THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT. 12 Nov. 2013- Registration of FIR by police in cognizable offence is must and action must be taken against officials for not lodging a case on the complaint filed in such offences.- Supreme Court.(PTI) 09/11/2013: Supreme Court stayed Gauhati High Court order that declared CBI as unconstitutional. 06-11-2013 -"while we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946"-GUWAHATI HIGH COURT
SUPREME COURT OF INDIA JUDGEMENTS


Print Judgement
 
Judgement:
                   CASE NO.: Appeal (crl.) 688-90 of 1993 PETITIONER: KANS RAJ Vs. RESPONDENT: STATE OF PUNJAB & ORS. DATE OF JUDGMENT: 26/04/2000 BENCH: G.B. Pattanaik, R.P. Sethi, & Shivaraj V. Patil. JUDGMENT: SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J Sunita Kumari married on 9th July, 1985 was found dead on 23rd October, 1988 at the residence of her in-laws at Batala in Punjab. The death was found to have occurred not under the ordinary circumstances but was the result of the asphyxia. On post-mortem it was found that the deceased had injuries on her person including the ligature mark 20 cm x 2 cm on the front, right and left side of neck, reddish brown in colour starting from left side of neck, 2 cm below the left angle of jaw passing just above the thyroid cartil-age and going upto a point 2 cm below the right angle of jaw. The parents of the deceased were allegedly not informed about her death. It was a shocking occasion for Ram Kishan, PW5 when he came to deliver some customary presents to her sister on the occasion of Karva Chauth, a fast observed by married women for the safety and long life of their husbands, when he found the dead body of his sister Sunita lying at the entrance room and the respondents were making preparations for her cremation. Noticing ligature marks on the neck of her sister, Ram Kishan PW5 telephonically informed his parents about the death and himself went to the police station to lodge a report Exh.PF. On the basis of the statement of PW5 a case under Section 306 IPC was registered against the respondents. After investigation the prosecution presented the charge-sheet against Rakesh Kumar, husband of the deceased and Ram Piari, the mother-in-law of the deceased. Ramesh Kumar, brother-in-law and Bharti, sister-in-law of the deceased were originally shown in Column No.2 of the report under Section 173 of the Code of Criminal Procedure. After recording some evidence, Ramesh Kumar and Bharti were also summoned as accused. The appellant, the father of the deceased, filed a separate complaint under Section 302 and 304B of the Indian Penal Code against all the respondents. The criminal case filed by the appellant was also committed to the Sessions Court and both the appellant`s complaint and the police case were heard and decided together by the Additional Sessions Judge, Gurdaspur who, vide his judgment dated 28th August, 1990, convicted the respondents under Section 304B IPC and sentenced each of them to undergo 10 year Rigorous Imprisonment. He also found them guilty for the commission of offence under Section 306 and sentenced them to undergo rigorous imprisonment for 7 years besides paying a fine of Rs.250/- each. The respondents were also found guilty for the commission of offence punishable under Section 498A IPC and were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.250/- each. All these sentences were to run concurrently. The respondents herein filed an appeal in the High Court against the judgment of conviction and sentence passed against them by the Trial Court and the appellant, father of the deceased, filed a revision petition against the said judgment praying for enhancement of the sentence to imprisonment for life on proof of the charge under Section 304B of the IPC. Both the appeals and the revision were heard together by a learned Single Judge of the High Court who vide her judgment impugned in this appeal acquitted the respondents of all the charges. The revision petition filed by the father of the deceased was dismissed holding that the same had no merits. Ms.Anita Pandey, learned Advocate appearing for the appellant has vehemently argued that the judgment of the High Court suffers from legal infirmities which requires to be set aside and the respondents are liable to be convicted and sentenced for the commission of heinous offence of dowry death, a social evil allegedly commonly prevalent in the society. She has contended that the judgment of the High Court is based upon conjectures and hypothesis which are devoid of any legal sanction. The High Court is alleged to have not properly appreciated the evidence led by the prosecution in the case which, according to the learned counsel, had proved beyond doubt that the respondents were guilty of the commission of the offences with which they were charged and convicted by the Trial Court. Relying upon the provisions of Section 113B of the Evidence Act, the learned counsel has contended that as the death of Ms.Sunita Kumari had occurred within 7 years of marriage and the prosecution had established her harassment on account of demand of dowry, a legal presumption was to be drawn against the respondents for holding them guilty and sentencing them for the offences committed. Supporting the case of the respondents Shri U.R. Lalit, Senior Advocate appearing for@@ JJJJJJJJJJJJJJJJJJJJJJ them has submitted that there being no direct evidence@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ regarding the cause of the death or circumstances leading to death, particularly in the absence of demand of dowry soon before the death, none of the respondents could be held guilty for the offences with which they were charged, convicted and sentenced by the Trial Court. According to the learned counsel the statements made by the deceased before her death were not admissible in evidence even under Section 32(1) of the Evidence Act and in the absence of demand of dowry immediately before the alleged occurrence no inference or presumption could be drawn against the respondents. We have heard the learned counsel for the parties at length and perused the record. We have also minutely examined the original record of the Trial Court and critically analysed the statements of the witnesses produced by the prosecution. We agree with the learned counsel for the respondents 3 to 5 that his clients, namely, Ramesh Kumar, brother of the husband, Ram Pyari, mother of the husband and Bharti sister-in-law of the husband-accused cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PW Nos.5 and 6 have not brought on record any incriminating circumstance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW5 in his deposition before the Court had stated that "after the marriage Rakesh Kumar, accused raised a demand of Rs.15,000/- for a scooter and refrigerator. We fulfilled that demand by giving Rs.20,000/- to him for scooter and refrigerator..... Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21st September, 1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs.500/-. She apprehended danger to her life in the house of her in-laws and was not willing to go there". He has not referred to any demand of dowry or harassment by the respondents except Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21st September, 1988 has not been produced as a witness in the case. Kans Raj PW6, the father of the deceased stated before the Trial Court that Sunit Kumari had told him that she was being taunted by her mother-in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respecively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prosecution. In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case. We, however, find that there is reliable legal and cogent evidence on record to connect Rakesh Kumar, respondent No.2 with the commission of the crime. There is evidence showing that immediately after his marriage with the deceased the respondent-husband started harassing her for the demand of dowry. We do not find substance in the submission of the learned defence counsel that the statements made before her death by the deceased were not admissible in evidence under Section 32(1) of the Evidence Act and even if such statements were admissible, there does not allegedly exist any circumstance which could be shown to prove that the deceased was subjected to cruelty or harassment by her husband for or in connection with any demand of dowry soon before her death. It is contended that the words "soon before her death" appearing in Section 304B has a relation of time between the demand or harassment and the date of actual death. It is contended that the demand and harassment must be proximately close for the purposes of drawing inference against the accused persons. The offence of "dowry death" was incorporated in the Indian Penal Code and corresponding amendment made in the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Evidence Act by way of insertion of Section 113B vide Act@@ JJJJJJJJJJJJJJJJJJJJJJJJ No.43 of 1986. In fact the Dowry Prohibition Act, 1961 being Act No.28 of 1961 was enacted on 20th May, 1961 with an object to prohibit to giving or taking the dowry. The insertion of Section 304B of the Indian Penal Code and Section 113B in the Evidence Act besides other circumstances was also referable to the 91st Report dated 10th August, 1983 of the Law Commission. In the Statement of Objects and Reasons to Act No.28 of 1961 it was stated: "The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time enures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament, Hence, the present Bill." Realising the ever increasing and disturbing proportions of the evil of dowry system, the Act was again amended by Act No.63 of 1984 taking note of the observations of the Committee on Status of Women in India and with a view to making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity, the Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth in its proceedings and after noting the observations of Pt.Jawaharlal Nehru, recommended to examine the working of Act No.28 of 1961 and after considering the comments received on the Report from the State Governments, Union Territories, Administrations and different administrative Ministries of the Union concerned with the matter, decided to modify the original definition of "dowry" with consequential amendment in the Act. Again finding that the Dowry Prohibition Act, 1961 has not been so deterrent, as it was expected to be, the Parliament made amendments in the Act vide Act No.43 of 1986. In the Statement of Objects and Reasons of the said Act it was stated: "The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act 1984 to give effect to certain recommendations of the Joint Committee of the House of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women`s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amended.
 
                   2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are: (a) The minimum punishment for taking or abetting the taking of dowry under section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand. (b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry. (c) The statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act. (d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees. (e) Offences under the Act are proposed to be made non-bailable. (f) Provisions has also been made for appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women). (g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed. 3. The Bill seeks to achieve the aforesaid objects." The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected to soon before her death. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death. Section 32 of the Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. The phrase "circumstances of the transaction" were considered and explained in Pakala Narayana Swami v. Emperor [AIR 1939 PC 47]: "The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular persons, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant`s) death comes into question". The death referred to in Section 32(1) of the Evidence Act includes suicidal besides homicidal death. Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra [1984 (4) SCC 116] after referring to the decisions of this Court in Hanumant v. State of Madhya Pradesh [1952 SCR 1091], Dharambir Singh vs. State of Punjab[Criminal Appeal No.98 of 1958, decided on November 4, 1958], Ratan Gond v. State of Bihar [1959 SCR 1336], Pakala Narayana Swami (supra), Shiv Kumar v. State of Uttar Pradesh [Criminal Appeal No.55 of 1966, decided on July 29, 1966], Mahnohar Lal v. State of Punjab[1981 Cri.LJ 1373 (P&H)] and other cases held: