless because the place of cross-examination is taken
by the solemnity and sanctity of oath for the simple reason
that a person on the verge of death is not likely to make a
false statement unless there is strong evidence to show that
the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not
speak of homicide alone but includes suicide also, hence all
the circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of
suicide.
(5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale
story, the said statement would clearly fall within the four
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corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant.”
In Ratan Singh vs. State of Himachal Pradesh [1997 (4)
SCC 161] this Court held that the expression “circumstances
of transaction which resulted in his death” mean that there
need not necessarily be a direct nexus between the
circumstances and death. Even distant circumstance can
become admissible if it has nexus with the transaction which
resulted in death. Relying upon Sharad Birdhichand Sarda’s
case (supra) the Court held that:
“It is enough if the words spoken by the deceased have
reference to any circumstance which has connection with any
of the transactions which ended up in the death of the
deceased. Such statement would also fall within the purview
of Section 32(1) of the Evidence Act. In other words, it is
not necessary that such circumstance should be proximate,
for, even distant circumstances can also become admissible
under the sub-section, provided it has nexus with the
transaction which resulted in the death.”
In view of this legal position statements of Ms.Sunita
made to her parents, brother and other acquaintances, before@@
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her death are admissible in evidence under Section 32 of the@@
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Evidence Act.
It is further contended on behalf of the respondents
that the statements of the deceased referred to the
instances could not be termed to be cruelty or harassment by
the husband soon before her death. “Soon before” is a
relative term which is required to be considered under
specific circumstances of each case and no straight jacket
formula can be laid down by fixing any time limit. This
expression is pregnant with the idea of proximity test. The
term “soon before” is not synonymous with the term
“immediately before” and is opposite of the expression “soon
after” as used and understood in Section 114, Illustration
(a) of the Evidence Act. These words would imply that the
interval should not be too long between the time of making
the statement and the death. It contemplates the reasonable
time which, as earlier noticed, has to be understood and
determined under the peculiar circumstances of each case.
In relation to dowry deaths, the circumstances showing the
existence of cruelty or harassment to the deceased are not
restricted to a particular instance but normally refer to a
course of conduct. Such conduct may be spread over a period
of time. If the cruelty or harassment or demand for dowry
is shown to have persisted, it shall be deemed to be ’soon
before death’ if any other intervening circumstance showing
the non existence of such treatment is not brought on
record, before the alleged such treatment and the date of
death. It does not, however, mean that such time can be
stretched to any period. Proximate and live link between
the effect of cruelty based on dowry demand and the
consequential death is required to be proved by the
prosecution. The demand of dowry, cruelty or harassment
based upon such demand and the date of death should not be
too remote in time which, under the circumstances, be
treated as having become stale enough.. No presumption
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under Section 113B of the Evidence Act would be drawn
against the accused if it is shown that after the alleged
demand, cruelty or harassment the dispute stood resolved and
there was no evidence of cruelty, and harassment thereafter.
Mere lapse of some time by itself would not provide to an
accused a defence, if the course of conduct relating to
cruelty or harassment in connection with the dowry demand is
shown to have existed earlier in time not too late and not
too stale before the date of death of the woman. The
reliance placed by the learned counsel for the respondents
on Sham Lal v. State of Haryana [1997 (9) SCC 579] is of no
help to them, as in that case the evidence was brought on
record to show that attempt had been made to patch up
between the two sides for which Panchayat was held in which
it was resolved that the deceased would go back to the
nuptial home pursuant to which she was taken by the husband
to his house. Such a Panchayat was shown to have held about
10 to 15 days prior to the occurrence of the case. There
was nothing on record to show that the deceased was either
treated with cruelty or harassed with the demand of dowry
during the period between her having taken to the nuptial
home and her tragic end. Such is not the position in the
instant case as the continuous harassment to the deceased is
never shown to have settled or resolved. Mr.Lalit, learned
Senior Counsel has further contended that as the prosecution@@
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had failed to prove the cruelty or harassment for or in@@
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connection with the demand of dowry, the High Court was
justified in acquitting the accused persons including Rakesh
Kumar, respondent No.2. He also pointed out to some alleged
contradictions in the statements of PWs 5 and 6. Having
critically examined the statements of witnesses, we are of
the opinion that the prosecution has proved the persistent
demand of dowry and continuous cruelty and harassment to the
deceased by her husband. The contradictions pointed out are
no major contradictions which could be made the basis of
impeaching the credibility of the witnesses. Reference to
different sums of money demanded by Rakesh Kumar in the
statements of PWs5 and 6 cannot, in any way, be termed to be
contradictory to each other. At the most some of the
amounts referred by one witness and not mentioned by the
other can be termed to be an omission which in no case
amounts to a major contradiction entitling the respondent
No.2 of any benefit. Ram Kishan, PW5 has categorically
stated that Rakesh Kumar accused had raised a demand of
Rs.15,000/- for scooter and refrigerator immediately after
the marriage which was fulfilled by giving him a sum of
Rs.20,000/-. His demand of a colour TV was also fulfilled.
