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State vs Sanjay Singh on 8 January, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: December 21, 2017
Pronounced on: January 08, 2018
CRL. A. 766/2017

STATE …Appellant
Through: Ms Radhika Kolluru, APP for State with
SHO/Inspector Suresh Chand and SI Shailendra
Kumar Singh, PS Gokulpuri.

versus
SANJAY SINGH …Respondent
Through: Mr V.K. Upadhyay, Advocate.

CORAM:
JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

% JUDGMENT

Dr. S. Muralidhar, J.:
1. The State in this appeal has challenged the order dated 30th March, 2016
passed by the learned District and Sessions Judge, North East in SC
No.45066/2015 (Old SC No.45/15) arising from an FIR No.460/97
registered at Police Station („PS‟) Gokalpuri to the extent that by the said
judgment, the Respondent/Accused has been acquitted of the offence under
Section 304B Indian Penal Code („IPC‟) even while he was convicted for
the offence under Section 498A IPC.

CRL. A 766/2017 Page 1 of 24
Earlier round of litigation
2. This is the second round of litigation in this Court. In the earlier round,
against the judgment 31st January, 2000 and order on sentence dated 8th
January 2000, passed by the trial Court, the Respondent and the co-accused
Satbir had filed Crl. Appeal Nos. 156 and 90 of 2000 respectively in this
Court. By the said judgment, the learned trial Court had convicted the
Respondent for offences under Sections 304B and 498A of the IPC whereas
the co-accused Satbir had been convicted for the offence under Section
498A IPC. By the order on sentence dated 8th February 2000, which was
also challenged in those appeals, the Respondent herein had been sentenced
to rigorous imprisonment („RI‟) for life for the offence under Section 304B
IPC and for the offence under Section 498A IPC, to RI for 3 years and fine
of Rs.20,000/-, and in default to undergo RI for 8 months.

3. By the judgment dated 28th May 2015, in the aforementioned Crl. Appeal
Nos. 156 and 90 of 2000, this Court set aside the judgment of the trial Court.
This Court held that in light of the evidence and material on record, the
conviction of the co-accused Satbir under Section 498A IPC was not
justified and, therefore, allowed his appeal.

4. As far as the Respondent was concerned, while setting aside the judgment
convicting the Respondent for the offences under Section 498A and 304 B
IPC, the Court remanded the case to the trial Court for fresh proceedings
from the stage of recording of the statement of the Respondent Sanjay under
Section 313 of the Code of Criminal Procedure, 1973 („Cr PC‟).

CRL. A 766/2017 Page 2 of 24
Background

5. The background to the present case is that Suman („deceased‟) daughter
of Nathu Singh (PW1) was married to the Respondent/Accused Sanjay
Singh on 26th April, 1995. According to the prosecution, the in-laws of the
deceased were not satisfied with the dowry given by her parents. She was,
therefore, ill-treated by the accused and his family members in the
matrimonial home. Her ill-treatment increased after she delivered a baby
girl.

6. For a period of about 2 months in May and June, 1997, the deceased
stayed at her parental house. The co-accused Vijay Singh, the father of the
Respondent, visited the parental house of the deceased along with his
younger son on 26th June, 1997 and brought the deceased back to her
matrimonial home. At night, she had coitus with her husband. In the early
hours of 27th June 1997, the deceased Suman and her daughter Sweta were
both found lying dead. The body of the deceased was found suspended with
a hook with the help of a ligature.

7. The Respondent informed PW1, who talked to co-accused Satbir
(maternal uncle of the Respondent) and reached Village Khajuri, along with
the members of his family. PW1 lodged a report with the Sub-Divisional
Magistrate („SDM‟), Seelampur, in which he stated that his daughter had
been subjected to cruelty and torture at the hands of the accused on account
of dowry demands. She was pregnant at the time of her death. Her in-laws
wanted the deceased to abort the child, but Suman had not agreed.
According to PW1, the Respondent and the co-accused Satbir had made an

CRL. A 766/2017 Page 3 of 24
extra-judicial confession over the telephone to PW1 that they had killed his
daughter. FIR 460/97 was then registered under Sections 302/304B/498A
IPC at PS Gokalpuri.

