Nanhey Lal vs State of U.P.

S.R. Singh, J.—This is an application for bail u/s 439, Code of Criminal Procedure. The applicant is incarcerated in Jail for the alleged commission of offences u/s 498A/304B, I.P.C. and 3/4 of Dowry Prohibition Act, registered in case Crime No. 334 of 1996 at P.S. Mutthiganj, District Allahabad.

The incident in the instant case is said to have come to pass on 24.9.96 at about 6 a.m. and the First Information Report of the incident was lodged at the Police Station concerned the same day at about 11.50 a.m. by one Sri Chandra Nath Pandey father of the deceased Smt. Sandhya, Ramji Sharma, husband and Chandra Devi, mother-in-law of the deceased have also been inculpated as accused besides the applicant, the father-in-law of the deceased, in the F.I.R. According to the allegations made in the F.I.R., the deceased was tortured, physically and mentally, by the accused persons for or in connection with demand of dowry and the consequent suicide by the deceased by setting herself ablaze, was the culmination of unabated torture and ill-treatment, she was subjected to. The marriage, according to the F.I.R., with Ramji Sharma had been solemnised on 4.2.94 and out of the wedlock, a daughter was born on 16.6.96. The questions surfacing up for consideration being of substantial importance, may be summed up as below:

(1) Whether the commission of suicide by woman within 7 years of her marriage would attract frown of Section 304B, I.P.C. if it is borne out 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 or could it at best attract only Section 306, I.P.C?

(2) Whether a statement, written or oral, given by the woman before committing suicide that her husband and/or any relative of her husband had been harassing or ill-treating her for, or in connection with any demand for dowry, could be relevant as dying declaration within the purview of Section 32(1) of the Evidence Act?

(3) Whether Sections 113A and 113B of the Evidence Act have brought about any change in suicide and dowry death cases?

A bare reading of Section 304B, I.P.C. reflects 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 marriage and it is projected 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 and shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Cruelty for the purposes of Section 304B of the Indian Penal Code 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 and/or physical) of the woman; (b) harassment of the woman whether such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 113B of the Indian Evidence Act, 1872 postulates that where the question is whether a person has committed 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 of dowry, the court shall presume that such person had caused the dowry death. The presumption raised by Section 113B of the Evidence Act finds its echo in Section 304B of the Indian Penal Code itself in that such presumption is implicit in the language in which Section 304B, I.P.C. is couched, particularly the definition of "dowry death" and the fiction created by the expression "shall be deemed to have caused dowry death." It is luculently clear from the language employed by the Parliament in Section 304B, I.P.C. that where the death of a married woman has occurred, otherwise than under the normal circumstances, within seven years of her marriage and it is shown that soon before her death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, the husband or such relative of her husband, as the case may be "shall be deemed to have caused her death." It is, therefore, evident "that irrespective of the fact whether the accused has any direct connection with death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned in section are satisfied." Hem Chand v. State of Haryana 1995 SCC 36, is the bench-mark authority in aid of the proposition that irrespective of the fact whether the accused had any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements encapsulated, in the section are satisfied. It is not necessary for attracting provisions of Section 304B that apart from showing that the death has occurred in unnatural circumstances within seven years of her marriage and that soon before her death, the woman was subjected to cruelty or harassment by the accused for, or in connection with, any demand for dowry, it must also be shown that the accused had any direct nexus with the death. To reword it, it is not at all essential for attracting the provisions of Section 304B, I.P.C. that the blame must attach directly to the accused for the injuries which resulted in death. To rephrase it, the cases of homicide and suicide both can attract Section 304B, I.P.C. if the same has come about within seven years of the marriage and it is borne out that soon before her death the woman was subjected to cruelty or harassment by the accused for or in connection with any demand for dowry. The accused in that event would be taken to have committed the dowry death punishable u/s 304, I.P.C. The definition of ''cruelty'' as given in Section 498A, I.P.C. also leads to the same conclusion.

