|
Print Judgement
|
|
CORUM-Hon`ble Justice PATTANAIK Hon`ble Justice R.P. SETHI, SHIVARAJ V. PATIL.
|
|
|
|
Judgement Dated:26-Apr-2000
|
|
Criminal Appeal
-688-90 of 1993
|
|
Indian Penal Code, 1860 / Indian Evidence Act, 1972
-Section 304-B, 498-A and 306 IPC
|
|
|
|
KANS RAJ Vs. STATE OF PUNJAB & OTHERS.
|
|
|
|
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:
|
|
|
|
|
|
|