TUMMALA VENKATESWAR RAOversusTHE STATE OF ANDHRA PRADESH

                    [2013) 17 S.C.R. 573

             TUMMALA VENKATESWAR RAO
                               v.
           THE STATE OF ANDHRA PRADESH
           . (Criminal Appeal No. 552 of 2011)
                    DECEMBER 17, 2013
                                                                    B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
                 S.A. BOBDE, JJ.]

     Penal Code, 1860- s.3048 - Dowry death - Conviction
of appellant-husband - Justification - Held: On. facts, justified   c'
- Evidence that not only the, appellant made demand of dowry
alongwith other accused'l)ut that he specifically and
individually also made such demand - Appellant entrusted
the deceased the work.of servant maid and used to beat her
for dowry - Sufficient evidenc~, to hold that deceased was          D
subjected to cruelty and harassment by appellant in
connection with demand for dowry soon before her death·-
Moreover, no exculpatory evidence led in defence so as to
rebut the presumption enacted bys. 113-8 of the Evidence Act
- Evidence Act, 1872.                                               E

    Penal Code, 1860 - s. 3048 - Term "soon before her
death" - Meaning of.

     The appellant's wife died due to consumption of a
poisonous substance. The Courts below convicted the                 F
appellant under Section 304-8 IPC and sentenced him to
7 years Rigorous Imprisonment for causing dowry death
of the deceased, and hence the present appeal.

     Dismissing the appeal, the Court .                             G
    HELD: 1. There is evidence that not only, the
appellant made a demand of Rs. 2,00,0001- along 'with
other accused but that the accused specifically and
                              573                                   1-l,
    574         SUPREME COURT. REPORTS (2013] 17 S.C.R.


A   individually made demand for dowry. In his deposition,
    PW-1 - father of the deceased, stated that the deceased
    had informed that the appellant used to beat her for
    dowry when the deceased first went to cohabit with him
    after five months. Even after her return to matrimonial
B   house for the second time, he deposed that on
    23.10.2003 when he went to invite the appellant and his
    daughter for Diwali Festival all the accused asked him to
    take away his daughter as he did not pay the dowry and
    they wanted to perform marriage of the appellant with
c   another lady. The father (PW1) has specifically stated that
    the appellant himself did not accept the invitation but
    asked him to send his daughter with cash. It is soon
    thereafter that the deceased expressed her intention to
    commit suicide since she came back alone narrating the
    harassment made by the accus:"d. There is similar
D
    evidence in the depositions of PW-3, the sister of the
    deceased, who has deposed that the deceased
    expressed her grief that her husband did not come for
    Diwali for want of Rs.2,00,000/-. Whereupon, the deceased
    wept and expressed her intention not to live. PW-5- the
E   maternal uncle of the deceased, has also deposed that
    the deceased informed that A1-appellant continued to
    demand dowry. These specific allegations in respect of
    the demand by the appellant are apart from the various
    statements of the witnesses that the accused, which term
F   include the appellant, harassed her even when she went
    to cohabit for the first time. The appellant entrusted her
    the work of servant maid and he used to beat her for
    dowry. In fact, the accused informed the family of the
    deceased their intention to marry another lady for higher
G   dowry. In view of the beating and humiliation meted out
    by the appellant, this Court is satisfied that the deceased
    was harassed and treated with cruelty in connection with
    a demand for dowry. [Para 3] [577-8-H; 578-A]

          2. The term "soon before her death" in Section 3048
H
   TUMMALA VENKATESWAR RAO v. STATE OF               575
            ANDHRA PRADESH
IPC has been employed by Parliament to refer to cruelty A
or harassment which was meted out in proximity to the
death that has to be considered as the cause of the
death. The provision does not employ the term "at any
time before" nor "immediately before" and must be
construed according to its true import. In the present B
case, there is sufficient evidence to hold that the
deceased had been subjected to cruelty and harassment
by her husband in connection with demand for dowry
soon before her death. Moreover, no exculpatory
evidence has been led in defence so as to rebut the C
presumption enacted by Section 113-8 of the Indian
Evidence Act, 1872. (Paras 9, 11 & 13] [581-8-C; 581-D;
582-8-C]

     Kai/ash vs. State of Madhya Pradesh (2006) 12 SCC
667: 2006 (7) Suppl. SCR 45 and Hira Lal vs. State (Govt. D
of NCT}, Delhi (2003) 8 sec 80: 2003 (1) Suppl. SCR 734
- relied on.

                   Case Law Reference :
    2006 (7) Suppl. SCR 45       relied on     Para 6       E

    2003 (1) Suppl. SCR 734      relieq on     Para 7

    CRIMINAL APP.ELLA TE JURISDICTION : Criminal Appeal
No.552 of 2011
                                                            F
    From the Judgm~nt and Order dated 09.08.2010 of the
High Cou·rt of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No. 272-. of 2007.

    Nagendara Rai, Allanki Ramesh, Manju Jana, Shilpi G
Gupta, C.S.N. Mohan Rao, G. Madhavi, R. Chandrachud for the
Appellant.

    Suchitra H., Amit Nair, D. Mahesh Babu for the
Respondent.
                                                            H
    576         SUPREME COURT REPORTS (2013] 17 S.C.R.


A         The Judgment of the Court was delivered by

       S. A. BOBDE, J. 1. This appeal has been preferred by
  the appellant against the Judgment of a learned Single Judge
  of the High Court of Judicature at Andhra Pradesh dismissing
B his appeal against conviction and sentence under Section 304-
  B of the Indian Penal Code [hereinafter referred to as "IPC"]
  for 7 years Rigorous Imprisonment for causing dowry death of
  the deceased - Neelima. His mother, his sister and her husband
  were acquitted of the same charge.

C       2. The prosecution case is that the appellant was married
  to Neelima on 12.02.2003. She went to cohabit with him after
  five months in July 2003 but returned within four days informing
  her family that the accused used to harass her physically and
  mentally both for want of Rs. 2,00,000/- as additional dowry.
o Gandham Anuradha @ Chinni - A3 and Thummala Sreelakshmi
  - A-4, the sister and brother-in-law of the appellant, took her
  back for Varalakshmi Viratam. She was again harassed for the
  same demand. So, the father - PW1, brought her back to his
  house. At home, the deceased - Neelima, expressed her
E intention to commit suicide. The father invited the appellant to
  his house for Diwali on 23.10.2003 but he refused to come. At
  about 7.30 p.m. when the family was celebrating the festival,
  Neelima consumed pesticide in her bed room. She was found
  there on the bed with the pesticide tin next to her. The family
F shifted her to Elect Critical Care Hospital but she died. The
  father reported the matter to the police, who registered a First
  Information Report. The next day, the police recovered the
  pesticide tin, the bed sheet and the towel. The Mandal Revenue
  Officer (MRO) examined the father, who gave his statement.
G Hence, the prosecution.

       3. We have heard the parties and examined the record.
  Shri Nagendara Rai, learned senior counsel for the appellant,
  submitted that the other accused, namely, the mother -
  Thummala Satyavani - A2; the sister - Gandham Anuradha -
H A3; and Thummala Sreelakshmi - A-4 (husband of A3) having
    TUMMALA VENKATESWAR RAO v. STATE OF                       577
       ANDHRA PRADESH [S.A. BOBDE, J.)
 been· acquitted on the same evidence, the accused is also            A
 entitled for such an acquittal, in view of the fact no specific
 allegation that the appellant demanded dowry has beert made,
 such allegation having been made.in general in respect of all
 the accused. As rightly pointed out by the learned counsel for
 the prosecution, there is no merit in this submission since there    B
 is evidence that not' only the appellant made a demand of Rs.
 2,00,0001- along with other accus13d but that the accused
 specifically and individually made demand for dowry. In his
 deposition, PW-1 - father of the deceased, stated that the
 deceased had informed that the appellant used to beat her for        c
 dowry when the deceased first went     ro   cohabit with him after
 five months. Even after her return to m'atrimonial house for the
 second time, he deposed that on 23.10.2003 when he went to
 invite the appellant and his daughter for Diwali Festival all the
 accused asked him to take away his daughter as he did not            0
 pay the dowry and they wanted to perform marriage of the
 appellant with another lady. The father (PW1) has specifically
 stated that !lie appellant himself did not accept the invitation
 but asked him to send his daughter with cash. It is soon
 thereafter that the deceased expressed her intention to commit       E
 suicide since she came back alone narrating the harassment
  made by the accused. There is similar evidence in the
  depositions of PW-3 - K. Sudha Rani, the sister of the
  deceased, who has deposed that the deceased expressed her
  grief that her husband did not come for Diwali for want of
  Rs.2,00,000/-. Whereupon, the deceased wept and expressed           F
  her intention not to live. PW-5 - Kothapalli Satyanarayana - the
  maternal uncle of the deceased, has also deposed that Neelima
  informed that A 1-appellant continued to demand dowry. These
  specific allegations in respect of the demand by the appellant
  are apart from the various statements of the witnesses that the     G
  accused, which term include the appellant, harassed her even
· when she went to cohabit for the first time . The appellant
  entrusted her the work of servant maid and he used to beat her
  for dowry. In fact, the accused informed the family of the
  deceased their intention to marry another lady for higher dowry.    H
    578          SUPREME COURT REPORTS (2013] 17 S.C.R.