Charge

8. There were six accused arraigned. Apart from the Respondent, his parents
(Vijay Singh and Nirmala), uncle (Satbir), his brothers Sashi and Kapil
(declared juvenile) were the accused. The charge that was framed by the trial
Court on 15th May, 1998 read as under:

“That from 27th of April 1995 till 27th of June 1997 at house no. 134
Village Khajuri Khas, Delhi, you all in furtherance of your common
intention, you Sanjay being husband of Smt. Suman, you Vijay Singh
being her father-in-law, you Sashi being her brother-in-law and you
Satbir being brother of her mother-in-law along with Kapil (facing
trial at Juvenile Court) and Nirmala @ Bimla (her mother-in-law who
is PO) treated Smt. Suman with cruelty and thereby committed an
offence punishable U/s 498 A read with section 34 of the Penal Code.

Secondly at the night intervening 26th and 27th of June 97 at aforesaid
house, you all along with your associates Kapil (facing trial of
Juvenile Court) and Nirmala @ Bimla (mi), in furtherance of your
common intention to murder Smt. Suman and Kumari Sweta
strangulated them and caused their death and thereby committed an
offence of murder punishable U/s 302 read with Section 34 of the
Penal Code and within my cognizance.”

9. The accused pleaded not guilty. The prosecution examined 19 witnesses.
In his statement under Section 313 Cr PC, recorded by the trial Court on 30th
July 1999, while denying the circumstances put to him, the Respondent
specifically denied that the deceased had been sent back to her matrimonial
home on 23rd June, 1997 on the assurance of his father that he would advise

CRL. A 766/2017 Page 4 of 24
the Respondent not to beat the deceased and not raise any dowry demand.
The Respondent replied: “It is incorrect as there is no question of demand of
dowry and as such there is no occasion to give assurance to the father of the
deceased Suman.” He also denied making any extra-judicial confession on
27th June, 1997 to PW1 that he and his family members had killed the
deceased and their daughter Sweta. When asked whether he had anything
else to say, the Respondent stated as under:

“I am innocent. I have been falsely implicated. I was ill in those days
and was preparing for B.A 1st year and so, my father had gone to
bring Suman and Sweta from their parental home. Due to illness, I
could not go there. Suman committed due to hanging as she was not
happy with her parents for not supplying the clothes etc.
commensurate with the clothes supplied to Rekha, younger sister of
deceased. There was no harassment or demand of dowry from our
side. Before committing suicide, Suman might have committed
murder of Shweta by strangulating her.”

10. In the judgment dated 31st January, 2000, the trial Court concluded that
the offence under Section 302 IPC read with Section 34 IPC had not been
proved against any of the accused persons and accordingly they were
acquitted. However, all of them were stood convicted for the offence under
Sections 498A IPC.

11. As far as the Respondent Sanjay was concerned, the trial Court
concluded that on the unfortunate night he had dealt the deceased with
cruelty and she perceived the act coupled with the past conduct of her
husband and her in-laws and took it that, “the only way out for her was to
take the extreme step of putting an end to her life.” It is concluded that, “the
particular mental frame of the victim, which was groomed by persistent

CRL. A 766/2017 Page 5 of 24
cruel behaviour of accused Sanjay, offered meaning and value of his
behaviour to the victim, suggesting her to act in a particular way.”

12. What weighed with the trial Court was that the deceased had shared the
bed with her husband on that fateful night and that “in such a situation the
facts give hypothesis to the events that when the lady was in the bed with
her husband, she was mentally harassed or ill-treated by her husband.
Absence of injury on her person ruled out physical injury to her. But mental
torture pushed her in the stage of gloomy depression and she took the
decision of self-destruction as well as murder of her daughter.” Therefore,
“it was clear that momentum of depression can be attributed to the husband
of the victim.”

Judgment of this Court

13. However, when the matter travelled in the appeal to this Court, it was
noticed that in fact no charge under Section 304B IPC had been framed by
the trial Court and yet it had proceeded to convict the Respondent for the
offence under that charge. It is important at this stage to set out, in some
detail, portions of the judgment dated 28th May, 2015 passed by this Court.

