JAGDISH & ORS.versusSTATE OF UTTARANCHAL

•                       [2014] 11 S.C.R. 191


                         JAGDISH & ORS.
                                 v.
                                                                        A

                    STATE OF UTTARANCHAL
                (Criminal Appeal No. 1097 of 2012)
                        NOVEMBER 25, 2014
                                                                        B
          [T.S. THAKUR, ADARSH KUMAR GOEL AND
                     R. BANUMATHI, JJ.]

         Penal Code, 1860: ss. 498A, 3048; Dowry Prohibition Act
    - ss. 3 and 4 - Dowry death - Death by bum injuries - Within        C
    7 years of marriage - Persistent demand of motorcycle and
    cash by husband and family members - A year prior to death,
    in a panchayat, compromise deed also executed wherein
    accused-in-laws undertook to not harass victim-deceased in
    future - Deceased burnt to death - Haste cremation without          o
    waiting for family of the deceased - Courts below held all the
    accused guilty - Husband and parents-in-law died and case
    against them abated - Appeal by father-in-law's brother and
    by brother-in-law and his wife - Held: The brother of the father-
    in-law of the deceased was not staying in matrimonial home          E
    of the deceased - There was no material to show that there
    was persistent demand by him - Mere demand of dowry at
    one or two instances would not attract s. 304-8 - He is liable
    to conviction u/s.498A but not u/s.304-8 - As regard the
    brother-in-Jaw and his wife, they were staying in the same
                                                                        F
    house - Courts below convicted them uls. 304-8 and there was
    no infirmity in the concurrent findings recorded by courts below
    - Their conviction u/ss.498-A and s.304-8 upheld - Evidence
    Act, 1872 - s.1138.

         Partly allowing the appeal, the Court                          G

        HELD: 1. As per the evidence of PW-1-the father of
    the deceased sometime after the marriage, the husband
    'C' and his family members started demanding
                             191                                        H
    ~92    SUPREME COURT REPORTS           [2014] 11 S.C.R. •


A motorcycle and dowry and harassed the deceased. The
  demand of dowry and harassment was communicated by
  the deceased to her father. PW-1 twice went with his
  relatives to the house of 'C' and informed them about his
  poor resources and that he would not be. able to give
B motorcycle. In 1993, the deceased was physically beaten
  and she was taken to the hospital. The demand for
  motorcycle and Rs. 20,000/- continued and in 1994, PW-
  1 lodged a complaint against all the accused alleging
  demand of dowry. In 1994, a Panchayat was convened
c and Ex A-3 compromise deed Vlf<!S executed and all the
  accused signed in the same. lnspite- oTExA•3, the ·cruelty
  and harassment for dowry demand continued. PW-2,
  resident of Village Beherki and a neighbour of PW-1
  corroborated the version of PW-1 in- all the essential
  particulars as to demand of motorcycle and dowry. There
0
  was nothing in cross-examination of PWs 1 and 2 ,to hold
  that they were not reliable witnesses, there is no reason
  to disbelieve them. [Paras 10 to 12] [198-D-F-H; 199-8, C,
  F-H]
E      2. In his statement under Section 313 Cr.P.C, 'C'
  stated thafon 12.5.1995 smoke was coming out from the
  room where firewood was kept and the door was closed
  from inside, roof was cut, entered inside the room and
  they opened the door and that the death of the deceased
F was either an accident or suicide. The theory of accident
  put forth by the defence completely fell through on
  careful analysis of the evidence and the attendant
  circumstances. Had it been an accident or in the manner
  as alleged by the defence, the accused would not have
G hurried with cremation without informing PW-1 about the
  death of the deceased or to the police. As rightly pointed
  out by the courts below, conducting cremation hurriedly
  and burning the dead body of·the deceased without
  informing PW-1 and his relatives is a strong militating
  circumstance against the accused. It came on evidence
H
•      JAGDISH v. STATE OF UTTARANCHAL

that the distance between 8eherki and Churiyala was
about 20-25 kms. As pointed out by the courts below, the
                                                          193


