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Sec.304 B, 306 498 A I.P.C. and sec.3 &4 of Prohibition of Dowry Act – Mere demand of dowry in absence of cruelty can not fasten any liability = All family members are not liable for Dowry death case under sec.304 B I.P.C. r/w sec.113 B of Evidence Act, Unless it is proved their active role or passive connivance in committing the offence , no presumption could be drawn automatically against all = Bhola Ram …..Appellant Versus State of Punjab …..Respondent = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40958

Sec.304 B, 306 498 A I.P.C. and sec.3 &4 of Prohibition of Dowry Act –  Mere demand of

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

dowry in absence of cruelty can not fasten any liability = All family members are not liable for Dowry death case under sec.304 B I.P.C. r/w sec.113 B of Evidence Act, Unless it is proved their active role or passive connivance in committing the offence , no presumption could be drawn automatically against all =

 

 

 

It is true that there was a demand of dowry of Rs.     10,000/-  which

 

was paid by Nath Ram by borrowing this amount from Nirbhai Singh,  but  that

 

demand was for the purchase of a car for  use  by  Darshan  Ram. 

 

 Under  the

 

circumstances, it can safely be presumed that Darshan Ram  made  the  demand

 

for additional dowry for his benefit. 

 

Bhola Ram may have been a silent or  a

 

passively conniving participant, but there is nothing on record  to  suggest that he had either actively made such a demand or that the  demanded  amount was sought to be utilized for his benefit either directly or indirectly.

 

28.   Similarly, the evidence on record does not show  that  the  demand  of

 

another amount of Rs.30,000/- from Nath Ram just a  fortnight  before  Janki

 

Devi took her life was made by  Bhola  Ram  to  purchase  articles  for  the

 

service station being set up by him and Darshan Ram at  village  Nehianwala.

 

At best, it could be said that this amount was  intended  for  use  for  the joint business venture of Bhola Ram and Darshan Ram. Given that the  earlier demand for additional dowry was made for the benefit of Darshan Ram,  it  is more than likely that this demand was also made by him. In any event,  there is again nothing to suggest that  Bhola  Ram  was  in  any  manner  actively concerned in making the demand directly or indirectly from Nath Ram.

 

29.   Consequently, we do not  find  any  evidence  to  suggest  any  active

 

complicity of Bhola Ram in demanding any  additional  dowry  from  Nath  Ram

 

either for himself or for Darshan Ram or his proposed business venture.

 

30.   Merely making a demand for dowry  is  not  enough  to  bring  about  a conviction under Section 304-B of the IPC.

 

 

 

  In this case, even  assuming  the

 

silent or conniving participation of Bhola Ram in  the  demands  for  dowry, there is absolutely no evidence on record to suggest  that  he  actively  or passively treated Janki Devi with cruelty  or  harassed  her  in  connection with, or for, dowry. 

 

The High Court  has,  unfortunately,  not  adverted  to

 

this ingredient of an offence punishable under Section 304-B of the  IPC  or even considered it.

 

31.   The High Court has relied on the presumption available  under  Section 113-B of the Evidence Act, 1872 to conclude that Janki Devi’s  death  was  a dowry death. 

 

However, this presumption cannot be stretched to implicate  all

 

and sundry in Darshan Ram’s family in demanding additional dowry from  Janki Devi’s family and harassing her and treating her with such cruelty that  she had  to  resort  to  taking  her  life.  

 

As  mentioned  above,  there  is  a

 

possibility of members of  the  family  having  varying  roles,  active  and passive. 

 

Depending on the nature and extent of involvement, a person may  be punished for an offence under Section 498-A or Section 304-B or Section  306 of the IPC or Section 4 of the Dowry Prohibition Act, 1961.  A  dowry  death will not ipso facto suck the husband with all his relatives into the net  of Section 304-B of the IPC.

 

 

 

While

 

these persons may be staying together, it does  not  lead  to  any  positive

 

conclusion that  each  one  of  them  was  actively  involved  in  demanding

 

additional  dowry  from  Janki  Devi  and  also  behaving  in  a  cruel   or

 

humiliating manner towards her resulting in her consuming poison to end  her

 

life. 