The continuous harassment connected with the demand of dowry
is shown to be in existence till 21st September, 1988 when
the deceased is reported to have come to her brother’s house
and met her parents. Thereafter she is not shown to have
met anyone and no intervening circumstances showing the
resolvement or settlement regarding demands of dowry is
brought on record. She was admittedly found dead on 23rd
October, 1988. Kans Raj, PW6 has stated that a colour TV,
clothes and jewellery were given to the accused husband as
dowry. He has deposed that his daughter had told him that
the accused wanted her to bring further cash amount. The
deceased, on persistent demands of the accused, had
withdrawn the total sum of Rs.26,000/- from the accounts
which was opened by the father in her name. He was also
given a new Colour TV in lieu of the TV set given to him at
the time of marriage as the same had allegedly gone out of
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order. It is contended that as there was no Karva Chauth on
23rd October, 1988, the whole of the statement of PW6 should
not be believed because he is alleged to have stated that
his son had gone to the house of accused on 23rd October,
1988 which was the day of Karva Chauth. The submission is
based upon the wrong assumption of fact. It appears that
the statement of PW6 has wrongly been translated in English
wherein it is mentioned: “On 23.10.1988 on the day of Karva
Chauth my son Ram kishan went to the house of the accused
with customary presents. He telephoned me to inform that
Sunita Kumari has died in the house of the accused. I and
my wife went to Batala. The police came to the spot and I
was examined inquest proceedings also. My separate
statement was also recorded.”
We have examined the original record and found that the
statement of the witness which were recorded in Punjabi/
Gurmukhi script states that Ram Kishan had gone to the
residence of the accused at the occasion of Karva Chauth
(Mauke Te) and not on the date of Karva Chauth. Relying
upon the evidence in the case, the Trial Court had rightly
concluded: “The sum and substance of the above discussion
is that the prosecution has adduced best available evidence
to prove the charge against the accused. The statement of
Kans Raj (PW6) and Ram Kishan (PW5) inspire confidence. It
is not disputed that Sunita Kumari committed suicide about
3-1/2 years after the marriage. The accused have not given
any satisfactory account of even high probability as to how
Sunit Kumari died. There is a presumption under Section
113A of the Evidence Act that the suicide has been abetted
by the husband or other relative of the husband of the
deceased. The accused have not been able to rebut that
presumption. It is also proved that Sunit Kumari was
treated with cruelty on account of dowry.”
It is established that the death of Sunita Kumari by
suicide had occurred within 7 years of her marriage and such
death cannot be stated to have occurred in normal
circumstances. The term “normal circumstances” apparently
means not the natural death. This Court in Smt.Shanti &
Anr.v. State of Haryana [AIR 1991 SC 1226] held that:
“….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 the death of the woman she was
subjected to cruelty or harassment by her husband or his
relations for or in connection with any demand for dowry,
such death shall be called ’dowry death’ and the husband or
relatives shall be deemed to have caused her death and shall
be punishable with imprisonment for a minimum of seven years
but which may extend to life imprisonment.”
In other words the expression ’otherwise than under
normal circumstances’ would mean the death not in usual
course but apparently under suspicious circumstances, if not
caused by burns or bodily injury.
The High Court appears to have adopted a casual approach
in dealing with a specified heinous crime considered to be a
social crime. Relying upon minor discrepancies and some
omissions, the court has wrongly acquitted the
accused-husband, namely, Rakesh Kumar. The charges framed
against respondent No.2 had been proved by the prosecution
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beyond reasonable doubt and there was no justification for
interferring with the conviction recorded and sentence
passed against him by the Trial Court.
Under the circumstances the present appeal is partly
allowed by setting aside the judgment of the High Court in
so far as it relates to respondent No.2, namely, Rakesh
Kumar, the husband of the deceased and confirmed so far as
it relates to other accused persons. The judgment of the
Trial Court regarding conviction of Shri Rakesh Kumar under
Section 304B is upheld but the sentence is reduced to seven
years Rigorous Imprisonment. His conviction under Section
306 is also upheld but his sentence is reduced to five years
besides paying a fine as imposed by the Trial Court. In
default of payment of fine the respondent No.2 shall suffer
Rigorous Imprisonment for one month more. Confirming his
conviction under Section 498A IPC, the respondent No.2 is
sentenced to undergo Rigorous Imprisonment for two years and
to pay a fine of Rs.250/-, in default of payment of fine he
will further undergo Rigorous Imprisonment for one month.
All the sentences are directed to run concurrently. The
bail bonds of respondent No.2, who is on bail, are cancelled
and he is directed to surrender to serve out the sentence
passed on him.