                                                                  A

pyre was lit even before the father and relatives of the
victim arrived. Trial court as well as the High Court upon
appreciation of oral and documentary. evidence accepted
the version of. the prosecution that the deceased was             B
harassed and subjected to cruelty in connection with
non-fulfillment of demand of dowry made by the husband
and in-laws. [Paras· 13, 14] [200-C-H]
     3.Appellant-J is Ta ya i.e. elder brother of father-in•law
of the deceased. Going ,by the eviden·ce of PWs 1 and 2,          C
appellant-J along with other accused also demanded
dowry. A mere demand of dowry at one or two instances
may not attract the provisions of Section 3048 IPC
though such demand might be an offence punishable
under Section 498A IPC. There was no material to show             D
that there was persistent demand of dowry by appellant-
J. In his statement under Section 313 Cr.P.C., first
appellant-J has stated that he has no wife or child and
that he was living separately in Village Churiyala and
even prior to the marriage of 'C'. There was no reason to         E
disbelieve the statement of the first appellant-J. Insofar
as signature of first appellant-J in Ex A-3 compromise
deed was concerned, being elder member of the family
and to ensure peaceful married iife of 'C', he perhaps
might have signed in the compromise deed. Appellant-J             F
stated to be living separately could not have persistently
subjected the deceased to dowry harassment and cruelty
and he is to be acquitted of the charge of 3048 IPC. For
the alleged demand of dowry by the first appellant as
spoken by PWs 1 and 2, he is liable to be convicted under         G
Section 498A IPC. [Paras 15 and 16] [201-A-G]
     4. Appellants 2 and 3 (Y-jeth and S-jethani), during
their questioning under Section 313 Cr.P.C. though they
have stated that they were living separately they did not
produce any ration card or other document to show that            H
    194       SUPREME COURT REPORTS             [2014] 11 S.C.R . •


A they were living separately. In his statement, appellant-J
  had stated that his brother was living with his wife and
  children thereby indicating that the second and third
  appellants were living with deceased's father-in-law as a
  joint family. Upon proper appreciation of evidence, the
B courts below convicted appellants 2 and 3 under Section
  3048 IPC and there was no infirmity in the concurrent
  findings recorded by the Courts below. As re9ards
  sentencing, it was stated that appellants 2 and 3 are
  having a physically handicapped child and they are also
c taking care of the son of deceased. Considering the
  passage of time and the facts and circumstances of the
  case, extreme penalty of life imprisonment is not justified
  and ends of justice would be met by reducing the
  sentence of imprisonment awarded against appellants 2
  and 3 to seven years rigorous imprisonment. [Paras 17,
0
  18] [202-A-E]

        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 1097 of 2012.

E       From the Judgment & Order dated 29.12.2011 of the High
    Court of Uttarakhand at Nainital in Criminal Appeal No. 215 of
    2002.

       V. Giri, Gaurav Kerjriwal, Keshav Mohan, Amrita Narain,
F Aarti Upadhya for the Appellants.

          Pankaj Bhatia, Rachana Srivasatava for the Respondent.

          The Judgment of the Court was delivered by

G      R. BANUMATHI, J. 1. This appeal arises out of judgment
  dated 29.12.2011 passed by High Court of Uttarakhand in
  Criminal Appeal No.215/2002, in and by which, the High Court
  confirmed the conviction of the appellants under Sections 3048,
  498A and 201 IPC and the sentence of life imprisonment
H imposed on each of them.
•       JAGDISH v. STATE OF UTTARANCHAL
                [R. BANUMATHI, J.)
                                                             195


