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Suresh Kumar Singh Vs. State Of U.P. on 6 May, 2009

Suresh Kumar Singh Vs. State Of U.P. on 6 May, 2009Bench: S.B. Sinha, Mukundakam Sharma

HELD: 1. One of the ingredients of Section 304B IPC is marriage within a period of seven years preceding the death. No such requirement finds place in Section 498A thereof. From the evidence of brother of deceased, P.W.1, it appears that he had talked of only one incident in respect whereof his evidence was admissible in law, that is, when the deceased came back to her parental home six months after `Gauna’ ceremony, she had informed him that if he did not give a ring and a chain, the accused persons might kill her. It is also not in dispute that the matter rested at that as he talked to the appellant in that behalf, whereafter he came and took her away. The matter was therefore settled. There was nothing to show that any cruelty or harassment was meted out on that ground thereafter. So far as the other incident disclosed by him is concerned, it was one which he had heard from his wife and other female members of the family. It was, thus, hearsay, as they were not examined. [Paras 16, 17] [1078-C-F]

2. In order to attract s.304B IPC, it is imperative on the part of the prosecution to establish that the cruelty or harassment was meted out to the deceased `soon before her death’. There cannot be any doubt that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as `proximity test’. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim. Some harassment which had taken place one year prior to the death without something more, could not have been considered to be a cruelty which had been inflicted soon before the death of the deceased. It does not satisfy the proximity test. As the death had not taken place within a period of seven years and there is no evidence that any cruelty has been inflicted upon the deceased soon before her death neither the presumption in terms of Section 113B of the Evidence Act could have been drawn nor it could be concluded that the appellant is guilty of commission of offence under Section 304B. The appellant was rightly found guilty of commission of offence under Section 498A IPC. Sentence imposed on him on that count is, therefore, maintained. [Paras 19, 21, 22, 23, 24] [1079-C-D; 1082-G-H; 1083-B-C]

Satvir Singh and Ors. v. State of Punjab and Anr. (2001) 8 SCC 633; Harjit Singh v. State of Punjab (2006) 1 SCC 463; Thakkan Jha & Ors. v. State of Bihar (2004) 13 SCC 348; Baldev Singh v. State of Punjab (2008) 13 SCC 233; Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar (2005) 2 SCC 388; Ram Badan Sharma v. State of Bihar (2006) 10 SCC 115; Devi Lal v. State of Rajasthan 2007 (12) SCALE 265; State of Rajasthan v. Jaggu Ram 2008 (1) SCALE 22 – relied on.

Case Law Reference

(2001) 8 SCC 633 relied on Para 19

(2006) 1 SCC 463 relied on Para 19

(2004) 13 SCC 348 relied on Para 19

(2008) 13 SCC 233 relied on Para 19

(2005) 2 SCC 388 relied on Para 19

(2006) 10 SCC 115 relied on Para 19

2007 (12) SCALE 265 relied on Para 19

2008 (1) SCALE 22 relied on Para 19

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 939 of 2009

From the Judgment and Order dated 05.03.2008 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 186 of 1996

Naveen Kumar Singh, Prakash Jha, Rohit Aggarwal, Vishal Arun, for the Appellant.

Pramod Swarup, Manoj Kumar Dwivedi, Gunnam Venkateswara Rao, for the

Respondent.

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