SMT. SHANTI AND ANR.versusSTATE OF HARYANA

                     SMT. SHANTI AND ANR.
                                                                             A
                                        v.
                       STATE OF HARYANA

                        NOVEMBER 13, 1990

     [S. RATNAVEL PANDIAN AND K. JAYACHANDRA                                 B
                     REDDY, JJ.]

      Indian Penal Code,- 1860: Sections 304-B and 498-A-Scope of.

     Dowry Death-Relaiive of the husband !if a woman subjecting her
to cruelty-Woman's death occurring in unnatural circumstances-
Prosecution of A_ccused-Conviction under section 304-B-:Acquittal            c
under section 498-A-Effect of-Seciions 304-B and 498.-A~Whether
mutually exclusive.    · ·                                  .

      Evidence Act,· 1872: Section I 13:8-Presumption as to dowry
death.                                                                       D

      Dowry Prohibition Act, 1961: Section 2-Dow,.Y..,.Meaning of,

      The ~ppellants, along with three other co:acctised," we~e charged_
of committing a. dQwry death. They were prosecuted under sections 201, ·
304-B and 498-A of the Indian Penal Code .. The Trial Court convicted        E
the appellants on all the counts but acquitted the other three co-accused.

      The appellants preferred   ari·appeal before the High Court which_
set aside their conviction· '!Ilder section 498-A holding that_ Sections
304-B and 498-A. are mutually exclusive and that when on~. the
cruelty envisaged in section 498-A culminates in dowry death of the          F
victim Section 304-B alone is attracted~ Accordingly, the High Court
acquitted the appellants under section 498-A. But their convictions
under section 304-B and 201 were affirmed.                       ·

      In the appeal to this Court, it was contended on behalf of the
appellants: (i) that the acquittal of the appellants under section 498-A     G
indicates that cruelty on the part of the acctised was not proved and
consequently the death cannot be one of "dowry death'', and (ii) that
there was no direct evidence in this case and that all the ingredients of
section 304-B oflndian Penal Code were not made out.                .   '

      Disposing of the appeal, this Court,                                   H.

                                   675
     676           SUPREME COURT REPORTS               [ 1990) Supp.   c S.C.R.
            ·HELD: 1. The view of the High Court that Sections 304-B and
A
      498-A I.P.C. are mutually exclusive is not correct. Sections 304-B and
      498-A cannot be held to be mutually exclusive. These provisions deal
      with two distinct offences. It is true that "cruelty" is a common essen-
      tial to both the Sections and that has to be proved. The Explanation to
      Section 44)8..A gives the meaning of "cruelty". In Section 3()4.B there is
B     no such explanation about the meaning of "cruelty" but having regafd
      to the common background-to these offences, the memiing of "cruelty
      01· harassment" will be the same as found in the explanation to Section
      498-A under which "cruelty" by itself amounts to an offence and is
      punishable. Under Section 304-B, It IS the "dowry death" that Is
      punishable and such death should have occurred within seven years of
      the marriage. No such period Is mentioned in Section 498-A end the
c     husband or his relative would be liable for subjecting the woman to
      "cruelty" any time after the marriage. Further a person charged and
      acquitted under section 304-B can be convicted under Section 498-A
     .without charge being there, If such a case is made oul. But from the
      point of view of practice and procedure and to avoid technical defects It
·o    is neceSsary in such cases to frame charges under both the Section and If
      the case Is established they can be convicted under both the Sections but
      no separate sentence need be awarded under Section 498-A in view of
      the substantive sentence being awarded for the major offence under
      section 304-B. [682D-H; 683A]

 E         1.1 In the instant case, the High Court has not held that the
     prosecution has not established cruelty on the part of the appellants but
     on the other hand it considered the· entire evidence and held that the
     element of cruelty which is also an essential of Section 3()4.B I.P .C has
     been established. In these circnmstances, therefore, thi mere acquittal
     of the appellants under Section 498-A I.P.C. makes no dltJerence for          •
                                                                              0

 F   the purpose of this case. [682C-D]      ·

           2. In the instant case, there Is absolutely no material to indlcale
     even remotely that it was a case of natural death. It Is nobody's case
     that it was accidental death. In the result It was an unnatural death;
     either homicidal or suicidal. But even assuming that It Is a case of
 G   suicide even then It would be death which had occurred in unnatural
     circumstances. Even in such a case, Section 304-B Is attracted. There-
     fore, the prosecution has established that the 11ppellants have commlted
     an offence punishable under Section 304-B beyond all reasonable
     doubt. [681G-H; 682A]

 H         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 368 of 1990.
 o"1T. SHANfi '·STATE OF HARYANA [K. JAYACHANDRA REDDY, l.[           077

     From tht Judgment and Order dated 1.2.1990 of the Punjab and
                                                                            A
 Haryana High Court in Crl. A. No. 703 D.B. of 1988.

       U.R. Lalit, Ranbir Singh Yadav andP. Gaurfor the Appellants.

       Mahabir Singh for the Respondent.
                                                                            B
       The Judgment of the Court was delivered by

        K. JAYACHANDRA REDDY, J. This is a case of dowry death.
  The deceased by name of Smt. Kailash was the daughter of Hari
  Bhagwan, P.W. 1 of Jonala. She was married to one Sat Pal of
  Mundaliya Village about 9 kilometres away from Jonala. The marriage C
· took place on 18th April, 1987. Sat Pal, the husband at the relevant
  time was serving in the Army. His father namely the father-in-law of
  deceased was employed in Railways. Accused No. I Smt. Shanti is the
  mother of Sat Pal, and the mother-in-law of the deceased. The other
  appellant Smt. Krishna, wife of the brother of Sat Pal was another
  inmate. After marriage the deceased was livi.r\g in her matrimonial D
  home with accused Nos. 1 and 2, the two appellants herein. It is
  alleged that these two women were harassing the deceased all the
  while after the marriage for not bringing Scooter and Television ·as part of
  the dowry and she was treated cruelly. The marriage of one Munni, a
  cousin of the cleceased was fixed for 30th April, 1988. Her brother
 )NCnt to Mundaliya village twice for bringing the deceased but the E
 accused only taunted him and sent him away without sending the
 deceased. Ultimately, P.W. I, the father himself went to the home of
 his dauther, the deceased on 25th April, 1988. The two. appellant\
 misbehaved with him saying that if he was fond of his daughter he
 ought to have arranged Scooter and Television as part of the dowry
 and he was insulted and pushed out of the house. On 26th April, 1988 F
 at about 11 P .M: P. W. I came to know that the deceased had been
 murdered and was cremated by the two ladies with the help of another
 three persons. A report was given and the police could recover only
 bones and ashes. After investigation, the charge-sheet was laid.

        The Additional Sessions Judge, who tried all the five accused G
  convicted the appellants under Section 304-B I.P.C. and sentenced
  each of them to life imp!isonment and under section 201 Ii>.C,,
. sentenced them to undergo_ imprisonment for one year and to pay a fine
   of Rs.2,000 each and also under Section 498:A I.P.C. to t.wo _years
  rigorous imprisonment and to pay a fine of Rs.3,000. The sentences
   were directed to run concurrently, The other accused were acquit~ H
    678             SUPRF.).IB COURT REPORTS          [1990] Supp. 2 S.C.R.

    These two appellants preferred an appeal to the High court and the
A
    same was dismissed. The High Court, however, set aside the convic-
    tion under Section 498-A LP .C. The present appeal, pursuant to the
    leave granted by this Court, has been preferred against the judgment
    of the High Court.

B         Mr. La lit; learned counsel for the appellants submitted that there
    is no direct evidence in this case and that all the ingredients of an
    offence under Section 304-B 1.P.C. are not made out. According to
    him, it is not conclusively proved that the two appellants subjected the
    deceased to cruelty or harassment and the very fact that the High
    Court has acquitted the appellants of the offence punishable under
    Section 498-A would itself indicate that the prosecution case regarding
c   cruelty is not accepted and consequently the death cannot be one of
    "dowry death". On merits, he submitted that in the absence of clear
    proof of the .cause of death one cannot presume that the death occilr-
    red in unnatu.ral circumstances.

D             Section 304B l.P.C. 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 circum.stances within seven years of her
                   marriage and it is shown that soon before her death she was
E                  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.

F                  Explanation-For the purposes of this sub-section, "dowry"
                   shall have the same meaning as in Section 2 of the Dowry
                   Prohibition Act, 1961.

                   (2) Whoever commits dowry death shall be punished with
                   imprisonment for a term which shall not be less than seven
G                  years but which may extend to imprisonment for life."
          •
    This Section was inserted by the Dowry Prohibition (Amendment)
    Act, 1986 with a view to combat the increasing menace of dowry
    deaths. It lays down that wl!ere the death of a woman is caused by any       ~
    burns or bodily injury or occurs otherwise than under normal circums-
H   lances within seven years of her marriage and it is shown that soon
-.       SMT. SHANTI v. STATEOFHARYAl'lA lK.JAYACHANDRA REDDY,J.J            679

         before the death of the woman she was subjected to cruelty or harass-      A
         ment by her husband or his relations for or in connection with any
         demand for dowry, such death shall be called "dowry death" and the
         husband or relatives shall be deemed to have caused her death and
         shall be punishable with .imprisonment for a minimum of seven years
         but which may extend to life imprisonment. As per the explanation to
                                                                                    B
         the Section, the "dowry" for the purposes of this Section shall have the
         same meaning as in Section 2 of the Dowry Prohibition Act, 1961
         which defines "dowry" as follows:
 •
                     "2. Definition of "dowry"-In this Act, "dowry" means
                     any property or valuable security given or agreed to be
                     given either directly or indirectly-                           C

