Prasadi Sahu vs State of Orissa

S.K. Mishra, J.—In this Appeal, the convict Prasadi Sahu assails his conviction under Section 304-B read with Section 498-A of the I.P.C. and

sentencing him to undergo rigorous imprisonment for ten years and further sentencing him to undergo rigorous imprisonment for a period of one

year and to pay a fine of Rs. 1000/- under Section 4 of the Dowry Prohibition Act, to undergo rigorous imprisonment for two years and to pay

fine of Rs. 1000/- for the offence under Section 498-A of the I.P.C. as per the judgment passed by the learned Addl. Sessions Judge, Sambalpur

dated 17.09.2009 passed in S.T. No. 90/01 of 2008-09.

The case of the prosecution in short is that the informant lodged an F.I.R. stating that his sister (hereinafter referred as the ""deceased"") was given

marriage to the accused three/four years back from the date of the F.I.R. and she was being tortured by the accused in furtherance of demand of

dowry and on 25.09.2007, the accused sent message to their house to give the dowry money lest the deceased would be killed. On the date of

lodging of the F.I.R. when he came, he saw that the deceased has been killed by the accused, his father-in-law and other in-laws by beating her.

The F.I.R. was received at 2.30 A.M. on 26.09.2007 as revealed from the endorsement of the registering officer. Then the investigation was taken

up and the charge-sheet has been filed on 17.05.2008 for the commission of offences under Sections 498-A, 302, 304-B of the I.P.C. and

Section 4 of the Dowry Prohibition Act.

The accused took the plea of complete denial.

In order to prove its case, the prosecution examined as many as 26 witnesses and exhibited 14 documents, but no material objects were led into

evidence. Amongst the prosecution witnesses, two witnesses namely P.W. 1 the informant, P.W. 2 the father of the deceased and P.W. 3 the

mother of the deceased are important witnesses, who deposed about the dowry torture meted out to the deceased and possible connection of the

dowry torture and consequent death of the deceased. P.Ws. 20 and 21 are Doctors, who have conducted postmortem examination on the dead

body of the deceased. P.Ws. 12, 13, 15, 16, 17 and 19 are the co-villagers of the accused. Other witnesses are formal witnesses.

The defence has not examined any witness but marked one exhibit as Ext. A, i.e. the endorsement of P.W. 11 on the Inquest Report.

After analysing the evidence led by the prosecution in the evidence, learned Addl. Sessions Judge, Sambalpur came to the conclusion that

offence under Section 302 of the I.P.C. has not been established. However, he held that offence under Sections 498-A, 304-B of the I.P.C. and

Section 4 of the Dowry Prohibition Act has been established beyond all reasonable doubts and therefore, he proceeded to convict the accused,

who happens to be the husband of the deceased, and sentenced him as stated above. In course of hearing, learned counsel appearing for the

appellant argued that the essential ingredients for establishing commission of offence under Section 304-B of the I.P.C. have not been made out,

inasmuch as, the findings given by the learned Additional Sessions Judge are based on conjecture and surmises and soon before the death of the

deceased she was not subjected to any dowry torture or otherwise.

In order to bring home the charge under Section 304-B of the I.P.C., prosecution must prove three essential ingredients; they are that (i) the

death is within seven years of her marriage; (ii) the death of the deceased was otherwise than the normal circumstances, which may include

homicide and suicide; and (iii) the third and most vital ingredient is that the prosecution must establish that the deceased was subjected to cruelty in

connection with the demand for dowry or that she was put to torture and ill-treatment etc. for dowry by her husband or his other relations soon

before the death.

In this case, having gone through the judgment carefully and having perused the evidence of witnesses, this Court is of the opinion that the very

approach of the learned Addl. Sessions Judge is erroneous. It is not disputed that the death of the deceased was within seven years of her

marriage, but as far as her unnatural death is concerned, case of the prosecution is that she was poisoned or she took poison to commit suicide.