14. This Court first noticed the consequence of proceeding to convict a
person under Section 304B IPC without framing a charge for such offence.
This Court discussed in detail the judgment of the Supreme Court in
Shamnasaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 and
concluded that “there was a lapse on the part of the Additional Sessions
Judge in not framing charge in alternative under Section 304B IPC though
the charge-sheet had invoked such section.” The Court then proceeded to

CRL. A 766/2017 Page 6 of 24
observe as under:

“14. On the question, whether there should be fresh de novo trial or
whether proceedings should begin from the stage of recording of
statement of the appellant Sanjay under section 313 Cr.P.C we are
inclined to follow the dictum and the directions given by the Supreme
Court in the case of Shamnasaheb M. Multtani (supra), wherein, it has
been directed that the trial would begin from the stage of recording of
statement under Section 313 Cr.P.C. One of the reasons why we have
held and given the said direction, is that charge had also been framed
under Section 498A IPC. No doubt Section 498A is wider and
includes mental cruelty in addition to demand for dowry, but when we
read the evidence relied upon by the prosecution and the cross-
examination, it is apparent that allegations with regard to demand of
dowry was a subject matter of evidence-in-chief as well as cross-
examination. It would not be appropriate to direct recording of fresh
evidence in the said situation. As noticed above, in the case of
Shamnasaheb M. Multtani (supra) also, the Supreme Court had not
directed recording of entire evidence afresh.

15. In view of the aforesaid discussion, the Criminal Appeal No.
156/2000, filed by appellant Sanjay has to be allowed but with an
order of remit/remand of fresh proceedings from the stage of
recording of statement of the appellant Sanjay under Section 313
Cr.P.C.

16. As we have set aside the impugned judgment against the appellant
Sanjay Singh, his conviction under Section 498A IPC has to be also
treated as set aside and the trial court will examine afresh, whether or
not offence under Section 498A IPC has been committed. We find it
necessary to set aside the conviction under section 498A IPC, in view
of our directions in respect of offence under section 304B of the IPC,
as otherwise it would cause confusion and ambiguity.

17. The appeal of Sanjay Singh, (Crl. A, 156/2000) is accordingly
disposed of.”

CRL. A 766/2017 Page 7 of 24

Proceedings on remand

15. On remand, the case recommenced before the trial Court from the stage
of the recording of the statement of the Respondent under Section 313 Cr
PC. This took place on 17th August, 2015. Although the entire recording of
the statement took place afresh, the following questions and answers are of
significance:

“Q13. It is further in evidence against you that Smt. Suman expressed
apprehension due to ill treatment meted to her by you, your mother,
brothers Kapil and Shashi and maternal uncle Satbir and for that
reason Sh. Nathu Singh .father of Suman took her to his house. What
have you to say?

Ans. It is incorrect. Sh. Nathu Singh had not taken his daughter
Suman to his house. His son, Mr. Ashok brother of Suman had taken
her to her parents‟ house about two months before her death.

Q 14. It is further in evidence against you that Suman stayed in her
parents‟ home for 5 months and she was not sent to your house till
that period. What have you to say?

Ans. It is incorrect to suggest that she had stayed at her parental house
for five months. Suman had gone to her parental house on 26.04.97
and had returned on 26.06.97.

Q 26. It is further in evidence against you that you informed Sh.
Nathu Singh on 27.06.1997 that you and your family members had
killed her as well as her daughter baby Shweta. What have you to say?

Ans. It is correct that I had called Sh. Nathu Singh on 27.06.97. It is
incorrect that I informed me about killing of Suman and Shweta. I had
told him that Suman had committed suicide but I did not tell him
about the death of Shweta as I was not aware till that time.

CRL. A 766/2017 Page 8 of 24

The impugned judgment of the trial Court

16. The trial Court, thereafter, pronounced the impugned judgment on 30th
March, 2016 affirming the conviction of the Respondent for the offence
under Section 498A IPC while acquitting him for the offence under Section
304B IPC. The reasoning of the trial Court was as under:

(i) The death of the deceased was suicidal. She was brought to the
matrimonial home only on 26th June, 1997 after about 2 months of staying at
her parental house.

(ii) She was brought to the matrimonial home by the father and brother of
the accused. They had persuaded the parents of the deceased to send her.
Her parents have agreed to send her only after getting assurances that the
deceased will not ill-treated at her matrimonial home.

(iii) The deceased reached her matrimonial home on the evening of 26 th
June, 1997 and committed suicide in the peak hours. There was no evidence
that she was ill-treated by the Respondent on that night. In fact, the medical
report Ex.PW19/A revealed that she had coitus that night. In such a
situation, it is evident that, “she has not been mentally harassed or ill-treated
by the accused Sanjay that night.” Absence of any injury on her person rules
out physical injury to her.

(iv) She took the decision to commit suicide and also kill her daughter. The
only inference that could be drawn was that, “she was under some sort of
depression.” It was, however, certain that, “accused could have done nothing
to aggravate the situation that could have led Suman to commit suicide.”

CRL. A 766/2017 Page 9 of 24

The trial Court was therefore of the view that, “accused Sanjay would not
have done anything on the night intervening 26.06.1997 and 27.06.1997
which could have forced her to commit suicide.”

17. The trial Court by a separate order of the same date held:

“Considering all the facts and circumstances of the case, particularly,
the fact that convict has already suffered incarceration for about 6 1/2
years, I am inclined to take a lenient view against him and sentence
him to period already undergone by him in custody for the offence
under Section 498-A IPC.”

18. The trial Court overlooked the fact the maximum sentence for the
offence under Section 498-A IPC was three years. Therefore it could not
have sentenced him to the period already undergone, by taking a „lenient
view‟ as what he had undergone by then, i.e. 6 ½ years, was twice the
maximum sentence.

Submissions of counsel for the State

19. Ms Radhika Kolluru, learned APP for the State, submitted that this was
plainly a case of dowry death as defined under Section 304B IPC. She
pointed out that the death in this case was otherwise than under normal
circumstances and within 7 years of marriage. The fact that the Respondent
had not challenged his conviction under Section 498A IPC meant that the
finding of the trial Court that the deceased was subjected to cruelty and
harassment by him soon before her death was not challenged by him.
Therefore, the major ingredient of Section 304B IPC already stood fulfilled.
She placed reliance on the decision in Bhupendra v. State of Madhya
Pradesh (2014) 2 SCC 106 which held that even a suicidal death was

CRL. A 766/2017 Page 10 of 24
“otherwise than under normal circumstances.” Ms. Kolluru submitted that
the trial Court gravely erred in not appreciating the legal position of the
presumption that could be drawn under Section 113B of the Indian Evidence
Act („IEA‟) with the burden shifting on the accused to show that it was not a
dowry death and that he was not responsible for it.

20. As an alternative plea, Ms. Kolluru placed reliance on the decision in
Gurnaib Singh v. State of Punjab (2013) 7 SCC 108 to urge that the
conviction could have been recorded of the Respondent even under Section
306 IPC read with Section 113A of the IEA although no charge may have
been specifically framed for that offence.

Submissions of counsel for the Respondent

21. Mr. V.K. Upadhyay, learned counsel for the Respondent, on the other
hand submitted at the outset that even after the judgment dated 28 th May,
2015 of this Court in the first round, the fact remained that the Respondent
was not charged under Section 304B IPC much less for an offence under
Section 306 IPC. He pointed out that this flaw continued even after the
judgment of this Court. There was no question put to the Respondent under
Section 313 Cr PC that he had caused the dowry death of the deceased. A
valuable opportunity to the Respondent to defend himself against the charge
was denied even in the second round under Section 313 Cr PC. According to
him, this was a fatal flaw which could not be held to be merely irregular.

22. As far as the merits of the case are concerned, Mr. Upadhyay submit that
there was no evidence whatsoever to show that the deceased was treated
with mental cruelty by her husband soon before her death. Reliance was

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placed on the decision in Mangat Ram v. State of Haryana (2014) 12 SCC
595 where it was held that the mere fact that a married woman committed
suicide within a period of 7 years of her marriage would not straightway
attract the presumption under Section 113A of the IEA. The important
ingredient of showing that she had been subjected to cruelty had to be shown
to exist. He further submitted that there is no automatic presumption that
Section 113A of the IEA would apply unless it was shown that the suicide
was abetted by the accused.

23. Mr. Upadhyay placed reliance on the decision in Pinakin Mahapatre v.
State of Gujarat (2013) 10 SCC 48 and S. Anil Kumar @ Anil Kumar
Ganna v. State of Karnataka (2013) 7 SCC 219. Reliance was also placed
on the decision in Sher Singh v. State of Haryana (2015) 3 SCC 724. He
also placed reliance on the decision in Baijnath v. State of Madhya Pradesh
(2017) 1 SCC 101 where it was held that the presumption as regards dowry
death was triggered “only upon the proof of the fact that the deceased lady
had been subjected to cruelty or harassment in connection with any demand
of dowry by the accused and that too with reasonable contributory to death.”
In Ramo Devi v. State 2016 (3) JCC 1579 it was held that Section 306 IPC
is not a minor offence nor Section 304B IPC and the ingredients of the two
offences being different, in the absence of a charge under Section 306 IPC,
the Appellant could not be convicted under the said offence.

Charge under Section 304 B IPC

24. It requires to be noticed at the outset that in its judgment dated 28 th May,
2015, the Court did not propose to disturb the conviction of the Respondent

CRL. A 766/2017 Page 12 of 24
under Section 498A IPC. However, the Court felt that since it was
remanding the matter to the trial Court for rectifying the failure to frame
charge under Section 304 B IPC, it was expedient to set aside the conviction
under Section 498A IPC as well since the trial Court would examine afresh
whether that offence was also made out.

25. An important part of the remand order dated 28th May 2015 of this
Court, is the observation in para 16 that, “We find it necessary to set aside
the conviction under Section 498A IPC in view of our directions in respect
of the offence under Section 304B IPC, as otherwise it would cause
confusion and ambiguity.” Clearly, therefore, this Court was remanding the
matter to the trial Court only because the Additional Sessions Judge erred,
“in not framing charge in alternative under Section 304B IPC, though the
charge-sheet had invoked such section.” It is only when it came to framing
the consequential directions that the Court decided to follow what had been
done by the Supreme Court in Shamnasaheb M. Multtani v. State of
Karnataka (supra).

26. In Shamnasaheb M. Multtani v. State of Karnataka (supra), the
Supreme Court had stated in para 35 that since the Appellant had been
convicted under Section 304-B IPC “without such an opportunity being
granted to him” it was necessary in the interest of justice, “to afford him that
opportunity.” That opportunity was to disprove the presumption under
Section 304-B IPC. The Court was affording such an opportunity to the
accused to “discharge his burden by putting him to notice regarding the
prima facie view of the Court that he is liable to be convicted under Section

CRL. A 766/2017 Page 13 of 24
304B IPC, unless he succeeds in disproving the presumption.”

27. Therefore, it was clear from the discussion in this Court‟s judgment
dated 28th May, 2015 that the only purpose for which it was sending the
matter back to the trial Court for recording the statement of the accused
under Section 313 Cr PC was that he should now be given an opportunity to
succeed in disproving the presumption that would be drawn under Section
304-B IPC. The Court was conscious at that stage that the Respondent had
already suffered incarceration of about 6 years 5 months and 7 days and also
earned remission of 11 months and 16 days as per the nominal roll dated 3rd
January, 2004. The Court then proceeded to record the circumstances relied
upon by the prosecution without offering its opinion thereon. Therefore, it is
clear that the Respondent was put to notice that the remand was only for the
purposes of his defending himself against the charge under Section 304B
IPC and that there was no need to separately frame a charge now that the
matter was being remanded for his defence.

