Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 799 of 2011, Judgment Date: Jan 14, 2015

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.799 OF 2011


RAJINDER KUMAR                                                 ... APPELLANT

                                   VERSUS


STATE OF HARYANA                                              ... RESPONDENT


                               J U D G M E N T



SUDHANSU JYOTI MUKHOPADHAYA,J



      This appeal is directed against  the  judgment  dated  1st  September,
2010 passed by the High Court of Punjab & Haryana,  Chandigarh  in  Criminal
Appeal No.238-SB of 2002 alongwith another case.  By the impugned  judgment,
the High Court dismissed the appeal preferred by the  accused-appellant  and
affirmed the order of conviction and sentence passed by the Trial Court  u/s
304B of Indian Penal Code ('IPC' for short).

2.    The case of the prosecution as  noticed  by  the  Trial  Court  is  as
follows:

      Raj Rani, youngest sister of complainant Ganpat Rai was  married  with
accused Rajinder Kumar on 10th May, 1996 as per Hindu rites.   At  the  time
of marriage, the complainant had given handsome dowry and  spent  a  sum  of
Rs.2,25,000/-.  When Raj Rani went to her in-laws second time, her  husband-
Rajinder, mother-in-law Darshna Devi, sisters-in-law Murti  and  Chirya  and
brother-in-law  Binder  started  taunting  and  harassing  her.  On  getting
information, complainant Ganpat Rai  alongwith  his  brothers  Ghansham  and
Hari Chand came to village Dharsul and advised the  accused  not  to  harass
Raj Rani. On this, accused persons stated that  they  will  behave  in  this
very manner and if they  want  to  take  away  Raj  Rani,  they  should  get
divorce. After that also, they continued to harass  Raj  Rani  in  the  same
manner.  Again complainant Ganpat Rai along with Balak Ram went to  the  in-
laws of Raj Rani and on 21st October, 1996 on the festival  of  Dushera  Raj
Rani was brought to complainant's house. At that time, accused-Rajinder  and
his family members asked Raj Rani that she should  bring  Rs.20,000/-  while
coming back, otherwise it will not be good.  On 28th  October,  1996  Chanan
Ram uncle of Rajinder and Binder came  to  village  Chatha  Nanhera  at  the
house of the complainant along with  customary  gifts  on  the  festival  of
Karwa Chauth.  He stayed there for two days.  On  30th  October,  1996  i.e.
one day before the occurrence, Raj Rani was brought back to her  matrimonial
house at Dharsul. Hari Chand brother of the  complainant  and  Gurmel  Singh
also came along with her. Raj Rani told Hari Chand that her husband and  in-
laws had demanded Rs.20,000/- and since the same has  not  been  paid,  they
(accused) will kill her once Hari Chand and Gurmel Singh  leave  the   place
On  this  Hari  Chand  assured  her  that  they will  come  back  after  2/3
days and pay the money and  returned  to  the  village  of  the  complainant
alongwith Gurmel Singh. On 31st October, 1996 at about 6.00  AM,  Tek  Chand
son of Krishan,  resident  of  village  Kulan  came  to  the  house  of  the
complainant  and  told  that  Raj  Rani  has  been  murdered  on  the  night
intervening 30/31st October, 1996  by  Rajinder,  Binder  her  mother-in-law
Darshna and sisters-in-law Murti and Chirya  on  account  of  bringing  less
dowry. On this information, complainant, his brother Hari Chand and  Sukhpal
Bansal reached village Dharsul Kalan and saw the dead body of Raj  Rani  was
lying on a cot in Chubara.

       On  the  statement  of  complainant  Ganpat  Rai  FIR  (Ex.PA/1)  was
registered and investigation was started by Chander  Singh,  Sub  Inspector.
Dr. P.L. Verma (PW-6) conducted the post mortem. After receiving  report  of
the Chemical Examiner the cause of death was shown to be  poisoning  due  to
consumption of aluminium phosphide.

      The appellant was charge-sheeted alongwith his mother and sisters  for
the offence u/s 498A and 304B IPC to  which  they  pleaded  not  guilty  and
claimed trial. The prosecution produced 14 witnesses  including  Ganpat  Rai
(PW-7) complainant and Harichand (PW-13). Other witnesses are Ishwar  Singh-
ASI(PW-1), Mahipal-Constable  (PW-2),  Girish  Kumar-Draftsman(PW-3),  Wazir
Singh-SI(PW-4),  Jai  Prakash-Constable(PW-5),  Dr.  P.L.   Verma-   Medical
Officer(PW-6), PW-8 to 9 and 11-Constables; Rajender  Kumar-Photographer(PW-
10), Jai Chand Shastri who performed marriage ceremonies  of  deceased  with
accused-appellant (PW-12) and Chander  Singh-SI(PW-14).  On  behalf  of  the
defence three witnesses i.e. Dr. Jasbeer  Singh-(DW-1),  Santosh-(DW-2)  and
Chajju Ram-(DW-3) were produced.

      The Trial Court by its judgment dated 22nd January, 2002 convicted the
appellant u/s 498A and  304B  IPC  and  acquitted  other  accused.  For  the
offence u/s 304B  IPC  the  appellant  was  sentenced  to  undergo  rigorous
imprisonment for seven years and for the offence u/s 498A he  was  sentenced
to undergo rigorous  imprisonment  for  two  years  along  with  a  fine  of
Rs.5,000/-.  Both the sentences awarded were ordered to run concurrently.

3.    On appeal the High Court by impugned judgment partly allowed the  same
and the conviction and sentence of the appellant u/s 498A IPC was set  aside
while upholding conviction and sentence u/s 304B IPC.

4.    The main argument of the appellant is that the death  of  deceased-Raj
Rani is a natural death and that the entire evidence on record believes  the
version of death by Aluminium  Phosphide (AIP) Poisoning.   To  support  his
case it was pointed out that  Dr.  P.L.  Verma  (PW-6)  who  conducted  post
mortem stated in his testimony that if the report of  the  Forensic  Science
Laboratory regarding the presence of poison would have  been  negative  then
the Board would have concluded it to be a case  of  natural  death.  It  was
submitted that in normal circumstances in a dead  body  there  is  always  a
possibility of presence of poisonous substance like aluminium phosphide  and
therefore no definite conclusion can be derived  at  that  the  deceased-Raj
Rani died  as  a  result  of  poisoning  due  to  consumption  of  aluminium
phosphide.

5.    Further, according to the learned counsel for  the  appellant-accused,
evidence of Ganpat Rai (PW-7), complainant and Harichand  (PW-13)  who  were
the  brothers  of  the  deceased  are  unreliable  as  they  are  interested
witnesses. All other independent witnesses  from  village  have  deposed  in
favour of the appellant, stating that the  deceased  was  never  treated  in
cruel manner nor any demand of dowry was made. An application had also  been
written and signed by more than 20 villagers stating about the innocence  of
the appellant and his family.

6.    In normal circumstances, in the Indian Society  demand  for  dowry  or
harassment for the same takes place within four corners of the house.   Even
the parents or relatives of the girl will not  be  aware  of  these,  unless
they are informed either by the girl herself or demand is made  directly  to
them. The Police Officials  or  others  cannot  depose  anything  about  the
harassment in connection  with  demand  of  dowry  in  the  absence  of  any
complaint  or  statement  made  by  witness  u/s  161  Cr.P.C.  Seldom,  the
villagers-neighbours may come to know  of  the  same.  In  this  background,
statement of family members of the deceased-lady cannot be discarded on  the
ground that  they  are  relatives  and  are  interested  witnesses,  till  a
contradiction is shown in their deposition or cross-examination.

7.    The complainant-Ganpat Rai(PW-7)  brother  of  the  deceased-Raj  Rani
stated that the accused harassed the deceased  since  her  marriage  and  he
always taunted her for bring less number of  sarees  and  inadequate  money.
The accused also had demanded Rs.20,000/-  from  the  deceased.  On  knowing
this, complainant (PW-7) along with his brother went to  the  house  of  the
appellant-accused and tried to persuade  the  appellant  to  stop  harassing
their sister. However, the appellant and his family members  asked  them  to
take away their sister with them. On 21st October, 1996, complainant  (PW-7)
took Raj Rani to his house  at  Chattha  Nanhera.  On  28th  October,  1996,
Chanan Ram, the elder brother of the father of  appellant-Rajinder  came  to
the complainant's house with the customary gifts  of  Karwa  Choth  for  Raj
Rani and stayed there for two days.  On 30th October, 1996, Hari Chand  (PW-
13) younger brother of the complainant (PW-7)  and  Gurmel  Singh  left  Raj
Rani in her matrimonial home. While Hari Chand(PW-13) and Gurmel Singh  were
leaving the house they were told by Raj Rani that since they  had  not  paid
Rs.20,000/- to the accused, he would kill her.  Hari  Chand  told  Raj  Rani
that they would make the payment within two or three days. On 31st  October,
1996, the complainant (PW-7) received information that his sister  had  died
on previous night.  When the complainant (PW-7) went to  the  house  of  the
appellant, he found his sister dead lying on the Chobara.  There  was  froth
coming out of the mouth of the deceased and  a  piece  of  brick  was  lying
there. The police found some broken  bangles  lying  near  the  death  body.
After leaving Hari Chand and Sukhpal Bansal near the dead body  he  reported
the matter to the Police.

8.    Hari  Chand  (PW-13)  has  corroborated  the  statement  made  by  the
complainant (PW-7). No inconsistency is found in their  statements.  Defence
also could not make out anything to disprove the same  during  their  cross-
examinations. From the statements of the complainant (PW-7) and  Hari  Chand
(PW-13), we find that the deceased-Raj Rani had been harassed on account  of
demand of dowry soon before her death.