 

In cases of this nature which attract a reverse  onus  of  proof,  the

 

least that is expected of the prosecution  to  bring  home  a  charge  under

 

Section 304-B of  the  IPC  is  to  adduce  some  evidence  to  suggestively

 

implicate a relative, in this case,  to  suggestively  implicate  Bhola  Ram

 

both in the demands for additional dowry and harassment  or  cruelty.   

 

Such evidence is not available on record and  so  the  mere  fact  that  all  the

 

members of Darshan Ram’s  family  were  living  together  at  village  Mehma

 

Sarja, would not alter the factual situation.

 

33.    Consequently,  in  the  absence  of  the  prosecution   proving   the

 

ingredients of Section 304-B of the IPC, the initial burden cast on  it  has

 

not been discharged. 

 

Therefore, the presumption under Section 113-B  of  the

 

Evidence Act cannot be attracted.

 

 

 

Conclusion

 

34.   Based on the evidence available on record (or the lack of it) we  have

 

no doubt that the appeal filed by Bhola Ram ought  to  be  allowed.

 

 

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO. 1022 OF 2008

 
Bhola Ram …..Appellant

 

Versus

 

State of Punjab …..Respondent

 
J U D G M E N T

 
Madan B. Lokur, J.
1. The question for consideration is whether the appellant Bhola Ram was
rightly convicted by both the Trial Court and the High Court for having
caused the dowry death of Janki Devi, an offence punishable under Section
304-B and Section 498-A of the Indian Penal Code (IPC). In our opinion,
Bhola Ram deserves an acquittal since there is no evidence inculpating him.

 

 

 

The facts:

 