At the same time, the accused may also be exposed to punition u/s 306, I.P.C. for abetting suicide. Section 113A of the Evidence Act provides that when the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is demonstrated that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or any such relative of her husband. In such a situation, the accused may be punished both u/s 306, I.P.C. as well as Section 304B in addition to his punition u/s 498A of the Indian Penal Code. Certain observations made in Lakhjit Singh and Anr. v. State of Punjab 1994 SCC 235, no doubt, lend support to the view that dowry-related suicide even if committed by a woman within seven years of her marriage in the back-drop of dowry related ill-treatment would attract only Section 306, I.P.C. and not Section 304B of the Indian Penal Code, but the said decision stands impliedly eclipsed and overshadowed by the subsequent larger bench decision in Hem Chand v. State of Haryana (supra) wherein the plea that there should be direct link or connection of the accused with the death of the woman tailed off and was specifically repelled. Therefore, where a woman commits suicide by consuming poison or by handing or otherwise, the accused may be held guilty and be visited with the punishment both u/s 304B and Section 306 of the Indian Penal Code if the other conditions stipulated in Section 304B are satisfied and the accused falls short of rebutting the presumptions which the court is entitled to make under Sections 113A and 113B of the Evidence Act. To rephrase it, Section 304B of the Indian Penal Code encompasses within its sweep not only homicide but suicide as well if the incident of suicide takes place within seven years of. marriage and was preceded by ill-treatment amounting to "cruelty" or harassment for, or in connection with, any demand for dowry.

Before parting with the discussion on the first question, it would be worthwhile to reckon with the scope and ambit of the expression" soon before her death" used in Section 304B, I.P.C. and Section 113B of the Evidence Act. The term "soon before" no-doubt, connotes a sense of proximity of time between the dowry related maltreatment amounting to cruelty and the incident of death but it "cannot be literally construed and practically reduced to cut-and-dried formula of universal application so as to be confined in a strait-jacket." As isolated incident of dowry related ill-treatment amounting to "cruelty" meted out to the woman in the remote past, may not be independently relevant but if it forms a chain of continuous incidence of ill-treatment amounting to "cruelty", it would certainly become relevant under Sections 6 and 11(2) of the Evidence Act. That, in my opinion, is the appropriate import of the expression "soon before her death" occurring in Section 304B, I.P.C. and 113B of the Evidence Act.

As regards the second question, the submission made by Sri V.C. Tiwari, learned Counsel appearing for the applicant was that the oral statement alleged to have been made by the deceased to her mother, sister and other relatives before the fateful incident of burning, would not be admissible as dying declaration u/s 32(1) of the Evidence Act. Sri D.S. Misra, counsel appearing for the complainant and Sri G.S. Bisaria, learned Addl. Government Advocate appearing for the State, urged in opposition that the statement made by the deceased to her mother, sister and other relatives regarding dowry related ill-treatment and harassment before the fateful incident would be admissible as dying declaration u/s 32(1) of the Evidence Act. The question, in my opinion, is no longer re-integra in view of Sharad Birdhichand Sarda Vs. State of Maharashtra, , wherein the following, amongst other expositions of law, have been propounded by the Apex Court:

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies whether the death is homicide or a suicide provided the statement relates to the cause of death or exhibits circumstances leading to the death; (2) 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 strait-jacket. Where the death is a logical culmination of 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; (3) where the main evidence consists of statement and letters written by the deceased which are directly connected with or related to her death and which reveal the tell-tale story, the said statement will clearly fall within the four corners of Section 32 of the Evidence Act. The distance of time alone in such circumstances would not make the statement irrelevant; and (4) all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

The Supreme Court, in Sharad''s case (supra), has given a nod of approval of the following observations made by the Division Bench of Punjab and Haryana High Court in Manohar Lal and Others Vs. The State of Punjab, .

The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased, come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act.

In Shiv Kumar v. State of U.P. 1966 Crl Appl. R. (SC) 281, it has been observed by the Apex Court as under:

The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed...

In view of the ex-cathedral authorities aforestated, it is amply clear that the statement made by the deceased to the prosecution witnesses giving the tell-tale story about the dowry related torture or ill-treatment amounting to cruelty as defined in Section 498A, I.P.C., would be admissible as dying declaration u/s 32 of the Evidence Act even though the statements were made before the incident of burning. What is relevant is that the statements were made after the commencement of dowry related ill-treatment and they related to the circumstances which culminated in suicide being committed by her.

