Bachni Devi & Anr vs State Of Haryana Th. Secy. Home Dep

Bachni Devi & Anr. ...Appellants

Versus

State of Haryana

Through Secretary, Home Department ...Respondent

JUDGEMENT

R.M. LODHA, J.

The mother (A-1) and son (A-2) are in appeal as

both of them have been convicted by the Additional Sessions

Judge (I), Kurukshetra for the offence punishable under Section

304B of the Indian Penal Code (IPC) and sentenced to suffer

rigorous imprisonment of seven years. The High Court of

Punjab and Haryana affirmed their conviction and sentence and

did not interfere with the judgment of the trial court.

2. Kanta died within 3 months of her marriage. On

August 11, 1990, she was found dead by hanging from a ceiling

fan in the appellants' house. Kanta hailed from a poor family.

Her father, Pale Ram (PW-8) is a Rikshawpuller. A-2 and

Kanta got married on May 12, 1990. About 20 days prior to

Kanta's death, A-1 had gone to the house of PW-8 and told

him that her son A-2 wanted to start milk vending business and

for that a motorcycle is needed for carrying the milk to the city.

She demanded a motorcycle for A-2 to be purchased by PW-8.

PW-8 did not accede to her demand and told A-1 that he was

not in a position to purchase motorcycle as demanded by her.

A-1 warned PW-8 that if he failed to provide a motorcycle to A-

2, then Kanta would not be allowed to stay in the matrimonial

home. PW-8 called Amar Singh (PW-10) and Mam Chand (DW-

1) to his house and told them about the demand made by A-1.

A-1 reiterated the demand and warning in their presence and

left the house of PW-8.

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3. This was the beginning of Kanta's end. A-1 and A-

2 started harassing and ill-treating her. Some five days prior

to Rakshabandhan, A-2 brought Kanta to the house of PW-8.

A-2 left Kanta there and returned to his house the same day.

Kanta told PW-8 about harassment and ill-treatment being

meted out to her by A-1 and A-2. Three days thereafter, A-2

went to the house of PW-8 and told him that he had come to

take Kanta with him as there was engagement ceremony of his

brother. A-2 assured PW-8 that he would bring Kanta on the

day of Rakshabandhan. Kanta, however, was reluctant in

going with A-2 as she knew that there was no engagement

ceremony at her in-laws place. She had apprehension that if

she went to her matrimonial home, her life would not be spared.

PW-8 persuaded his daughter to go along with A-2 as she has

to spend her entire life with him.

4. On the insistence of her father, Kanta went to her

matrimonial home along with A-2. On the day of

Rakshabandhan, PW-8 and the members of the family waited

for Kanta for whole day but she did not come. After about eight

days i.e. on August 12, 1990, PW-8 was informed by some

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villager that Kanta was dead. PW-8 then went to the house of

A-1 and A-2 along with few persons and saw the dead body of

Kanta lying in a room. It appeared to PW-8 that Kanta's death

had occurred some 2/3 days earlier.

5. Kanta's death having taken place in unnatural

circumstances, PW-8 reported the matter to the police

immediately and a First Information Report (FIR) was registered

on that very day (August 12, 1990) at Police Station Ladwa

under Section 304B IPC. Karnail Chand (PW-11) started

investigation, visited the spot and also sent the dead body of

Kanta for post-mortem. Dr. P.K. Goel (PW-1) conducted

postmortem on the dead body of Kanta. Upon completion of

investigation and after committal, A-1 and A-2 were sent up for

trial under Section 304-B IPC.

6. Besides PW-1, PW-8, PW-10 and PW-11, the

prosecution examined seven other witnesses including the

deceased's mother Premo (PW-9). In defence, the accused

examined DW-1 and Amarjit Kaur (DW-2).

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7. The trial court vide its judgment dated March 6,

1991 held that the prosecution has been able to establish that

the death of Kanta was within seven years of her marriage and

otherwise than under normal circumstances; that before her

death she was subjected to cruelty and harassment by A-1 and

A-2 in connection with the demand of motorcycle and that A-1

and A-2 were guilty of causing dowry death. A-1 and A-2 were

convicted under Section 304-B IPC accordingly and sentenced

to suffer seven years' rigorous imprisonment as noticed above.

The High Court in the appeal preferred by the appellants

concurred with trial court and dismissed their appeal.

8. Mr. V. Madhukar, learned counsel for the appellants

submitted that it was highly improbable that a demand for a

motorcycle would be made from PW-8 knowing well that it could

not be fulfilled by him as he was a Rikshawpuller earning Rs.

20/- per day. He argued that the evidence let in by the

prosecution was not trustworthy at all and the demand for

dowry is not established. He would submit that the only

independent witness of demand was DW-1 but he was not

examined by the prosecution. However, DW-1 was examined

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in defence and he has denied that any demand was made by

A-1 in his presence.

9. Learned counsel for the appellants argued that

there was no evidence of demand of motorcycle by A-2. He

further argued that in any case the demand of motorcycle for

the purposes of the business does not qualify as a `demand for

dowry' and, therefore, no offence under Section 304-B IPC can

be said to have been made out against the appellants. In this

regard, he relied upon a decision of this Court in Appasaheb &

Anr. v. State of Maharashtra1.