2. Darshan Ram married Janki Devi on 30th June, 1986 after which they
resided in Darshan Ram’s house in village Mehma Sarja. The couple has a
female child.
3. At the time of their marriage, Janki Devi’s family gave dowry within
their means to Darshan Ram and his family. But according to the
prosecution, his brothers Parshottam Ram and Bhola Ram (the appellant) and
his sister Krishna Devi and mother Vidya Devi demanded more dowry from time
to time.
4. Janki Devi’s family was unable to fulfill the additional demands for
dowry and, according to the prosecution, she was humiliated and cruelly
treated by Darshan Ram’s family for their incapacity. Being unable to face
the harassment, cruelty and humiliation meted out by Darshan Ram’s family,
Janki Devi consumed poison and thereby committed suicide on 6th September,
1989.
5. About one and a half months before her death, a demand for Rs.
10,000/- was made by Janki Devi’s in-laws for the purchase of a car. Janki
Devi’s father PW-2 Nath Ram borrowed this amount from PW-1 Nirbhai Singh
for meeting the dowry demand. The amount was then handed over by him to
Darshan Ram in the presence of other members of his family.
6. Unfortunately, Darshan Ram’s family was not fully satisfied with this
payment. According to the prosecution, about a fortnight before her death,
Janki Devi came to her father and told him that there was a further demand
for an amount of Rs. 30,000/- for purchasing some articles for a service
station proposed to be run by Darshan Ram and Bhola Ram. Thereupon, Nath
Ram accompanied Janki Devi to her matrimonial home and informed Darshan Ram
and the other accused that he would not be able to pay this amount. On
this, Darshan Ram’s family informed him that he should pay the amount
failing which he could take Janki Devi back with him. Nath Ram requested
the family not to insist on the demand and left Janki Devi at her
matrimonial home in village Mehma Sarja.
7. On 3rd September, 1989 PW-3 Des Raj, the brother of Nath Ram’s wife,
informed Nath Ram about Janki Devi being ill-treated on account of Nath
Ram’s inability to meet the additional demand for dowry. Again on 5th
September, 1989 Des Raj informed Nath Ram that Janki Devi wanted to meet
Nath Ram and was weeping in his presence.
8. On receiving this information, Nath Ram went to village Mehma Sarja
along with his brother PW-4 Sukhdev Ram. When they reached the bus stand in
the village they were informed that Janki Devi had consumed poison and had
taken her life, having suffered more than enough cruelty at the hands of
the family of Darshan Ram. Nath Ram and Sukhdev Ram then proceeded to
Janki Devi’s matrimonial home and found her lying there but no one from
Darshan Ram’s family was present in the matrimonial home.
9. Nath Ram then lodged a First Information Report (FIR) in Police
Station Nehianwala. On the basis of the FIR PW-7 Manminder Singh prepared
an inquest report in the presence of Sukhdev Ram. On the next day, that is
7th September, 1989 PW-5 Dr. Tirath Goyal performed an autopsy on the dead
body of Janki Devi. He noted that froth was coming out from her nose and
mouth. Her viscera were sent to the Chemical Examiner who reported that
Janki Devi had died due to having consumed an organo phosphorus insecticide
which was poisonous and sufficient to cause death in the ordinary course of
nature.
10. On the basis of the above details and further investigations, a
charge sheet was filed against Darshan Ram and four members of his family
(including Bhola Ram) under Section 304-B and Section 498-A of the IPC for
causing the dowry death of Janki Devi.
11. The accused pleaded not guilty and were tried by the Sessions Judge
at Bathinda.
Decision of the Trial Judge
12. In his Judgment and Order dated 3rd December, 1991 the Sessions Judge
at Bathinda in Sessions Case No. 35 of 15th May, 1990 held that Section 304-
B of the IPC required the prosecution to establish four ingredients,
namely: (i) the death of a woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances, (ii) such death should
have occurred within seven years of her marriage, (iii) soon before her
death she was subjected to cruelty or harassment by her husband or any
relative of her husband, and (iv) such cruelty or harassment should be for,
or in connection with, any demand for dowry. In the present case, all four
ingredients were established by the prosecution.
13. It was further held that Darshan Ram, Bhola Ram and their mother
Vidya Devi were living together in the same house at village Mehma Sarja
and that they had demanded additional dowry from Janki Devi’s family.
However, Parshottam Ram and Krishna Devi were living separately and they
could not be said to have caused the dowry death of Janki Devi.
Consequently, Parshottam Ram and Krishna Devi were found not guilty of the
