SUPREME COURT OF INDIA
Kailash
Vs
State of Madhya Pradesh
Appeal (Crl.) 1027 of 2006 (Arising Out of Slp (Crl.) No. 5592 of 2005)
(Arijit Pasayat and L. S. Panta, JJ)
09.10.2006
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a learned single Judge
of the Madhya Pradesh High Court at Jabalpur dismissing the appeal of the
appellant and maintaining his conviction and sentence as recorded by the trial
Court.
Appellant faced trial for alleged commission of offences punishable under
Section 498-A and 304-B of the Indian Penal Code, 1860
(in short the 'IPC') relatable to the death. He was found guilty by the trial
Court and was sentenced to undergo rigorous imprisonment for ten years for the
offence relatable to Section 304-B IPC but no separate sentence was imposed for
the offence relatable to Section 498-A IPC though he was found guilty of the
said offence. Smt. Shyam Bai who faced trial with the appellant was acquitted
by the trial Court.
Prosecution case in a nutshell is as follows:
Appellant got married with the deceased on 4.5.1997. Acquitted accused Smt.
Shyam Bai is the aunt of appellant. In the wee hours of 18.3.1999 the dead body
of deceased was found floating in a well located in the house of the appellant.
Thus, the death of Uma Devi occurred otherwise then under normal circumstances.
The deceased was subjected to cruelty or harassment by her husband and
acquitted accused in connection with demand for dowry.
Inquest was conducted and the dead body of Uma Devi was sent for post mortem
examination. The post mortem examination was conducted by Dr. R.G. Kotia (PW1)
who found an anti-mortem lacerated wound on occipital region of the body and
blood was oozing out from the wound. Dr. Kotia opined that cause of death of
Uma Devi was asphexia due to drowning. In his opinion approximate time of death
was within 12 to 24 hours of the post-mortem examination. Ex.P-1 is the report
of Dr. Kotia. During investigation a rope and one steel gund were recovered
from the spot. Jamuna Prasad (PW- 3), Mainda Bai (PW4), Desh Raj (PW5) Sheel
Kumar (PW6), Parwati (PW7), Mukundi (PW8) and Dashrath (PW9) were examined to
prove the dowry demand, harassment and torture. Placing reliance on their evidence,
trial Court convicted the appellant. Matter was carried in appeal before the
High Court. Before the High Court, it was contended that the evidence was not
sufficient to prove the dowry demand, torture or harassment. The High Court did
not accept the plea and affirmed the conviction and sentence.
In support of the appeal learned counsel for the appellant submitted that the
evidence of the witnesses who were examined to prove alleged dowry demand,
torture and harassment, is not sufficient to prove commission of offence by the
appellant. It is full of exaggerations and trial Court and the High Court
should not have placed reliance on them. It was submitted that the sentence, as
imposed, is high. With reference to the material on record it is submitted that
the accused has already undergone nearly eights years of the sentence.
Learned counsel for the respondent-State on the other hand supported the order.
On reading of the evidence of the witnesses who have spoken about dowry demand,
torture and harassment nothing substantially discrepant can be noticed. The
witnesses, though cross-examined at length, stated in clear terms about the
dowry demand, the torture and the harassment. In that view of the matter the
trial Court and the High Court was justified in holding the accused guilty.
In Kans Raj v. State of Punjab a three-Judge Bench of this Court dealt
with the presumption available in terms of Section 113-B of the Evidence Act,
1872 (in short "the Evidence Act") and its effect on finding persons
guilty in terms of Section 304-B IPC. It was noted as follows: (SCC p. 217,
para 9)
"9. 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 304-B. 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 soon
before her death."
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 304-B. 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 soon
before her death.
No presumption under Section 113-B of the Evidence Act would be drawn against
the accused if it is shown that after the alleged demand, cruelty or harassment
the dispute stood resolved and there was no evidence of cruelty or harassment
thereafter. Mere lapse of some time by itself would not provide to an accused a
defence, if the course of conduct relating to cruelty or harassment in
connection with the dowry demand is shown to have existed earlier in time not
too late and not too stale before the date of death of the victim. This
is so because the expression used in the relevant provision is "soon
before". The expression is a relative term which is required to be considered
under specific circumstances of each case and no straitjacket formula can be
laid down by fixing any time- limit. The expression is pregnant with the idea
of proximity test. It cannot be said that the term "soon before" is
synonymous with the term "immediately before". This is because of
what is stated in Section 114 Illustration (a) of the Evidence Act. The
determination of the period which can come within the term "soon
before" is left to be determined by the courts, depending upon the facts
and circumstances of each case. Suffice, however, to indicate that the
expression "soon before" would normally imply that the interval
should not be much between the cruelty or harassment concerned and the death in
question. There must be existence of a proximate and live link [see Hira Lal v.
State (Govt. of NCT), Delhi.
The factual position of the present case goes to show that the death was not in
normal circumstances. The expression "normal circumstances"
apparently means natural death. In other words the expression "otherwise
than under normal circumstances" means death not being in the usual course
but apparently under suspicious circumstances if not caused by burns or bodily
injury. This position was noted before this Court in Shanti v. State of Haryana
These aspects were highlighted in Thakkan Jha v. State of Bihar 2004 (13)
SCC 348.
The conviction as maintained by the High Court needs no interference. Coming to
the question of sentence, on considering the background facts, it would be
appropriate to reduce the custodial sentence to eight years which the appellant
claims to have undergone including remissions. If the appellant had already
undergone custodial sentence including remission for eight years, he shall be
immediately released from custody unless required to be in custody in
connection with any other case.
The appeal is partly allowed so far as it relates to quantum of sentence.