      2. Briefly stated, case of the prosecution is that marriage   A
between complainant-Meharchand's daughter Seema
(deceased) and accused- Late Chandrahas was solemnized
in the month of May 1991. As per his capacity and status, PW-
1-complainant gave sufficient dowry and articles. But within few
days of marriage, Chandrahas alongwith his parents and              B
relatives, started harassing Seema on account of non-fulfillment
of demand of dowry. PW-1- father of the deceased, having
poor resources, was unable to meet these ever increasing
demands. PW-1, repeatedly requested Chandrahas and his
family members not to harass his daughter, but they remained        c
firm in their demands of motorcycle and dowry amount. PW-1
could collect only meagre amount of Rs.2,000/- and gave it to
the family of Chandrahas and requested them not to ill-treat his
daughter.
                                                                    D
      3. Thereafter, in August 1994, the deceased after being
severely beaten, was ousted from her matrimonial home and
she was told that she should only return with Rs.20,000/- cash
and a Hero Honda motorcycle and Seema came to her father's
house. On seeing her condition, PW-1 took the deceased to
                                                                    E
Saharanpur District Hospital, where she was medically
examined and treated for her injuries. On 4.9.1994, with the
intervention of the Panchayat and assurances on the part of
Chandrahas (husband) and his family, the parties arrived at a
settlement and it was decided that Seema was to be taken
                                                                    F
back to her matrimonial house and that they will not torture
Seema. Based on the settlement and the assurance thereon,
PW-1 left Seema in her matrimonial house. However, after one
month, the deceased again wrote a letter to her father
describing the harassment meted out to her. PW-1 was unable
                                                                    G
to visit his daughter immediately on account of the then ongoing
work of crop cutting. On 12. 5. 1995, Subhash Chandra (PW-4)
came to the house of PW-1-Meharchand and informed him that
Seema had been killed ·by her in-laws and burnt to death.
Hearing this, PW-1-Meharchand alongwith some villagers went
                                                                    H
to Churiyala-Chandrahas's villa~e; but there was none at the            _,
A
    196     SUPREME COURT REPORTS                [2014] 11 S.C.R.


    house. On being informed of the incident by the villagers, PW-
                                                                       •
    1 reached the cremation ground and found the pyre still burning.

       4. PW-1-Meharchand lodged a complaint at Police
  Station Bhagwanpur, Village Churiyala, District Haridwar, on
  the basis of which FIR No. 42/95 for the offences under
8
  Sections 498A, 3048 IPC and Sections 3 and 4 of the Dowry
  Prohibition Act was registered against all the persons namely
  Chandrahas-Husband, Sukhbir-father-in-law, Jagdish~elder
  brother of Sukhbir, Yogendra (jeth)- elder brattier of
C Chandrahas, Chandraprakash-Dewar (brother-in-law), Pushpa-
  mother-in-law and Savita (Jethani)- wife of Yogendra. After due
  investigation, chargesheet was filed against all of them.

        5. To bring home the guilt of the accused, prosecution has
  examined eight witnesses and exhibited documents and
D material objects. Sessions Court found all the accused persons
  guilty under Sections 3048, 498A and 201 IPC and sentenced
  each of the accused to undergo life imprisonment under
  Section 3048, two years rigorous imprisonment under Section
  498A and two years rigorous imprisonment under Section 201
E IPC. Being aggrieved, appellants Jagdish-elder brother of
  Sukhbir, Yogendra-elder brother of Chandrahas, and Savita-
  wife of Yogendra filed an appeal before the High Court of
  Uttarakhand. Husband of the deceased-Chandrahas and his
  parents, namely, Sukhbir and Pushpa have all passed away and
F the case against them abated. High Court confirmed the
  conviction and sentence imposed on the accused-appellants
  and dismissed the appeal. This appeal assails the correctness
  of the judgment of the High Court affirming appellants'
  conviction and the sentence of imprisonment imposed on them.
G
        6. Mr. V. Giri learned Senior Counsel for the appellants
  contended that to raise presumption under Section 1138 of the
  Evidence Act, prosecution has to prove that there was demand
  of dowry and that cruelty and harassment was meted out to the
H deceased 'soon before her death'. It was submitted that none
•       JAGDISH v. STATE OF UTTARANCHAL
                [R. BANUMATHI, J.]
of the witnesses deposed about the involvement of the
                                                            197


                                                                   A
appellants and there is no reliable evidence to establish the
essential ingredients of Section 304B IPC or to justify invoking
presumption under Section 113B of the Evidence Act. It was
contended that the appellants are living separately and they
were only witnesses to the compromise Ex A-3 and are in no         B
way connected with the day to day family life of Seema and
Chandrahas and the courts below erred in convicting the
appellants under Sections 304B, 498A and 201 IPC.

     7. Mr. Pankaj Bhatia, learned Counsel for the respondent      c
submitted that the prosecution has adduced overwhelming
evidence to prove that Seema was subjected to harassment
and cruelty 'soon before her death' and upon appreciation of
evidence, courts below by concurrent findings rightly convicted
the appellants and the impugned judgment does not suffer from      0
any infirmity.

    8. We have carefully considered the submissions and
gone through the impugned judgment and the evidence and
materials on record.
                                                                   E
      9. Where the death of a woman caused by burns or bodily
injuries occurs otherwise than under normal circumstances
within seven years of her marriage and evidence reveals that
'soon before her death' she was subjected to cruelty or
harassment by her husband or any of his relatives for or in        F
connection with any demand for dowry, such death is described
as 'dowry death' under Section 304B IPC for which the
punishment extends to imprisonment for life but not less than
imprisonment for seven years. By virtue of Section 113B of the
Evidence Act, the Court has to raise a presumption of 'dowry       G
death' if the same has taken place within seven years of
marriage and there is evidence of the woman having been
subjected to cruelty and/or harassment. It must be remembered
that cruelty and harassment on a married woman and demand
of dowry are generally committed within the four walls of          H
A
    198      SUPREME ):;OURT REPORTS             [2014] 11 S.C.R.


  residential houses and in secrecy, thereby making it difficult to .
                                                                            •
  get direct evidence. That is why the legislature by introducing
  Section 1138 in the Evidence Act tried to strengthen the
  prosecution case by enabling the Court to raise the
  presumption if certain basic facts are established and that
8 death has taken place within seven years of marriage.
  Considering the scope of Section 3048 IPC and presumption
  under Section 1138 of the Evidence Act, due weightage is to
  be given to the evidence of the father, brother, sister and other
  relatives of the deceased with regard to the case put forth
C relating to demand of dowry.
          10. In the instant case, deceased Seema was married to
    Chandrahas in the month of May 1991. From the said wedlock,
    a male child was born in 1993. Seema died in the month of
    May 1995. PW-1-the father of the deceased, Meharchand, at
D   the time of his daughter's marriage had given the dowry and
    other articles as per his capacity and status. As per the
    evidence of PW-1 sometime after the marriage, Chandrahas
    and his family members started demanding motorcycle and
    dowry and harassed Seema. The demand of dc.,rv and
E   harassment was communicated by Seema to her father. PW-
    1, Meharchand had taken his relatives to the house of
    Chandrahas and informed them about his poor resources and
    that he will not be able to give motorcycle. After that,
    complainant-PW-1 received a letter from his daughter Seema
F   to bring money or otherwise her husband and in-laws would kill
    her. Again PW-1 Meharchand took his relatives to the Village
    Churiyala and requested Chandrahas and his family members
    not to harass his daughter. In his evidence PW-1 stated that
    the accused Jagdish, Yogendra and Savita demanded
G   motorcycle and persisted in their demands. PW-1 could only
    arrange Rs.2,000/- and requested Chandrahas and other
    accused not to harass Seema; but it was of no avail. In 1993,
    Seema was physically beaten and she was taken to the District
    Hospital Saharanpur. PW-6-Dr. RK. Verma had noticed three
H   injuries on the body of Seema viz., on the left side of head, on

                                                                    I
                                                                        I
•      JAGDISH v. STATE OF UTTARANCHAL
               [R. BANUMATHI, J.]
                                                            199


back of the chest lower part and complain of pain on front of      A
chest of abdomen and issued Wound Certificate Ex A-8. PW-
6-Dr. R.K. Verma opined that the injuries could .have been
caused by blunt object.

     11. The demand for motorcycle and Rs. 20,000/- continued      B
and in 1994, PW-1 lodged a complaint against all the accused
alleging demand of dowry and that Seema was subjected to
cruelty. In 1994, a Panchayat was convened in Churiyala
Village and Ex A-3 compromise deed was executed and all the
accused signed in the same. Ex A-3, compromise deed refers         c
to complaint lodged by PW-1-Meharchand for beating, torturing
and harassing Seema regarding dowry demand and issuance
of notice by family of Chandrahas against Meharchand. As per
the terms of the compromise, Chandrahas and his family has
to deposit Rs.50,000/- in the name of Seema as security            0
amount and after so depositing the amount in her name,
accused can take back Seema and all the accused agreed
and had undertaken that Seema would not be harassed or
tortured. The appellants and all the accused have signed Ex
A-3, compromise deed. In terms of Ex A-3, Rs.50,000/- was
                                                                   E
to be deposited in the name of Seema and after depositing
the same, she was taken back to the matrimonial house. Ex
A-3, compromise deed dated 4.9.1994 is a material evidence
substantiating prosecution case. lnspite of Ex A-3, compromise
deed and the assurance, the cruelty and harassment for dowry
                                                                   F
demand continued.

      12. PW-2 Rikhiram, resident of Village Beherki and a
neighbour of PW-1 corroborated the version of PW-1 in all the
essential particulars as to demand of motorcycle and dowry.
PW-2 stated about demand of dowry by the accused and the           G
letter written by Seema alleging cruelty by the accused and also
about the convening of Panchayat and Ex A-3-compromise
deed. There is nothing in cross-examination of PWs 1 and 2
to hold that they are not reliable witnesses, there is no reason
to disbelieve them.                                                H
                                                                       I.,_
A
    200     SUPREME COURT REPORTS               (2014] 11 S.C.R.


        13. There is overwhelming evidence that there was
                                                                     •
  demand of dowry and that Seema was subjected to physical
  violence and cruelty. When the essential ingredient that the
  victim was subjected to cruelty or harassment in connection with
  demand for dowry 'soon before her death·' is proved,
B presumption under Section 1138 of the Evidence Act has to
  be invoked. When such presumption is raised, it is for the
  accused to rebut the presumption by adducing cogent
  evidence. In his statement under Section 313 Cr.P.C, late
  Chandrahas (husband of the deceased) stated that on
C 12.5.1995 smoke was coming out from the room where
  firewood was kept and the door had been closed from inside,
  roof was cut, entered inside the room and they opened the door
  and that the death of Seema was either an accident or suicide.
  The theory of accident put forth by the defence completely falls
o through on careful analysis of the evidence and the attendant
  circumstances. Had it been an accident or in the manner as
  alle~d by the defence, the accused would not have hurried with
  cremation without informing PW-1-Meharchand about the
  death of Seema or to the police? There was no reason for the
E accused to hurriedly conduct the cremation without even waiting
  for the victim's father and furthermore without lodging a
  complaint.

        14. As rightly pointed out by the courts below, conducting
  cremation hurriedly and burning the dead body of Seema
F without informing PW-1-Meharchand and his relatives is a
  strong militating circumstance against the accused. It has come
  on evidence that the distance between Beherki and Churiyala
  is about 20-25 kms. As pointed out by the courts below, the
  pyre was lit even before the father and relatives of the victim
G arrived. Trial court as well as the High Court upon appreciation
  of oral and documentary evidence accepted the version of the
  prosecution that Seema was harassed and subjected to cruelty
  in connection with non-fulfillment of demand of dowry made by
  the husband and in-laws.
H
•        JAGDISH v. STATE OF UTTARANCHAL
                 [R. 8ANUMATHI, J.)
                                                              201