charges framed against them and they were acquitted. However, the Sessions
Judge found that Darshan Ram, Bhola Ram and Vidya Devi, by their attitude
and behaviour, caused Janki Devi to take the extreme step of taking her own
life. These three accused were accordingly convicted for offences
punishable under Section 304-B and Section 498-A of the IPC and sentenced
to undergo rigorous imprisonment for a period of 7 years with fine for the
offence under Section 304-B of the IPC and 2 years rigorous imprisonment
for the offence under Section 498-A of the IPC.
14. The accused preferred two appeals (one by Vidya Devi and the other by
Darshan Ram and Bhola Ram) against their conviction and sentence in the
High Court of Punjab and Haryana.
Decision of the High Court
15. In so far as Vidya Devi is concerned, her conviction was upheld by
the High Court and she preferred a Special Leave Petition in this Court.
She was granted special leave to appeal but during the pendency of her
appeal she passed away and accordingly her appeal was disposed of.
16. Darshan Ram and Bhola Ram preferred a joint appeal in the High Court
being Criminal Appeal No. 25 SB of 1992. This appeal was heard by a
learned Single Judge who by his Judgment and Order dated 5th July, 2004
upheld their conviction and sentence.
17. The High Court held that Vidya Devi, Darshan Ram and Bhola Ram were
all residing together in the same house at village Mehma Sarja. It was held
that the amount of Rs. 10,000/- initially taken from Nath Ram was used to
purchase a car for Darshan Ram and that car was being plied as a taxi by
him. It was also held that a service station was at the initial stages of
being established by Darshan Ram and Bhola Ram and that they needed Rs.
30,000/- for expenses in connection with that venture. Since all three
convicts were residing together at village Mehma Sarja, they were equally
responsible for demanding additional dowry from Janki Devi and her father
and thereby compelling her to take her life.
18. It appears that Darshan Ram has not challenged the Judgment and Order
of the learned Single Judge and his conviction and sentence have attained
finality.
19. We are, therefore, only concerned with the appeal filed by Bhola Ram
who challenged his conviction and sentence in this Court and was granted
special leave to appeal on 8th July, 2008. He was also granted bail by
this Court on the same day and we are told that even today, he is on bail.
Discussion
20. Learned counsel for Bhola Ram submitted that in fact there is no
specific allegation against him. The statements of all the witnesses are
omnibus or generic in nature and Darshan Ram and other members of his
family have been generally accused of having demanded additional dowry from
Janki Devi’s family. It is submitted that in the absence of any particular
allegation, demands for dowry made by Darshan Ram cannot be attributed to
Bhola Ram and under these circumstances, there is really no evidence to
uphold his conviction.
21. On the other hand, it was submitted by learned counsel for the State
that the three convicts were jointly and directly concerned with the
demands of additional dowry made on Janki Devi and her family.
Consequently, it is not possible to segregate the case of Bhola Ram from
that of the other two convicts.
22. We are unable to accept the contention of learned counsel for the
State. The Sessions Judge found that there was no evidence that Parshottam
Ram and Krishna Devi made demands for additional dowry from Nath Ram.
Accordingly, they were acquitted at the trial stage itself. Therefore, the
segregation process, based on the evidence on record, had begun at the
trial stage. This is clearly because in a dowry death, some actors play an
active role while others play a passive role. Consequntly, to sustain the
conviction of Bhola Ram, there must be some suggestive evidence and not
generic evidence implicating him in the demand for additional dowry from
Nath Ram.
23. As observed by the Law Commission of India (LCI) in its 91st Report
of 10th August, 1983 (in paragraph 1.8) the truth may not come in a dowry
death case due to the sequestered nature of the offence. This is what the
LCI said:
“Those who have studied crime and its incidence know that once a
serious crime is committed, detection is a difficult matter and still
more difficult is successful prosecution of the offender. Crimes that
lead to dowry deaths are almost invariably committed within the safe
precincts of a residential house. The criminal is a member of the
family; other members of the family (if residing in the same house)
are either guilty associates in crime, or silent but conniving
witnesses to it. In any case, the shackles of the family are so strong
that truth may not come out of the chains. There would be no other eye
witnesses, except for members of the family.”