Coming now to the grips of the third question, as to whether the fundamental principles of criminal Jurisprudence that the accused shall be presumed to be innocent unless found guilty, has been altered in relation to dowry death punishable u/s 304B, I.P.C. and the abetment of dowry related suicide punishable u/s 306, I.P.C. I am of the view that notwithstanding the presumptions raised by Sections 113A and 113B of the Evidence Act, the accused is to be presumed innocent unless found guilty. However, in relation to dowry deaths and dowry related abetment to suicide, the presumption of innocence is displaced on the prosecution showing that the death occurred in abnormal circumstances within seven years of marriage and was preceded by dowry related ill-treatment amounting to cruelty or harassment.

The Supreme Court in Union of India (UOI) Vs. Thamisharasi and Others, , has ruled that presumption of innocence in favour of the accused is displaced on the prosecution showing existence of reasonable grounds to believe that the accused is guilty and once the prosecution is able to show the existence of reasonable grounds for believing that the accused has been guilty of the offence punishable u/s 304B, I.P.C. the Court will refuse bail to the accused in view of the limitation being operated by Section 437, Code of Criminal Procedure on courts'' power to grant bail. In relation to dowry death, offence punishable u/s 304B, I.P.C the prosecution will be deemed to have discharged its initial burden of showing existence of reasonable ground for believing that the accused is guilty of the offence if it is able to show that (i) the death has occurred by burns or bodily injury or otherwise than under the normal circumstances within seven years of the marriage; and (ii) soon before her death the woman was subjected to cruelty, harassment by the accused for, or in connection with, any demand for dowry.

The prosecution in the instant case, has placed reliance upon the statement of Chandra Nath Pandey and Smt. Meena Devi, the parents of the deceased. Km. Yogita Rani alias Guriya, the sister of the deceased, Ghanshyam Sharma, uncle (Mausa) and one Satendra Tiwari. According to the prosecution case, Smt. Meena Devi and Km. Yogita Rani had paid a visit to the house of the deceased on the day preceding the day of occurrence and the deceased, according to these witnesses, divulged to them the tell-tale story of dowry related ill-treatment and cruelty meted out to her by the accused persons. She is even said to have given vent to the apprehension of being killed by her parents-in-law and the husband in the event of their avarice for dowry being not gratified. Chandra Nath Pandey, the father of the deceased in his statement u/s 161, Cr, P.C. also echoed about the demand for dowry made by the accused persons including the applicant. He also claims to have visited the house of the deceased 5-6 days preceding the occurrence and the deceased according to the statements of the witnesses recorded u/s 161, Code of Criminal Procedure confided in her father that the accused had chorused their demand for dowry. Ghanshyam Sharma and Satendra Tiwari also gave the self-same echo about the demand for dowry in their statement u/s 161, Code of Criminal Procedure. The post-mortem report be-speaks of superficial to deep burns all over the body except the back of chest, both the buttocks and feet. The cause of death is opined to be due to shock as a result of ante-mortem burn injuries. The abdominal cavity was found burst open and small and large bowls were found protruding out. Thus, the death was occasioned by ante-mortem burn injuries within seven years of the marriage. Evidence is there on the record to vouchsafe that soon before her death, the deceased was tormented and subjected to cruelty or harassment by the accused persons for or in connection with demand for dowry. What is the probative value of the evidence is, of course, a different question. All the postulates sine-qua-non for raising the statutory presumption u/s 304B, I.P.C. are, ex facie, gratified and what is now to be reckoned with is whether the accused has been able to rebut the presumption brought to bear against him by virtue of Section 113B of the Evidence Act.