        15. First appellant-Jagdish is Taya i.e. elder brother of     A
   father-il)-law of Seema. To prove the guilt of the appellant-
   Jagdish prosecution relied upon:- (i) the evidence of PWs 1 and
   2 that Jagdish also demanded dowry; (ii) Jagdish also signed
   in the memo of compromise. To attract the provisions of
   Section 3048 IPC, the deceased must have been subjected            8
   to cruelty or harassment for or in connection with dowry 'soon
   before her death'. Going by the evidence of PWs 1 and 2,
   appellant-Jagdish along with other accused also demanded
   dowry. A mere demand of dowry at one or two instances may
   not attract the provisions of Section 3048 IPC though such         C
   demand might be an offence punishable under Section 498A
    IPC. There is no material to show that there was persistent
1' demand of dowry by appellant-Jagdish.

i      16. In his statement under Section 313 Cr.P.C., first          0
  appellant-Jagdish has stated that he has no wife or child and
  that he is living separately in Village Churiyala and that his
  brother Sukhbir was living with his wife and children.· First
  appellant has further stated that he has been living separately
· even prior to the marriage of Chandrahas and that he has his
                                                                      E
  own food prepared. We find no reason to disbelieve the
  statement of the first appellant- Jagdish. Insofar as signature
  of first appellant-Jagdish in Ex A-3 compromise deed is
  concerned, being elder member of the family and to ensure
  peaceful married life of Chandrahas, first appellant perhaps
                                                                      F
  might have signed in the compromise deed. The first appellant
  who is stated to be living separately could not have persistently
  subjected Seema to dowry harassment and cruelty and the first
  appellant is to be acquitted of the charge of 3048 IPC. For the
  alleged demand of dowry by the first appellant as spoken by         G
  PWs 1 and 2, the first appellant is to be convicted under
  Section 498A IPC. As seen from the materials on record, first
  appellant-Jagdish was about 70 years of age in the year 1996.
  Considering his age, lenient view has to be taken in imposing
  the sentence for the offence under Section 498A IPC.
                                                                      H
    202       SUPREME COURT REPORTS               [2014] 11 S.C.R..


A       17. Insofar as appellants 2 and 3 (Yogenda-jeth and
  Savita-jethani), during their questioning under Section 313
  Cr.P.C. though they have stated that they are living separately
  they have not produced any ration card or other document to
  show that they are living separately. In his statement, first
B appellant-Jagdish has stated that Sukhbir was living with his
  wife and children thereby indicating that the second and third
  appellants were living with Sukhbir as a joint family. Upon
  proper appreciation of evidence, the Courts below convicted
  appellants 2 and 3 under Section 3048 IPC and we find no
C infirmity in the concurrent findings recorded by the Courts
  below.

       18. So far as the sentence of appellants 2 and 3, it was
  stated that appellants 2 and 3 are having a physically
  handicapped child and they are also taking care of the son of
0
  deceased-Seema. Considering the passage of time and the
  facts and circumstances of the case, in our view, extreme
  penalty of life imprisonment is not justified and ends of justice
  would be met by reducing the sentence of imprisonment
E awarded against appellants 2 and 3 to seven years rigorous
  imprisonment.

        19. In the result, conviction of first appellant-Jagdish under
  Section 3048 IPC is set aside and he is convicted under
  Section 498A IPC and is sentenced to the period already
F undergone by him. While maintaining the conviction of
  appellants 2 and 3 (Yogendra & Savita) under SecUon 3048
  IPC, sentence of life imprisonment awarded to them is reduced
  to seven years rigorous imprisonment. The appeal is partly
  allowed to the extent indicated above. Bail bonds executed by
G first appellant-Jagdish stand discharged. Appellants Yogendra
  and Savita be taken into custody forthwith for serving out the .
  remaining sentence awarded to them.

    Devika Gujral                                 Appeal partly allowed.

H