28. As explained by the Supreme Court in Shamnasaheb M. Multtani v.
State of Karnataka (supra), the case in the trial Court was asked to proceed
from the stage of defence since the “accused was put to notice that unless he
disproves the presumption, he is liable to be convicted under Section 304B
IPC.” Consequently, this Court negatives the preliminary objection raised by
the Respondent that since even on remand, no specific charge was framed
against the Respondent under Section 304-B IPC, he could not be convicted
for that offence. This plea was already noticed in the first round and dealt
with by this Court. It is only because that this plea was accepted, that the

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matter was sent back to the trial Court to be recommenced from the stage of
Section 313 Cr PC following the decision of the Supreme Court in
Shamnasaheb M. Multtani v. State of Karnataka (supra). Therefore, in the
second round, the Respondent was aware that he was required to defend
himself against the charge for the offence under Section 304-B IPC.

Offence under Section 304-B IPC

29. Now turning to the merits of the case, the central thrust of the argument
of learned counsel for the Respondent was that there was no automatic
presumption of a dowry death under Section 304-B IPC unless the important
ingredient that the deceased was subjected to cruelty soon before her death,
was proved.

30. As far as the present case is concerned, the above submission overlooks
the fact that the Respondent has not questioned his conviction under Section
498-A IPC. That provision reads thus:

“498A. Husband or relative of husband of a woman subjecting her to
cruelty.

Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall
also be liable to fine.

Explanation.–For the purpose of this section, “cruelty” means–

(a) any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or

CRL. A 766/2017 Page 15 of 24

(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.”

31. One of the main ingredients of Section 498A IPC is ‘subjecting the
woman to cruelty’. Explanation (a) envisages mental or physical cruelty of
the woman. Explanation (b) is on the aspect of harassment, which could be
in the form of a dowry demand, which would also amount to cruelty.

32. It is this aspect under Explanation (b) to Section 498 A IPC that is
relevant in the context of Section 304-B IPC which reads thus:

“304B. 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.

33. In the present case, since the offence under Section 498A IPC, with
reference to Explanation (b) thereof, stood proved against the Respondent,
there was no need for it to further prove for the purposes of Section 304-B
IPC that the deceased was subjected to cruelty for the purposes of dowry.

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The specific finding of the trial Court in this regard in the impugned
judgment requires to be set out in full. It reads thus:

“(15) From the testimony of the aforesaid witnesses, it becomes
evident that Smt. Suman was treated with cruelty by the accused.
Dowry demands were raised and she was taunted and beaten by the
accused. She was not only subjected to physical injury/cruelty but
accused used every mean to cause mental cruelty/harassment to her. It
stands established on record that the objective of harassment was to
coerce her or any person related to her with a view to meet their
unlawful demands of dowry. The evidence brought on record through
the testimony of these witnesses is sufficient to conclude that Smt.
Suman was dealt with harassment and cruelty by the accused in order
to force her and any other person related to her to meet their unlawful
dowry demands. The ingredients of offence under Section 498-A IPC
have been amply brought over the record against accused Sanjay.”

34. Therefore there trial Court returned a finding about the guilt of the
Respondent under Section 498 A IPC specifically relating it to Explanation

(b) viz., that the deceased “was dealt with harassment and cruelty by the
accused in order to force her and any other person related to her to meet
their unlawful dowry demands.” As already noticed, this finding has not
been challenged by the Respondent.

35. Now turning to Section 304B (1) IPC which defines „dowry death‟, the
ingredients of that offence are that:

(a) The death should have occurred within 7 years of marriage;

(b) The death should have occurred other than under normal circumstances;

(c) Soon before her death, the woman should have been subjected to cruelty
or harassment by her husband or any relative of her husband for, or in

CRL. A 766/2017 Page 17 of 24
connection with, any demand for dowry.

If the above three ingredients are present, the husband, “shall be deemed to
have caused her death.”

36. There is no escape from the fact that in the present case, all the
ingredients have been shown to exist. First, the death of the wife of the
Respondent occurred within 7 years of their marriage. As far as the second
ingredient is concerned, the Supreme Court in Shanti v. State of Haryana
(1991) 1 SCC 371 held that unnatural death whether homicidal or suicidal
would attract Section 304-B IPC. This was reiterated in Bhupendra v. State
of Madhya Pradesh (supra).