The learned Counsel appearing for the applicant canvassed that had Smt. Meena Devi, mother of the deceased been to the latter''s house on a day preceding the day of occurrence and had the deceased spoken of her envisioning any apprehension of being killed by the husband or the parents-in-law for non-fulfilment of the demand of dowry, she would not have been so insouciant and must have broached the matter with her husband about the impending perils brooding over her daughter and they would have certainly taken prophylactic measures of reporting the matter to the Police authorities. The learned Counsel also canvassed that the father of the deceased was a witness to the inquest proceeding, but his reticence at that point of time, in disgorging the fact that the deceased was subjected to cruelty or harassment and that it was a case of dowry related suicide is disqueiting and yields place to a considerable doubt about the veracity of the subsequent version. The learned Counsel vehemently urged that it does not commend for acceptance even with a pinch of salt that the parents would be foolhardy in remaining clammed up even after such grave apprehension voiced by the deceased to her mother a day before the occurrence as alleged by the prosecution. The learned Counsel also placed credence upon the suicide note allegedly written by the deceased, a copy of which has been annexed as Annexure 3 to the affidavit in support of the bail application which note, according to the learned Counsel, does not reflect even a vestige of dowry related incident of cruelty or harassment. Inviting the attention of the Court to the contents of the case diary, a copy of which was produced by the learned Addl. Government Advocate, the learned Counsel for the applicant urged that the theory about the demand for dowry and dowry related cruelty or harassment is mere concoction in order to paint the accused in a most lurid colours in that even the inquest report and the conduct of the father of the deceased and that of Ghanshyam Sharma, who was also a witness to the inquest report, do not give prop to the prosecution case.

I have bestowed my anxious consideration to the submissions made by the learned Counsel. It cannot be repudiated that the conduct of the accused before or after the occurrence would be relevant as per illustration (k) to Section 14 of the Evidence Act. Similarly, evidence on personal traits and evidence showing socio-economic and psycho-social problems, if any, of the deceased would be relevant to the question whether suicide was committed in a moment of emotional disharmony caused due to reasons other than the reason of dowry related maltreatment.

It goes without saying that relevancy of evidence is not to be confused with reliability thereof. Admissibility of evidence is a matter of law while reliability comes within the domain of appreciation. The Court may take into consideration the evidence, if any, on the factors aforestated and come to the conclusion as to whether the presumption raised by Section 113A and 113B of the Evidence Act has been rebutted by the accused. No conclusive/decisive opinion can be expressed at this stage about the prosecution version regarding cruelty or harassment for or in relation to the demand for dowry. However, regard being had to the facts and circumstances of the case, I am of the view that the applicant has succeeded in making out a case for hail inasmuch as it cannot be said at this stage, with mathematical certainty, that it was a dowry related suicide and/or there are reasonable ground for believing that the circumstances are consistent with the guilt of the applicant for the offence u/s 304B, I.P.C. In the result, the applicant deserves to be enlarged on bail. The Court, it may be observed, is conscious of the solicitude of the Parliament in enacting more stringent provisions relating to dowry death obviously with a view to arresting the ever-expanding growth of dowry related malaise in the society but the penal provisions alone sans ''Dharma'' consciousness would not achieve the desired result. "Dharma". a comprehensive term which includes law, religion, morality, righteousness, duty, benevolence, etc. is considered the primary virtue in Indian culture. It is defined as that which sustains society, and is regarded as the highest social values on which are to be based the other two social values of artha (wealth) and Kama (pleasure) and the trans-social value of moksh. Sri Krishna declares in the Bhagvad-Gita (VII. II): ''dharmaviruddho bhutessu Kamosmi''--I am pleasure unopposed to dharma. [See the Cultural heritage of India Vol. I.P. 166). In my opinion, the problem is how to make the people value conscious. It cannot be gainsaid that subjecting a woman to cruelty for, or in connection with, any demand for dowry not only attracts the Indian Penal Code but violates human right and human dignity as well but such a conduct is mainly due to irrational approach to social values of wealth and pleasure and lack of awareness to human dignity. Creative role of social organisation in this direction, would be more fruitful.

In view of the foregoing discussion, the applicant is ordered to be released on bail. Let the applicant Nanhey Lal involved in case crime No. 334 of 1996 under Sections 498A and 304B, I.P.C. and 3/4 of Dowry Prohibition Act, P.S. Mutthiganj, District Allahabad, be enlarged on bail on his furnishing a personal bond In the sum of Rs. 10,000 with two sureties each In the like amount to the satisfaction of the C.J.M., Allahabad.