 

24. This passage also clearly brings out that in a case of a dowry death,
every member of the family may not be fully and equally guilty. The degree
of involvement may differ – as an associate, as a silent witness, as a
conniving witness and so on.
25. So far as this case is concerned, we have gone through the evidence
of all the witnesses on record and while there is no doubt that Janki Devi
died an unnatural death within a few years of her marriage to Darshan Ram,
no definite allegation has been made by any of the witnesses including Nath
Ram or anybody from his family that Bhola Ram had demanded any additional
dowry from him or anybody in his family or had treated Janki Devi with
cruelty or in a humiliating manner so as to make him complicit in the dowry
death.
26. In Kans Raj v. State of Punjab, (2000) 5 SCC 2007 the ingredients of
an offence under Section 304-B of the IPC were held to be as follows:
“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.”

 
27. It is true that there was a demand of dowry of Rs. 10,000/- which
was paid by Nath Ram by borrowing this amount from Nirbhai Singh, but that
demand was for the purchase of a car for use by Darshan Ram. Under the
circumstances, it can safely be presumed that Darshan Ram made the demand
for additional dowry for his benefit. Bhola Ram may have been a silent or a
passively conniving participant, but there is nothing on record to suggest
that he had either actively made such a demand or that the demanded amount
was sought to be utilized for his benefit either directly or indirectly.
28. Similarly, the evidence on record does not show that the demand of
another amount of Rs.30,000/- from Nath Ram just a fortnight before Janki
Devi took her life was made by Bhola Ram to purchase articles for the
service station being set up by him and Darshan Ram at village Nehianwala.
At best, it could be said that this amount was intended for use for the
joint business venture of Bhola Ram and Darshan Ram. Given that the earlier
demand for additional dowry was made for the benefit of Darshan Ram, it is
more than likely that this demand was also made by him. In any event, there
is again nothing to suggest that Bhola Ram was in any manner actively
concerned in making the demand directly or indirectly from Nath Ram.
29. Consequently, we do not find any evidence to suggest any active
complicity of Bhola Ram in demanding any additional dowry from Nath Ram
either for himself or for Darshan Ram or his proposed business venture.
30. Merely making a demand for dowry is not enough to bring about a
conviction under Section 304-B of the IPC. As held in Kans Raj a dowry
death victim should also have been treated with cruelty or harassed for
dowry either by her husband or a relative. In this case, even assuming the
silent or conniving participation of Bhola Ram in the demands for dowry,
there is absolutely no evidence on record to suggest that he actively or
passively treated Janki Devi with cruelty or harassed her in connection
with, or for, dowry. The High Court has, unfortunately, not adverted to
this ingredient of an offence punishable under Section 304-B of the IPC or
even considered it.
31. The High Court has relied on the presumption available under Section
113-B of the Evidence Act, 1872 to conclude that Janki Devi’s death was a
dowry death. However, this presumption cannot be stretched to implicate all
and sundry in Darshan Ram’s family in demanding additional dowry from Janki
Devi’s family and harassing her and treating her with such cruelty that she
had to resort to taking her life. As mentioned above, there is a
possibility of members of the family having varying roles, active and
passive. Depending on the nature and extent of involvement, a person may be
punished for an offence under Section 498-A or Section 304-B or Section 306
of the IPC or Section 4 of the Dowry Prohibition Act, 1961. A dowry death
will not ipso facto suck the husband with all his relatives into the net of
Section 304-B of the IPC.
32. It was contended by learned counsel for the State that Darshan Ram,
Bhola Ram and Vidya Devi were living together at village Mehma Sarja and so
their active involvement in the dowry death cannot be ruled out. While
these persons may be staying together, it does not lead to any positive
conclusion that each one of them was actively involved in demanding
additional dowry from Janki Devi and also behaving in a cruel or
humiliating manner towards her resulting in her consuming poison to end her
life. In cases of this nature which attract a reverse onus of proof, the
least that is expected of the prosecution to bring home a charge under
Section 304-B of the IPC is to adduce some evidence to suggestively
implicate a relative, in this case, to suggestively implicate Bhola Ram
both in the demands for additional dowry and harassment or cruelty. Such
evidence is not available on record and so the mere fact that all the
members of Darshan Ram’s family were living together at village Mehma
Sarja, would not alter the factual situation.
33. Consequently, in the absence of the prosecution proving the
ingredients of Section 304-B of the IPC, the initial burden cast on it has
not been discharged. Therefore, the presumption under Section 113-B of the
Evidence Act cannot be attracted.

 

Conclusion
34. Based on the evidence available on record (or the lack of it) we have
no doubt that the appeal filed by Bhola Ram ought to be allowed. It is
accordingly allowed and he is acquitted of the charges against him under
Section 304-B and Section 498-A of the IPC in relation to the death of
Janki Devi.
35. The appeal is allowed and the conviction and sentence of Bhola Ram is
set aside.
Post script
36. What is a little disturbing about this case is that it is
illustrative of the slow movement of the wheels of criminal justice
delivery. The dowry death took place on 6th September, 1989. The Trial
Court pronounced its decision on 3rd December, 1991 within two years of
Janki Devi’s death. The first appeal was decided by the High Court on 5th
July, 2004 which is more than twelve years later. A petition for special
leave to appeal was filed in this Court in 2004 and leave was granted only
after a gap of four years in 2008. Thereafter this appeal was listed for
hearing as if it is an appeal of 2008 rather than a petition of 2004
thereby wiping away four years of its age in this Court. And even then, it
has taken another five years for its disposal, making a total of nine years
spent in this Court. It is high time those of us who are judges of this
Court and decision makers also become policy makers.

 

….…….……………………..J.
(Ranjana Prakash Desai)

 

 

 

….…….……………………..J.
(Madan B. Lokur)
New Delhi;
November 11, 2013

 

 

 

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