37. Turning to the third ingredient, the finding of the trial Court in the
impugned judgment, which has not been challenged by the Respondent, is
that she was subjected by him to “harassment and cruelty” in order to “force
her and any other person related to her to meet their unlawful dowry
demands”. Thus all three ingredients of Section 304-B (1) IPC stand
satisfied in the present case. It would, therefore, be „deemed‟ that the
Respondent caused the dowry death of his deceased wife.

38. Section 113-B of the IEA further engrafts a rule of presumption that
cements the deeming nature of the offence under Section 304-B IPC.
Section 113B IEA reads as under:

“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 has been subjected by such
person to cruelty or harassment for, or in connection with, any

CRL. A 766/2017 Page 18 of 24
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 304B, of the Indian Penal Code,
(45 of 1860).”

39. The two ingredients of Section 113-B IEA are:

(a) The woman must be subjected to cruelty or harassment in connection
with a demand for dowry

(b) Such cruelty or harassment of the woman should have occurred „soon
before‟ her death.

40. As already noticed, ingredient (a) stands fulfilled in the present case. As
regards ingredient (b) the expression „soon before her death‟ has been
explained by the Supreme Court in Hira Lal v. State (Govt. of NCT of
Delhi) (2003) 8 SCC 80 as under:

“A conjoint reading of Section 113-B of the Evidence Act and Section
304-B IPC shows that there must be material to show that soon before
her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the ‘death occurring
otherwise than in normal circumstances’. The expression ‘soon before’
is very relevant where Section 113-B of the Evidence Act and Section
304-B IPC are pressed into service. Prosecution is obliged to show
that soon before the occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence in that regard has to
be led by prosecution. ‘Soon before’ is a relative term and it would
depend upon circumstances of each case and no strait-jacket formula
can be laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed period,
and that brings in the importance of a proximity test both for the proof

CRL. A 766/2017 Page 19 of 24
of an offence of dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The expression ‘soon before
her death’ used in the substantive Section 304-B IPC and Section 113-
B of the Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression ‘soon before’ is
not defined. A reference to expression ‘soon before’ used in Section

114. Illustration (a) of the Evidence Act is relevant. It lays down that
a Court may presume that a man who is in the possession of goods
soon after the theft, is either the thief has received the goods knowing
them to be stolen, unless he can account for his possession. The
determination of the period which can come within the term ‘soon
before’ is left to be determined by the Courts, depending upon facts
and circumstances of each case. Suffice, however, to indicate that the
expression ‘soon before’ would normally imply that the interval should
not be much between the concerned cruelty or harassment and the
death in question. There must be existence of a proximate and live-
link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and
has become stale enough not to disturb mental equilibrium of the
woman concerned, it would be of no consequence.”

41. In Sher Singh v. State of Haryana (supra) the Supreme Court observed:

“We are aware that the word ‘soon’ finds place in Section 304B; but
we would prefer to interpret its use not in terms of days or months or
years, but as necessarily indicating that the demand for dowry should
not be stale or an aberration of the past, but should be the continuing
cause for the death under Section 304B or the suicide under Section
306 of the IPC. Once the presence of these concomitants are
established or shown or proved by the prosecution, even by
preponderance of possibility, the initial presumption of innocence is
replaced by an assumption of guilt of the accused, thereupon
transferring the heavy burden of proof upon him and requiring him to
produce evidence dislodging his guilt, beyond reasonable doubt.”

42. In the present case, the deceased was at her parents‟ home for two
months prior to her death. She had been sent there in light of her being
persistently harassed for dowry, which fact the trial Court held to be proved.

CRL. A 766/2017 Page 20 of 24

The trial Court, however, failed to appreciate that this was a case where all
the ingredients of a deemed dowry death in terms of Section 304-B (1) IPC
stood fulfilled. It also failed to notice the interplay of Section 304-B IPC and
Section 113-B of the IEA and the fact that the burden had shifted to the
Respondent to rebut the presumption under Section 113 B IEA.

