MAHESH KUMARversusSTATE OF HARYANA

                          [2019] 11 S.C.R. 587                           587


                        MAHESH KUMAR                                     A
                                  v.
                      STATE OF HARYANA
                 (Criminal Appeal No. 1042 of 2012)
                         AUGUST 07, 2019                                 B
     [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
       Penal Code, 1860 – s.304-B – Dowry death – When not –
PW-3-father of the deceased stated that the appellant got married
to his daughter on 26.05.91 – Soon after the marriage, she was
                                                                         C
illtreated by the appellant, father-in-law, mother-in-law and sister-
in-law, as they demanded dowry – As per PW-3, on 08.02.94, he
received information that his daughter expired in the Hospital and
alleges that the same was caused by the administration of poison
by the accused persons – Trial court concluded that the prosecution
proved its case only against the appellant and the mother-in-law of      D
the deceased whereas in respect of accused father-in-law and sister-
in-law, no specific role was assigned and therefore, they were
acquitted – High Court, while granting benefit of doubt to the mother-
in-law, allowed her appeal and acquitted her, whereas sentence of
the appellant was reduced to seven years – On appeal, held:
                                                                         E
Prosecution relied upon the statement of PW3 and PW4-brother of
the deceased, which was made basis of conviction by courts below
– However, such statements are not sufficient to prove that the
deceased was treated with cruelty relating to demand of dowry soon
before her death, in the absence of independent evidence though
available but not examined – Further, the documentary evidence in        F
the shape of letters written by the deceased does not support the
story of the prosecution – Prosecution failed to prove either the
demand of dowry or that any such demand was raised soon before
her death – Essential ingredients of offence u/s.304-B, IPC not
proved – Prosecution has even failed to prove the initial presumption
                                                                         G
u/s.113-B of the Evidence Act – Thus, the prosecution has failed to
prove the allegations levelled against the appellant beyond
reasonable doubt – Conviction of the appellant, set aside – Evidence
Act, 1872 – s.113-B.

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                                 587
588            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A           Allowing the appeal, the Court
            HELD:1.1 In the present case, the prosecution relies upon
      the statement of PW3-father and PW4-brother of the deceased
      which has been made basis of conviction by courts below.
      However, such statements are not sufficient to prove that the
B     deceased was treated with cruelty relating to demand of dowry
      soon before her death in the absence of independent evidence
      though available but not examined. A memorandum Ex.PE/1 dt.
      25.01.1992 was relied upon and said to be executed by the in-
      laws of the deceased in the presence of members of Panchayat.
      But none of the Panchayat Members have been examined to prove
C     the settlement arrived at. Therefore, the oral statements cannot
      be relied upon in view of the letters produced by the prosecution.
      The prosecution also relies upon letter Ex. PF/1 written by the
      deceased to her father. The letter is to the effect that her in-laws
      have started hating and suspecting the deceased’s father,
D     therefore, he should not give them the gold chain but only cash.
      Such letter does not show that anything was demanded by the
      appellant. The date of sending such letter has not been proved
      by the prosecution, therefore, it cannot be said that such letter
      was written soon before her death. Similarly, another letter
      produced by the prosecution is Ex. PK/1 which is a letter of the
E     deceased to her brother-in-law(sisters-husband) stating that she
      has no problem with her mother-in-law and sister-in-law but her
      husband beats her daily. The date of this letter has not been proved
      nor does such letter lead to any inference for the demand of dowry
      by the husband of the deceased. Further, an additional letter relied
F     upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein
      the deceased has written that she is unhappy and harassed by
      her in-laws in as much as her mother-in-law does not like the
      food she cooks. Again, there is no inference of any demand of
      dowry in such letter as well. Therefore, the documentary evidence
      in the shape of letters does not support the story of the
G     prosecution. [Paras 14, 15] [595-E-G; 596-A-C]
           1.2 The prosecution has failed to prove either the demand
      of dowry or that any such demand was raised soon before her


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          MAHESH KUMAR v. STATE OF HARYANA                               589