                     (a) by one party to a marriage to the other party to the
                     marriage; or

                    (b) by the parents of either party to a marriage or by any
                                                                                    D
                    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."
                                                                                    E
         Keeping in view the object, a new Section 113-B was introduced in the
         Evidence Act to raise a presumption as to dowry death. It reads as
         under:

                    "113B. Presumption as to dowry death-When the ques-
                    tion as whether a person has committed the dowry death of
     1                                                                              F
                    a woman and it :s shown that soon before her death such
                    woman had been subjected by such person to cruelty or
                    harassment for, or in connection with, any demand for
                    dowry, the Court shall presume that such person had
                    caused the dowry death.
                                                                                    G
                         Explanation-For the purposes of this section,
                    "dowry death" shall have the same meaning as in Section
                    304B of the Indian Penal Code."

         One another provision which is relevant in this context is Section
         498-A LP .C. which reads as under:
                                                                                    H
    680         SUPREME COURT REPORTS               [1990]. Supp. 2 S.C.R.

               "498-A. Husband or relative of husband of a women sub-
A
               jecting her to cruelty-Whoever being the husband or the
               relative of the husband of a woman, subjects such woman
               to cruelty shall be punished with imprisonment for a term
               which may extend to three years and shall also be liabt.e to
               fine.
B
               Explanation-For the purposes of this section, "cruelty"
               means-

               (a) any wilful conduct which is of such a nature as is likely
               to drive the woman to commit suicide or to cause grave
               injury or danger to life, limb or health (whether mental or
c              physical) of the woman; or

               (b) harassment of the woman where such harassme11t is
               with a view to coercing her or any person related to her to
               meet any unlawful demand for any property or valuable
D              security or is on account of failure by her or any person
               related to her to meet such demand."

    A careful analysis of Section 304B shows that this Section has the
    following essentials:

E              "(l) The death of a woman should be caused by burns or
               bodily injury or otherwise than under normal circums-
               tances;

               (2) Such death should have occurred within seven years of
               her marriage;
F
               (3) She must have been subjected to cruelty or .harassment
               by her husband or any relative of her husband;

               (4) Such cruelty or harassment should be for or in connec-
               tion with demand for dowry."
G
    Section 113B of the Evidence Act lays down that if soon before the
    death ..such woman has been subjected to cruelty or harassment for or
    in connection with any demand for dowry, then the Court shall pre-
    sume that such person has committed the dowry death. The meaning
    of "cruelty" for the purposes of these Sections has to be gathered from    •
H   the language as found in Section 498-A and as per that Section
SMT. SHANTI v. STATEOFHARYANA [K. JAYACHANDRA REDDY, J.l             681


'.'cruelty" means "any wilful conduct which is of such a nature as is
                                                                            A
likely to drive the woman to commit suicide or to cause grave in jury or
danger to life etc. or harassment to coerce her or any other person
related to her to meet any unlawful demand for any property or valu-
able security or is in account of failure by her or any person related to
her to meet such demand." As per the definition of "dowry" any
property or valu.able security given or agreed to be given either at or     B
before or any tiine after the marriage, comes within the meaning of
"dowry", With this background of the provisions of law we shall
examine the facts in the instant case.