10. On the other hand, Mr. Kamal Mohan Gupta,

learned counsel for the State of Haryana, supported the

judgment of the High Court.

11. Section 304B was inserted in IPC with effect from

November 19, 1986 by the Dowry Prohibition (Amendment) Act,

1986 (for short, `(Amendment) Act, 1986'). Thereby substantive

offence relating to `dowry death' was introduced in the IPC.

Section 304-B IPC reads as follows :

"304B. Dowry death.--(1) Where the death of a

woman is caused by any burns or bodily injury or

occurs otherwise than under normal

1 (2007) 9 SCC 721

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circumstances within seven years of her marriage

and it is shown 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.

Explanation.- For the purposes of this sub-

section," dowry" shall have the same meaning as

in section 2 of the Dowry Prohibition Act, 1961

(28 of 1961 ).

(2) Whoever commits dowry death shall be

punished with imprisonment for a term which shall

not be less than seven years but which may

extend to imprisonment for life."

12. For making out an offence of `dowry death' under

Section 304B, the following ingredients have to be proved by

the prosecution:

(a) death of a woman must have been caused by any

burns or bodily injury or her death must have occurred

otherwise than under normal circumstances;

(b) such death must have occurred within seven years

of her marriage;

(c) soon before her death, she must have been

subjected to cruelty or harassment by her husband or any

relative of her husband; and

(d) such cruelty or harassment must be in connection

with the demand for dowry.

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13. Pertinently, for the purposes of Section 304B IPC,

`dowry' has the same meaning as in Section 2 of the Dowry

Prohibition Act, 1961 (for short, `1961 Act').

14. Section 2 of the 1961 Act defines `Dowry' as

follows:

"2. Definition of `dowry'.- "Dowry" means any

property or valuable security given or agreed to

be given either directly or indirectly--

(a) By one party to a marriage to the

other party to the marriage; or

(b) By the parent of either party to a

marriage or by any other person to

either party to the marriage or to any

other person,

at or before or any time after the marriage in

connection with the marriage of the said parties,

but does not include dower or mahr in the case of

persons to whom the Muslim Personal Law

(Shariat) applies.

Explanation I--............(Omitted).

Explanation II--The expression "valuable

security" has the same meaning as in section 30

of the Indian Penal Code (45 of 1860)."

15. 1961 Act was enacted to prohibit the giving or

taking of `dowry' and for the protection of married woman

against cruelty and violence in the matrimonial home by the

husband and in-laws. The mere demand for `dowry' before

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marriage, at the time of marriage or any time after the marriage

is an offence. 1961 Act has been amended by the Parliament

on more than one occasion and by the (Amendment) Act, 1986,

Parliament brought in stringent provisions and provided for

offence relating to `dowry death'. The amendments became

imperative as the dowry deaths continued to increase to

disturbing proportions and the existing provisions in 1961 Act

were found inadequate in dealing with the problems of dowry

deaths. The definition of `dowry' reproduced above would show

that the term is defined comprehensively to include properties

of all sorts as it takes within its fold `any property or valuable

security' given or agreed to be given in connection with

marriage either directly or indirectly. In S. Gopal Reddy v. State

of A.P.2 , this Court stated as follows :

"9. The definition of the term `dowry' under

Section 2 of the Act shows that any property or

valuable security given or "agreed to be given"

either directly or indirectly by one party to the

marriage to the other party to the marriage "at or

before or after the marriage" as a "consideration

for the marriage of the said parties" would

become `dowry' punishable under the Act.

Property or valuable security so as to constitute

`dowry' within the meaning of the Act must

2 (1996) 4 SCC 596

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therefore be given or demanded "as consideration

for the marriage".

..................................................................

11. The definition of the expression `dowry'

contained in Section 2 of the Act cannot be

confined merely to the `demand' of money,

property or valuable security "made at or after the

performance of marriage" as is urged by Mr Rao.

The legislature has in its wisdom while providing

for the definition of `dowry' emphasised that any

money, property or valuable security given, as a

consideration for marriage, "before, at or after"

the marriage would be covered by the expression

`dowry' and this definition as contained in Section

2 has to be read wherever the expression `dowry'

occurs in the Act. Meaning of the expression

`dowry' as commonly used and understood is

different than the peculiar definition thereof under

the Act. Under Section 4 of the Act, mere demand

of `dowry' is sufficient to bring home the offence

to an accused. Thus, any `demand' of money,

property or valuable security made from the bride

or her parents or other relatives by the

bridegroom or his parents or other relatives or

vice versa would fall within the mischief of `dowry'

under the Act where such demand is not properly

referable to any legally recognised claim and is

relatable only to the consideration of marriage.

Marriage in this context would include a proposed

marriage also more particularly where the non-

fulfilment of the "demand of dowry" leads to the

ugly consequence of the marriage not taking

place at all. The expression `dowry' under the Act

must be interpreted in the sense which the statute

wishes to attribute to it...............The definition

given in the statute is the determinative factor.