43. The trial Court misdirected itself by presuming that that only because
there was coitus between the Respondent and the deceased, there was no
question of the Respondent subjecting her to mental cruelty. In light of
Section 113 B IEA there was no occasion to draw a negative presumption on
this crucial aspect. In the facts of the present case, the expression „soon
before‟ would include the period earlier to the two months when the
deceased remained with her parents. The proven facts had to be seen in their
total perspective. The effect of the harassment for dowry suffered by the
deceased could not be expected to be wiped out entirely in the two months
she stayed with her parents. It is likely that added to the above, whatever
happened between the evening when she came back to the matrimonial
home, and her committing suicide, caused her so much mental anguish that
she committed suicide. Even the sexual act was apparently not without
physical discomfort as the medical report showed (and which was noticed by
this Court in its order dated 28th May, 2015) that there was a bruising on the
lower and external side of lower orifice in the vaginal region of the
deceased. There was, therefore, no legal or factual basis for the trial court to
conclude that the Respondent could not have subjected the deceased to
cruelty or harassment „soon before her death‟.

CRL. A 766/2017 Page 21 of 24

44. The Respondent failed to rebut the presumption both under Section
113B IEA as well as under Section 304B IPC. He did lead defence evidence
by examining one Dharamvir as DW-1. This was an interested witness since
he admitted that the Respondent was the son of the cousin brother of DW-1.
This witness was not of much help to the Respondent. In his cross-
examination, apart from admitting that he could not, from his house which
was in the vicinity of that of the Respondent, know what was happening in
the house of the Respondent, he conceded that: “It is correct that I have
come to court because accused had told me that I had to depose in the Court
in this case.” Surprisingly, he also admitted that “I cannot say as to whether
Suman had committed suicide or that she had been killed.”

45. The Respondent cannot possibly plead that he had no opportunity to
rebut the presumption under Section 113 B IEA and section 304-B IPC. He
was fully aware that it was in order to provide him with that opportunity that
the matter was remanded by this Court to the trial Court and asked to be
recommenced from the stage of recording his statement under Section 313
Cr PC. He availed that opportunity but failed to rebut the statutory
presumption.

46. For all of the aforementioned reasons, the Court is of the considered
view that the trial Court erred in acquitting the Respondent of the offence
under Section 304-B IPC and, therefore, sets aside that portion of the
impugned judgment. This Court, accordingly, convicts the Respondent for
the offence under Section 304-B (1) IPC.

CRL. A 766/2017 Page 22 of 24

Sentence

47. Now turning to the question of sentence, the minimum sentence for the
offence under Section 304-B (1) IPC, as set out in sub-section (2) thereof, is
imprisonment for 7 years. The maximum is imprisonment for life.

48. Even at the stage of remand to the trial Court, it was noticed by this
Court in para 11 of its judgment dated 28th May 2015, that the Respondent
had undergone incarceration of about 6 years 5 months and 7 days and also
earned remission of 11 months and 16 days as per the nominal roll dated 3 rd
January, 2004. In other words, he had already completed, together with
remissions, incarceration of 7 years. The factors that weigh with this Court
in considering the appropriate sentence to be awarded to the Respondent for
the offence under Section 304-B IPC are: (i) The long period of trial, and re-
trial over nearly two decades (ii) the fact that the Respondent has already
undergone imprisonment for 7 years including remissions even as of January
2004 (iii) the fact that for the offence under Section 498A IPC he had
already served out the maximum sentence of three years and a further three
and a half years.

49. Keeping in view the above factors, this Court sentences the Respondent
for the offence under Section 304B IPC to imprisonment for a period of 7
years, inclusive of the remission already earned, with the further direction
that the said sentence would be concurrent with the sentence for the offence
under Section 498-A IPC. In effect, since the Respondent has already served
out the sentence awarded to him for the offences under Section 304B and
Section 498 A IPC, inclusive of the remission, he need not surrender to

CRL. A 766/2017 Page 23 of 24
serve out any remaining period of sentence. The bail bonds and surety
bonds, if any, of the Respondent stand discharged.

50. The appeal is disposed of in the above terms but, in the circumstances,
with no orders as to costs. The trial Court record be returned forthwith along
with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

JANUARY 08, 2018
rd

CRL. A 766/2017 Page 24 of 24

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