       Both the courts below have held that the two appeilants did not
send the deceased to her parent's house and drove out the brother as
well as the father of the deceased complaining that scooter and televi-     c
sion have not been given as· dowry. We have carefully examined this
part of the pro~cution case and we are satisfied that the prosecution
nas established beyond all·reasonable doubt that the appellants treated
the deceased cruelly and the same squarely comes within the meaning
of "cruelty" which is an essential under Section 304-B and that such        D
cruelty was for demand for dowry. It is an admitted fact that death
occurred within seven years of the marriage. Therefore three essen-
tials are satisfied. Now we shall see whether the other essential namdy
whether the death occurred otherwise than under normal circums-
tances is also established? From the evidence of P. W. 1, the father,
PW: 2 the brother, and P.W. 3 the mother, it is clear that they were        E
not even informed soon about the death and that the appellants
hurriedly cremated the dead body. Under these ci~cumstances, the
presumption under Section 113B is attracted. The accused examined
defence witnesses to rebut the presumption and to show that the
deceased suffered heart~attack. We have examined the evidence of
D. Ws 2 and 3 and we agree with the courts below that this theory of        F
natural death cannot b.e accepted at all. No material was placed to
show that the deceased suffered any such attack previously. If it was
natural death, there was no need for the appellants to act in such
unnatural manner and cremate the body in great and unholy haste
without° even informing the parents. Because o1 this cremation no post-
mortem could be conducted and the actual cause of death could not be        G
established clearly. There is absolutely no material to indicate even
remotely that it was a case of natural death. It is nobody's case that it
was accidental death. In the result it was an unnatural death; either
homicidal· or suicidal. But even assuming that it is a case of suicide
even then it would be death which had occurred in unnatural circums-
tances. Even in such a case, Section 304B is attracted and this position    H
    682         SUPREME COURT REPORTS               [1990] Supp. 2 S.C.R.

A   is not disputed. Therefore, the prosecution was established that the
    appellants have committed an offence punishable under Section 304B
    beyond all reasonable doubt.

           Now we shall consider the question as to whether the acquittal of
    the appellants of the offence punishable under Section 498-A makes
B   any difference. The submission .of the learned counsel is that the ac-
    quittal under Section 498-A I.P.C. would lead to the effect that the
    cruelty on the part of the accused is not established. We see no force in
    this submission. The High Court only held that Section 304B and
    Section 498-A I.P.C. are mutually exclusive and that when once the
    cruelty envisaged in Section 498-A 1.P.C. culminates in dowry death of
    the victim, Section 304B alone is attracted and in that view of the
c   matter the appellants were acquitted under Section 498-A I.P.C. It can
    therefore be sr~n that the High Court did not hold that the prosecution
    has not established cruelty on the part of the appellants but on the
    other hand the High Court considered the entire evidence and held
    that the element of cruelty which is also an essential of Section 304B
D   l.P.C. has been established. Therefore the mere acquittal of the appel-
    lants under Section 498-A I.P.C. in these circumstances makes no
    difference for the purpose of this case. However, we want to point out
    that this view of the High Court is not correct and Sections 304B and
    498-A cannot be held to be mutually exclusive. These provisions deal
    with two distinct offences. It is true that "cruelty" is a common essen-
E   tial to both the Sections and that has to be proved. The Explanation
    to Section 498-A cives the meaning of "cruelty". In Section 304B
    there is no such explanation about the meaning of "cruelty" but having
    regard to the common background to these offences we have to take
    that the meaning of "cruelty or harassment" will be the same as we
    find in the· explanation to Section 498-A under which "cruelty" by
F   itself amounts to an offence and is punishable. Under Section 304B as
    already noted, it is the "dowry death" that is punishable and such
    death should have occurred within seven years of the marriage. No
    such period is mentioned in Section 498-A and the husband or his
    relative would be liable for subjecting the woman to "cruelty" any
    time after the marriage. Further it must also be borne in mind that a
G   person charged and acquitted under Section 304B can be convicted
    under Section 498-A without charge being there, if such a case is made
    out. But from the point of view of practice and procedure and to avoid
    technical defects it is necessary in such cases to frame charges under      ..
    both the Sections and if the case is established they can be convicted      /"
    under both the Sections but no separate sentence need be awarded
H   under Section 498-A in view of the substantive sentence being awarded
                                                        "'""-~··
~-   SMT. SHANTI v. STATE OFHARYANA [K. JAYACHANDRA REDDY, J.]             683

     for the major offence under Section 304B.      '                             A
                                            ~
         · These are all the submissions and we do not find merit in any of
     them. Therefore, we confirm the convictions.

            Now coming to the sentences, accused No. 2, the wife of ihe
                                                                                  B
     hU•band's brother is a young lady of 20 years at the time of the trial. As
     alteady mentioned, there is no evidence as to the cause of death but as
     discussed above, the cruelty on the part of these two appellants is
     established but in bringing about the death, there is no evidence as to
     the actual part played ·by accused No. 2. Further both the appellants
     are women. Under these circumstances, a minimum sentence of seven
     years' rigorous imprisonment would serve .the ends of justice. Accord-       c
     ingly the convictions are confirmed but the sentence of imprisonment
     for life under Section 304B LP.C. of each of the accused appellant is
     set aside and instead each-of them is sentenced to undergo seven years'
     rigorous imprisonment. The appeal is disposed of accordingly.

     T.N.A.                                               Appeals disposed pf.