The Act is a piece of social legislation which aims

to check the growing menace of the social evil of

dowry and it makes punishable not only the actual

receiving of dowry but also the very demand of

dowry made before or at the time or after the

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marriage where such demand is referable to the

consideration of marriage. Dowry as a quid pro

quo for marriage is prohibited .......... .".

16. While dealing with the term `dowry' in Section 304B

IPC, this Court in the case of Kamesh Panjiyar @ Kamlesh

Panjiyar v. State of Bihar3 held as under :

"14. The word "dowry" in Section 304-B IPC has

to be understood as it is defined in Section 2 of

the Dowry Act. Thus, there are three occasions

related to dowry. One is before the marriage,

second is at the time of marriage and the third "at

any time" after the marriage. The third occasion

may appear to be unending period. But the crucial

words are "in connection with the marriage of the

said parties". As was observed in the said case

"suicidal death" of a married woman within seven

years of her marriage is covered by the

expression "death of a woman is caused ... or

occurs otherwise than under normal

circumstances" as expressed in Section 304-B

IPC."

17. Learned counsel for the appellants heavily relied

upon the following observations made by this Court in the case

of Appasaheb1:

"A demand for money on account of some financial

stringency or for meeting some urgent domestic

expenses or for purchasing manure cannot be termed

as a demand for dowry as the said word is normally

understood".

3 (2005) 2 SCC 388

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The above observations of this Court must be understood in the

context of the case. That was a case wherein the prosecution

evidence did not show `any demand for dowry' as defined in

Section 2 of the 1961 Act. The allegation to the effect that the

deceased was asked to bring money for domestic expenses

and for purchasing manure in the facts of the case was not

found sufficient to be covered by the `demand for dowry'.

Appasaheb1 cannot be read to be laying down an absolute

proposition that a demand for money or some property or

valuable security on account of some business or financial

requirement could not be termed as `demand for dowry'. It was

in the facts of the case that it was held so. If a demand for

property or valuable security, directly or indirectly, has a nexus

with marriage, in our opinion, such demand would constitute

`demand for dowry'; the cause or reason for such demand

being immaterial.

18. In the backdrop of the above legal position, if we

look at the facts of the case, it is clearly established that Kanta

died otherwise than under normal circumstances. There is no

dispute of fact that death of Kanta occurred within seven years

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of her marriage. That Kanta was subjected to harassment and

ill-treatment by A-1 and A-2 after PW-8 refused to accede to

their demand for purchase of motorcycle is established by the

evidence of PW-8 and PW-9. Then there is evidence of PW-10

that PW-8 had called him and DW-1 to his house where A-1

had made demand of motorcycle. PW-10 stated that he sought

to reason to A-1 about inability of PW-8 to give motorcycle at

which A-1 got angry and warned that Kanta would not be

allowed to stay in her matrimonial home. It is true that the

appellants produced DW-1 in defence and he did state in his

examination-in-chief that he did not meet A-1 at the house of

PW-8 but in cross-examination when he was confronted with

his statement under Section 161 Cr.P.C. (portion A to A) where

it was recorded that he and PW-10 had gone to the house of

PW-8 and both of them (PW-10 and DW-1) counselled A-1 to

desist from demanding motorcycle but she stuck to her

demand, DW-1 had no explanation to offer. The evidence of

DW-1 is, therefore, liable to be discarded. In light of the

evidence let in by the prosecution, the trial court cannot be said

to have erred in holding that it was established that unlawful

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demand of motorcycle was made by A-1 and A-2 from PW-8

and Kanta was harassed on account of his failure to provide

the motorcycle and that led Kanta to commit suicide by

hanging. Pertinently, the demand of motorcycle by A-1 from

PW-8 was for A-2 and when PW-8 showed his inability to meet

that demand, A-2 started harassing and ill-treating Kanta. In

this view of the matter, it cannot be said that there was no

demand by A-2.

19. The High Court has also examined the matter

thoroughly and reached the finding that A-1 and A-2 had raised

a demand for purchase of motorcycle from PW-8; this demand

was made within two months of the marriage and was a

demand towards `dowry' and when this demand was not met,

Kanta was maltreated and harassed continuously which led her

to take extreme step of finishing her life. We agree with the

above view of the High Court. There is no merit in the

contention of the counsel for the appellants that the demand of

motorcycle does not qualify as a `demand for dowry'. All the

essential ingredients to bring home the guilt under Section

304B IPC are established against the appellants by the

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prosecution evidence. As a matter of law, the presumption

under Section 113B of the Evidence Act, 1872 is fully attracted

in the facts and circumstances of the present case. The

appellants have failed to rebut the presumption under Section

113B.

20. For the foregoing reasons, we find no merit in the

appeal and it is dismissed accordingly. Two months' time is

given to A-1 to surrender for undergoing the sentence awarded

to her.

.................... J.

(Aftab Alam)

.................... J.

(R.M. Lodha)

NEW DELHI,

FEBRUARY 8, 2011.

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