From the evidence of P.Ws. 20 and 21, it is apparent that cause of the death was most probable due to intra cranial hemorrhage and they found

swelling over the forehead and scalp of the frontal bone. Furthermore, P.W. 20 in his cross-examination has admitted that poisoning of the

deceased cannot be ruled out, at the same time, P.W. 21 has stated that he has not found any symptoms of poisoning during the postmortem

examination and said that the death cannot be due to poisoning and also has denied to the said suggestion of the defence. P.W. 20 has stated that

the death is homicidal in nature, or can be accidental.

Taking this into consideration, statements of two doctors and the P.Ws. 11, 12 15 and 18, who have stated that the deceased was trembling out

of pain and dashing her head and legs and was rolling on the ground, he disbelieved the evidence of both the doctors P.Ws. 20 and 21. At page

21 in the later portion of paragraph 30, the learned Addl. Sessions Judge has held as follows:

xxx No witness has stated to have seen the assault made by the accused upon the deceased. So, after very careful analysis of the evidences

available, I come to the opinion that the deceased might have taken poison and after taking poison, out of pain, she rolled and dashed her head out

of severe pain or in a semi-conscious state which might have been hit against any bamboo/wooden pillar or hard surface causing the injuries on her

forehead as detected in the P.M. Report. So, from the aforesaid analysis, either the deceased has been died accidentally or by suicide. When most

of the witnesses, who have seen the deceased just prior to her death, have consistently stated that the deceased committed suicide taking poison

which is supported by the contents of the Inquest Report, particularly by the opinion under Ext. A of P.W. 11 and the opinion of P.W. 23

mentioned in that Inquest Report, I come to the conclusion that, though most probable cause of death is the intra-cranial haemorrhage but the

deceased has taken the poison for suicide. xxx

The basic approach adopted by the learned Addl. Sessions Judge is erroneous in view of the fact that while deciding a criminal case when a

major punishment is likely to be inflicted on the convict, in case of conviction, it is the duty of the Court to carefully examine the evidence and see if

a particular ingredient has been established by the prosecution beyond all reasonable doubt and there is no scope of conjecture and surmises in

such situation. The evidences of P.Ws. 20 and 21 are categorical about the death of the deceased because of intra-cranial hemorrhage. In such

situation, learned Addl. Sessions Judge should not have held that the death of the deceased is due to suicidal poisoning. In this case, prosecution

has not examined anybody who has seen that the deceased has taken poison. Only because she was behaving in certain manner it was presumed

that she has taken poison. From the evidence of P.W. 21 it has come up that he saw no symptoms of poisoning and the viscera was not preserved

for chemical and serological examination and no chemical and serological examination was conducted to find out that if the cause of death of the

deceased was due to poisoning. As such, the finding recorded by the learned Addl. Sessions Judge is clearly erroneous and cannot be sustained.

As far as the ingredients of torture of the deceased in connection with the demand for dowry soon before her death, the learned Addl.

Sessions Judge has taken into consideration the statement of P.Ws. 1, 2 and 3. P.Ws. 1, 2 and 3 have stated that the deceased had reported

before them after the marriage that the accused was beating her demanding money and dowry and for that he was torturing her and due to

nonpayment of the demanded money, the accused assaulted the deceased. It is also revealed from their statements including the statement of P.W.

14 that due to demand of dowry and assault made by the accused, village meetings were convened in the house of the accused in which, the

accused has regretted and promised not to make any further demand of dowry and torture to the deceased. P.W. 1 has stated in her evidence that

one day prior to the death of the deceased the last village meeting was convened when P.Ws. 2 and 3 have stated that the last village meeting was

convened within one month from the death of death of the deceased. P.W. 1 has further denied that he had not stated so before the Investigating

Officer when his statement under section 161 Cr.P.C. was recorded by the Police, which is negated by the Investigating Officer. So from the

evidence of P.Ws. 2 and 3, it is clear that the last meeting that was convened was within one month from the date of death of the deceased. It is

not clear if in those meetings the deceased herself has stated before the villagers and gentlemen that she has been ill-treated and treated with cruelty

for non-payment of demand of dowry. Rather, they have stated that the accused himself has confessed and stated that he shall not do any such

demand in future. Taking into consideration the evidence of P.Ws 1, 2 and 3, learned Addl. Sessions Judge has opined that the last village meeting

was concerned within one month prior to the death of the deceased. So, it is obvious from the evidence of those prosecution witnesses that the

accused was making demand of dowry and had assaulted or tortured the deceased for demand of dowry within one month prior to her death.

Thus referring to the decision reported in (2009) 43 OCR (SC) 720 (Suresh Kumar Singh v. State of U.P.) held that in order to attract the said

provision, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased ''soon

before her death''. There cannot be any doubt or dispute that is a flexible term. Its application would depend upon the factual matrix obtaining in a

particular case. No fix period can be indicated therefore. It, however, must undergo the test known as ''proximity test''. The Supreme Court has

further held that it is necessary for the prosecution to bring on record that the dowry demand was not too late and not too stale before the death of

the deceased.

Learned counsel for the appellant relied upon the reported case of Tarsem Singh v. State of Punjab, AIR 2000 S.C. 1454, wherein the

Supreme Court has quoted with approval of another judgment of the Hon''ble Supreme Court rendered in Harjit Singh v. State of Punjab,

(2006) 1 SCC 463. The Supreme court has held that a legal fiction has been created in the said provision to the effect that in the event it is

established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative; 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"". Noticing the provisions of Section 113-B of the Evidence Act, it was opined that from a conjoint reading of Section 304B of the Indian

Penal Code and Section 113-B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution

is able to establish the circumstances as set out in Section 304B of the Indian Penal Code. The Supreme Court has further held that in the case of

unnatural death of a married woman, the husband could be prosecuted under section 302, Section 304B and Section 306 of the I.P.C. The

distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a

Division Bench of the Hon''ble Supreme Court in Satvir Singh and others v. State of Punjab and another; (2001) 8 SCC 633; wherein it was

held ;

Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is ""at any time

after the marriage. The third occasion may appear to be an unending period. But the crucial words are ""in connection with the marriage of the said

parties"". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in

connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses.

For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments

are not enveloped within the ambit of ""dowry"". Hence the dowry mentioned in Section 304B should be any property or valuable security given or

agreed to be given in connection with the marriage.

It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked.

But it should have happened ""soon before her death."" The said phrase, no doubt, is an elastic expression and can refer to a period either

immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that

expression. The legislative object in providing such a radius of time by employing the words ""soon before her death"" is to emphasise the idea that

her death should, in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus

between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or

cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the

immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that

particular case was sufficient to snuff its cord from the concept ""soon before her death"".

Applying this principle, this Court comes to the conclusion that there is no evidence of torture within one month of her death or around one

month before her death. There is no evidence that the torture led to death. The only evidence is there was a meeting in the village on the allegation

of dowry demand and torture before one month, approximately, prior to the death of the deceased. It cannot be said that there is a probability in

this case that before the death there was dowry torture on the deceased. The time lag is so wide that this Court is not in a position to come to a

definite conclusion that the dowry torture is ""soon before"" her death. In other words, there appears to be no perceptible nexus between her death

and the dowry related cruelty inflicted upon her. Accordingly, this Court comes to the conclusion that all the ingredients are not satisfied in this

case. Hence, the conviction under section 304-B of the I.P.C. cannot be sustained.

As far as offences under Section 498-B of the I.P.C. and Section 4 of the Dowry Prohibition Act are concerned, learned counsel for the

appellant did not advance any argument. On the basis of the materials on record, this Court is of the opinion that it has been established beyond

reasonable doubt that there was ill-treatment to the deceased before her death and the offences under Section 498-A of the I.P.C. and Section 4

of the Dowry Prohibition Act are held to be established beyond all reasonable doubt and this court is not inclined to interfere with the conviction of

the appellant on those counts.

In the result, the appeal is allowed in part. The conviction and order of sentence of the appellant for the offence under Section 304-B of the

I.P.C. are hereby set aside. He is acquitted from the said charge. However, the conviction for commission of the offences under section 498-A

and Section 4 of the Dowry Prohibition Act are sustained without any change in the sentence. The period undergone shall be set up against the

substantive sentence and the petitioner shall be released after suffering the default sentence in both the above offences. With the aforesaid

observation, the Criminal Appeal is allowed in part.