death. Therefore, the essential ingredients of offence under             A
Section 304-B of IPC are not proved by the prosecution. The
prosecution has even failed to prove the initial presumption under
Section 113-B of the Evidence Act, 1872. Prosecution has failed
to prove the allegations levelled against the appellant beyond
reasonable doubt. Consequently, the conviction of the appellant
                                                                         B
is set aside and he is set at liberty as long as he is not involved in
any other case. [Paras 16, 17] [596 D-F]
      Satvir Singh & Ors. v. State of Punjab & Anr. (2001) 8
      SCC 633 : [2001] 3 Suppl. SCR 353 ; Hira Lal & Ors.
      v. State (Govt. of NCT), Delhi (2003) 8 SCC 80 : [2003]
      1 Suppl. SCR 734 ; Sakatar Singh & Ors. v. State of                C
      Haryana (2004) 11 SCC 291 ; Major Singh and Anr. v.
      State of Punjab (2015) 5 SCC 201 : [2015] 5 SCR 777
      – relied on.
                       Case Law Reference
                                                                         D
[2001] 3 Suppl. SCR 353           relied on             Para 10
[2003] 1 Suppl. SCR 734           relied on             Para 11
(2004) 11 SCC 291                 relied on             Para 12
[2015] 5 SCR 777                  relied on             Para 13
                                                                         E
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1042 of 2012
      From the Judgment and Order dated 21.01.2009 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 128-SB
of 1996.                                                                 F
      D. N. Goburdhan, Adv. for the Appellant.
      Shekhar Raj Sharma, Vishwa Pal Singh, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      HEMANT GUPTA, J.                                                   G
      1. This appeal has been preferred against the judgment dated
21.01.2009, passed by the High Court of Punjab and Haryana at
Chandigarh, by which the High Court has allowed the appeal of Savitri

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590             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     Devi, mother of the appellant and affirmed the conviction of the appel-
      lant passed by trial court on 12.12.1995 for the offence punishable under
      Section 304-B IPC. However, the High Court has reduced the sen-
      tence of the appellant from ten years to seven years looking to the fact
      that the appellant had suffered a protracted trial of more than 15 years.
B            2. The prosecution was set in motion on the statement of PW3
      Sohan Lal/Complainant - father of the deceased as recorded by the
      Investigating Officer Assim Khan PW9. The Complainant stated that
      Mahesh Kumar got married to the deceased Omwati on 26.05.1991.
      But soon after the marriage, she was illtreated by her husband Mahesh
      Kumar, father-in-law Rajpal, mother-in-law Smt. Savitri and sister-in-
C     law Kamlesh, as they demanded dowry. Complainant further claims
      that he gave dowry more than his capacity, even gave the accused a
      gold chain after one year of marriage, but they were still not satisfied
      and therefore they would beat the deceased. The deceased sent a letter
      to the complainant informing him about the same, after which, the
D     complainant went to the village where his daughter was residing, met
      her and her in-laws and informed them that he was unable to satisfy
      their demand of dowry as it was beyond his capacity and that his daughter
      should not be harassed for bringing insufficient dowry. The complainant
      states that the deceased’s in-laws had tendered an apology at that time
      and her father-in-law executed the same in writing and promised to
E     send her to her parental home on Raksha Bandhan. Subsequently, after
      the festival, she was sent back to her matrimonial house with the appellant,
      and at that time the complainant had given them a sum of Rs.1,000/- in
      cash. After about ten months, the appellant left the deceased at her
      brother Rajbir’s house and demanded Rs.5,000/-. It is further claimed
F     that, on 03.02.1994, the Complainant paid Rs.2,000/- to the appellant
      when he came to take the deceased back with him and promised to pay
      the remaining amount soon, after arranging the same. At that time, the
      deceased had apparently expressed apprehension that her in-laws would
      not allow her to live, lest the demands are met. It was on 08.02.1994,
      that the complainant received information that his daughter, had expired
G     in Civil Hospital, Gurgaon, and alleges that the same was caused by the
      administration of poison by the accused. An FIR was thus lodged on
      09.02.1994, against the appellant, the deceased’s father-in-law Rajpal,
      mother-in-law Smt. Savitri and sister-in-law Kamlesh.

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           MAHESH KUMAR v. STATE OF HARYANA                                   591
                  [HEMANT GUPTA, J.]

       3. The investigation was conducted by Investigating Officer Assim      A
Khan PW9 and all the four accused were arrested. After completing
investigation, a report was filed in the Court of Judicial Magistrate First
Class, Gurgaon who committed the case to the trial court. The charge
was framed against all the four accused under Section 304-B IPC. All
the accused pleaded not guilty and claimed trial. The prosecution examined
                                                                              B
ten witnesses in all.
       4. The trial court held that the letters written by the deceased
with oral evidence in the form of statements of Complainant PW3 –
Sohan Lal and PW4- Rajbir, brother of the deceased, are sufficient to
establish that deceased was continuously harassed and met with cruelty
on account of dowry and as such it is a case of dowry death. The trial        C
court had come to the conclusion that the prosecution has proved its
case only against Appellant/Mahesh Kumar, husband of the deceased
and Savitri Devi, mother-in-law of the deceased whereas in respect of
accused Rajpal and Kamlesh, the trial court held that no specific role is
assigned to them and, therefore, they were given benefit of doubt and         D
were acquitted.
       5.Aggrieved against the order of trial court, accused Mahesh
Kumar and Savitri Devi filed an appeal before the High Court of Punjab
and Haryana. The High Court, while granting benefit of doubt to accused
Savitri Devi, allowed her appeal and acquitted her of the charges whereas     E
sentence of appellant Mahesh Kumar was reduced to seven years.
    6. Aggrieved by the judgment of the High Court, appellant Mahesh
Kumar is in appeal before this Court.
       7. Learned counsel appearing for the appellant contends that the
essential ingredients of Section 304-B IPC have not been proved by the        F
prosecution. The letters produced by the prosecution do not relate to
demand of dowry, and any demand for a gold chain was made two
years before the death, and therefore, it cannot be said to be soon before
the death of the deceased. There is no evidence that there was any
demand for dowry on the part of the family of the appellant soon before       G
the death. Thus, offence under Section 304-B is not made out against
the appellant.
      8. The learned counsel appearing for the State contends that there
is no dispute about the fact that the deceased died within 7 years of
marriage and met with an unnatural death due to organo phosphorus
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592               SUPREME COURT REPORTS                        [2019] 11 S.C.R.


A     pesticide. It is pointed out that the evidence on record is sufficient to
      establish beyond doubt that she was met with cruelty continuously after
      marriage on account of dowry.
             9. The first and foremost question that arises in this case, and in
      respect of the necessary ingredients of Section 304-B IPC, is whether
B     there is a proximate nexus between the death of the deceased with the
      cruelty or harassment inflicted upon her in respect of the demand of
      dowry. Section 304-B reads as under:
               “304-B. Dowry death.—(1) Where the death of a woman is
               caused by any burns or bodily injury or occurs otherwise than
C              under normal 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 hus-
               band 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.
D
               Explanation.—For the purpose 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 impris-
               onment for a term which shall not be less than seven years but
E
               which may extend to imprisonment for life.”
             10) This Court in Satvir Singh & Ors. v. State of Punjab &
      Anr.1 examining the significance and implication of the use of the words
      ‘soon before her death’ in Section 304-B, has held as under:
F              “20. Prosecution, in a case of offence under Section 304-B IPC
               cannot escape from the burden of proof that the harassment or
               cruelty was related to the demand for dowry and also that such
               cruelty or harassment was caused “soon before her death”. The
               word “dowry” in Section 304-B has to be understood as it is defined
               in Section 2 of the Dowry Prohibition Act, 1961. That definition
G              reads thus:
               “2. In this Act, ‘dowry’ means any property or valuable security
               given or agreed to be given either directly or indirectly—

      1
H         (2001) 8 SCC 633
              MAHESH KUMAR v. STATE OF HARYANA                                   593
                     [HEMANT GUPTA, J.]

         (a) by one party to a marriage to the other party to the marriage;      A
         or
         (b) by the parents 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        B
         in the case of persons to whom the Muslim personal law (Shariat)
         applies.”
                      xxx                xxx                   xxx
         22. It is not enough that harassment or cruelty was caused to the       C
         woman with a demand for dowry at some time, if Section 304-B
         is to be invoked. But it should have happened “soon before her
         death”. The said phrase, no doubt, is an elastic expression and
         can refer to a period either immediately before her death or within
         a few days or even a few weeks before it. But the proximity to
         her death is the pivot indicated by that expression. The legislative    D
         object in providing such a radius of time by employing the words
         “soon before her death” is to emphasise the idea that her death
         should, in all probabilities, have been the aftermath of such cruelty
         or harassment. In other words, there should be a perceptible nexus
         between her death and the dowry-related harassment or cruelty           E
         inflicted on her. If the interval elapsed between the infliction of
         such harassment or cruelty and her death is wide the court would
         be in a position to gauge that in all probabilities the harassment or
         cruelty would not have been the immediate cause of her death. It
         is hence for the court to decide, on the facts and circumstances
         of each case, whether the said interval in that particular case was     F
         sufficient to snuff its cord from the concept “soon before her
         death”.”
       11. In Hira Lal & Ors. v. State (Govt. of NCT), Delhi2, this
court held that there must be material to show that soon before her
death the victim was subjected to cruelty or harassment. The prosecution         G
has to rule out the possibility of a natural or accidental death so as to
bring it within the purview of death occurring otherwise than in normal
circumstances. It was held as under:

2
    (2003) 8 SCC 80                                                              H
594      SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     “9. A conjoint reading of Section 113-B of the Evidence Act and
      Section 304-B IPC shows that there must be material to show
      that soon before her death the victim was subjected to cruelty or
      harassment. The prosecution has to rule out the possibility of a
      natural or accidental death so as to bring it within the purview of
      “death occurring otherwise than in normal circumstances”. The
B
      expression “soon before” is very relevant where Section 113-B
      of the Evidence Act and Section 304-B IPC are pressed into
      service. The prosecution is obliged to show that soon before the
      occurrence there was cruelty or harassment and only in that case
      presumption operates. Evidence in that regard has to be led by
C     the prosecution. “Soon before” is a relative term and it would
      depend upon the circumstances of each case and no straitjacket
      formula can be laid down as to what would constitute a period of
      soon before the occurrence. It would be hazardous to indicate
      any fixed period, and that brings in the importance of a proximity
      test both for the proof of an offence of dowry death as well as for
D
      raising a presumption under Section 113-B of the Evidence Act.
      The expression “soon before her death” used in the substantive
      Section 304-B IPC and Section 113-B of the Evidence Act is
      present with the idea of proximity test. No definite period has
      been indicated and the expression “soon before” is not defined. A
E     reference to the expression “soon before” used in Section 114
      Illustration (a) of the Evidence Act is relevant. It lays down that a
      court may presume that a man who is in the possession of goods
      “soon after the theft, is either the thief or has received the goods
      knowing them to be stolen, unless he can account for their
      possession”. The determination of the period which can come
F
      within the term “soon before” is left to be determined by the courts,
      depending upon 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
G     must be existence of a proximate and live link between the effect
      of cruelty based on dowry demand and the death concerned. If
      the alleged incident of cruelty is remote in time and has become
      stale enough not to disturb the mental equilibrium of the woman
      concerned, it would be of no consequence.”
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              MAHESH KUMAR v. STATE OF HARYANA                                   595
                     [HEMANT GUPTA, J.]

      12. In Sakatar Singh & Ors. v. State of Haryana3, the Court                A
was examining as to whether, letter written by the deceased discloses
an offence under Section 304 B of the IPC. It was held that:
         “11. In the above background, we will now consider the evidence
         led by the prosecution to establish the charge levelled against the
         appellants. In this process, we will first examine the letter written   B
         by the deceased to her mother. Though this letter does not mention
         the date, there is no dispute that the same was posted on 20-5-
         1986 which is evident from the postal seal found on the envelope
         which would be a date prior to the incident leading to the death of
         Devinder Kaur and the children. The contents of the letter indicate
         what transpired during her mother’s visit to her in-laws’ house         C
         and does not anywhere even remotely indicate any demand made
         by her in-laws. It only reflects the attitude of the deceased towards
         her in-laws and that she entertained a feeling that her mother was
         not properly treated by her mother-in-law during her last visit…..”
      13. In Major Singh and Anr. v. State of Punjab4, the Court                 D
disbelieved the prosecution’s story for the reason that no independent
witnesses were examined, even though, the witnesses deposed that the
Members of Panchayats were informed about the harassment.
       14. In the present case, the prosecution relies upon the statement
of PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased               E
which has been made basis of conviction by courts below. However,
we find that such statements are not sufficient to prove that the deceased
was treated with cruelty relating to demand of dowry soon before her
death in the absence of independent evidence though available but not
examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and                F
said to be executed by the in-laws of the deceased in the presence of
members of Panchayat. But none of the Panchayat Members have
been examined to prove the settlement arrived at. Therefore, the oral
statements cannot be relied upon in view of the letters produced by the
prosecution.
                                                                                 G
       15. The prosecution also relies upon letter Ex. PF/1 written by the
deceased to her father. The letter is to the effect that her in-laws have
started hating and suspecting the deceased’s father, therefore, he should
3
    (2004) 11 SCC 291
4
    (2015) 5 SCC 201                                                             H
596             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     not give them the gold chain but only cash. Such letter does not show
      that anything was demanded by the appellant. The date of sending such
      letter has not been proved by the prosecution, therefore, it cannot be
      said that such letter was written soon before her death. Similarly, another
      letter produced by the prosecution is Ex. PK/1 which is a letter of the
      deceased to her brother-in-law(sisters-husband) stating that she has no
B
      problem with her mother-in-law and sister-in-law but her husband beats
      her daily. The date of this letter has not been proved nor does such letter
      lead to any inference for the demand of dowry by the husband of the
      deceased. Further, an additional letter relied upon by the prosecution is
      Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she
C     is unhappy and harassed by her in-laws in as much as her mother-in-law
      does not like the food she cooks. Again, there is no inference of any
      demand of dowry in such letter as well. Therefore, the documentary
      evidence in the shape of letters does not support the story of the
      prosecution.
D            16. In view of the judgments referred to above, the prosecution
      has failed to prove either the demand of dowry or that any such demand
      was raised soon before her death. Therefore, the essential ingredients
      of offence under Section 304-B of IPC are not proved by the prosecution.
      The prosecution has even failed to prove the initial presumption under
      Section 113-B of the Evidence Act.
E
             17. We find that the prosecution has failed to prove the allegations
      levelled against the appellant beyond reasonable doubt. Consequently,
      we allow the present appeal and set aside the conviction of the appellant
      and set him at liberty as long as he is not involved in any other case. Bail
      bonds shall stand discharged.
F

      Divya Pandey                                                  Appeal allowed.




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