9.    Dr. P.L. Verma (PW-6) has conducted the post mortem on the  dead  body
of deceased Raj Rani. He deposed that the eyes and  mouth  of  the  deceased
were semi open. After receiving the report  of  the  Chemical  Examiner,  he
stated that the cause of  death  of  deceased  Raj  Rani  was  a  result  of
poisoning due to consumption of aluminium phosphide.  Dr.  P.L.  Verma(PW-6)
and the Chemical Examiner who are experts in the field have not stated  that
the  death  was  in  the  normal  course  or  aluminium  phosphide  can   be
automatically generated in the dead body.

10.   Section 304-B of IPC relates to dowry death. For the  purpose  of  the
said Section, a presumption as to dowry death can be raised  only  on  proof
of the following essentials.
       (a)  the death of woman has been caused by burns or bodily injury  or
           has occurred otherwise than under normal circumstances.


       (b)  The said death has occurred within seven years of her marriage

         (c)           The woman was subjected to cruelty or  harassment  by
           her husband or his relatives.


         (d)           Such cruelty or harassment was for, or in  connection
           with, any demand for dowry and


         (e)      She was meted out with such  cruelty  or  harassment  soon
           before her death.

      In  this  connection,  we  may  refer  to  this  Court   decision   in
Kaliaperumal vs. State of Tamil Nadu (2004) 9 SCC 157.


11.   In the case of Hira Lal  & Others Vs. State  (Govt.  of  NCT),  Delhi,
(2003) 8 SCC 80, this Court analyzed Section 304B IPC and Section  113-B  of
the Indian Evidence Act and made the following observations:

         "8. Section 304-B IPC  which  deals  with  dowry  death,  reads  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
         circumstances within seven years of her marriage and  it  is  shown
         that soon  before  her  death  she  was  subjected  to  cruelty  or
         harassment by her husband or any relative of her husband for, or in
         connection with, any demand for dowry, such death shall  be  called
         'dowry death', and such husband or relative shall be deemed to have
         caused her death.
            Explanation.-For the purpose of this sub-section, 'dowry'  shall
         have the 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."


         The provision has application when death of a woman  is  caused  by
         any burns or bodily injury or occurs otherwise  than  under  normal
         circumstances within seven years of her marriage and  it  is  shown
         that soon  before  her  death  she  was  subjected  to  cruelty  or
         harassment by her husband or any relatives of her husband  for,  or
         in connection with any  demand  for  dowry.  In  order  to  attract
         application of Section 304-B IPC, the essential ingredients are  as
         follows:
            (i) The death of a woman should be caused  by  burns  or  bodily
         injury or otherwise than under a normal circumstance.
            (ii) Such a death should have occurred within seven years of her
         marriage.
            (iii) She must have been subjected to cruelty or  harassment  by
         her husband or any relative of her husband.
            (iv) Such cruelty or harassment should be for or  in  connection
         with demand of dowry.
            (v) Such cruelty or harassment is shown to have been  meted  out
         to the woman soon before her death.


         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 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  death.-When  the  question  is
         whether a person has committed the dowry death of a woman and it is
         shown that soon before her death such woman had 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)."


         The necessity for insertion of the two provisions  has  been  amply
         analysed by the Law Commission of India in its 21st Report dated 10-
         8-1988 on "Dowry Deaths  and  Law  Reform".  Keeping  in  view  the
         impediment in the pre-existing law in securing  evidence  to  prove
         dowry-related deaths, the legislature thought it wise to  insert  a
         provision relating to  presumption  of  dowry  death  on  proof  of
         certain essentials. It  is  in  this  background  that  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 woman concerned 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:
            (1) The question before the court must be  whether  the  accused
         has committed the dowry death of the 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."


12.   In the present case the death of Raj Rani occurred within seven  years
of her marriage. It is not disputed that  her  death  is  not  under  normal
circumstances. Statements of the complainant (PW-7) and Hari  Chand  (PW-13)
are specific about the harassment of the deceased-Raj Rani  by  the  accused
in connection with the  demand  of  dowry.  It  is  also  evident  from  the
evidence on record that she was meted out with such harassment  soon  before
her death.

13.   In view of the evidence on record, as discussed above,  we  hold  that
the prosecution was successful in proving the ingredients of  Section  304-B
IPC. The Trial Court rightly presumed that the accused has caused the  dowry
death of the victim and the High Court rightly  upheld  the  conviction  and
sentence.

14.   We  find  no  merit  in  this  appeal  and  the  same  is  accordingly
dismissed. The appellant is directed to be taken into custody  forthwith  to
serve remainder period of sentence.



                         .................................................J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)




                         .................................................J.
                                                              (N.V. RAMANA)
NEW DELHI;
JANUARY 14, 2015.