A   In view of the beating and humiliation meted out by the appellant
    we are satisfied that the deceased was harassed and treated
    with cruelty in connection with a demand for dowry.

        4. From the evidence, it appears that the appellant
    considered himself justified in making a demand for higher
8
    dowry because prior to this disastrous marriage someone had
    agreed to pay him Rs. 15,00,000/- for marrying his daughter,
    which he had given up on seeing the deceased Neelima, and
    agreeing to marry her only for Rs.5,00,000/-.

C      5. It was next contended by Shri Rai that the so called
  harassment for dowry was not shown to have been made
  immediately before the death of Neelima as required by law
  for conviction. It is too late in the day to accept this contention
  since the term "soon before her death" has been consistently
D held by this Court not to mean immediately before the death.

        6. This Court in the case of Kai/ash versus State of
    Madhya Pradesh (2006) 12 SCC 667: AIR 2007 SC 107 has
    observed as under:
E         "No presumption under Section 113-8 of the Evidence Act
          would be drawn against the accused if it is shown that after
          the alleged demand, cruelty or harassment the dispute
          stood resolved and there was no evidence of cruelty or
          harassment thereafter. Mere lapse of some time by itself
F         would not provide to an accused a defence, if the course
          of conduct relating to cruelty or harassment in connection
          with the dowry demand is shown to have existed earlier in
          time not too late and not too stale before the date of death
          of the victim. This is so because the expression used in
G         the relevant provision is "soon before". The expression is
          a relative term which is required to be considered under
          specific circumstances of each case and no straitjacket
          formula can be laid down by fixing any time-limit. The
          expression is pregnant with the idea of proximity test. It
H         cannot be said that the term "soon before" is synonymous
   TUMMALA VENKATESWAR RAO v. STATE OF                       579
      ANDHRA PRADESH [S.A. BOBDE, J.]
    with the term "immediately before". This is because of what      A
    is stated in Section 114 Illustration (a) of the Evidence Act.
    The determination of the period which can come within the
    term "soon before" is left to be determined by the courts,
    depending upon the facts and circumstances of each case.
    Suffice, however, to indicate that the expression "soon          B
    before" would normally imply that the interval should not be
    much between the cruelty or harassment concerned and
    the death in question. There must be existence of a
    proximate and live link [see Hira Lal v. State (Govt. of NCT),
    Delhi]."                                                         c
    7. This Court in the case of Hira Lal versus State (Govt.
of NCT), Delhi (2003) 8 SCC 80 has observed as under:

    "A conjoint reading of Section 113-B ofihe Evidence Act
    and Section 304-B IPC shows that there must be material D
    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 circunistances'.'. The expression E
    "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 F
    regard has to be led by 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 whatwould 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 G
    proximity test both for. the proof of an offence of dowry
    death as well as for 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
                                                                 H
    580          SUPREME COURT REPORTS [2013] 17 S.C.R.


A         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
          reference to the expression "soon before" used in Section
          114 Illustration (a) of the Evidence Act is relevant. It lays
B         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 whi~h can come within the term
          "soon before" is left to be determined by the courts,
c         depending upon facts and circumstances of each case.
          Suffice, however, to indic.ate 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 must be existence of a
D         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."
E
          8. Section 304-B, IPC, reads as follows:

          "Dowry death.- (1) Where the death of a woman is
          caused by any burns or bodily injury or occurs otherwise
          than under normal circumstances within seven years of her
F
          marriage and it is shown that soon before her death she
          was subjected to cruelty or harassment by her husband or
          any relative of her husband for, or in connection with, any
          demand for dowry, such death shall be called" dowry
          death'', and such husband or relative shall be deemed to
G         have caused her death.

          Explanation.- For the purposes of this sub- section, "dowry"
          shall have the same meaning as in section 2 of the Dowry
          Prohibition Act, 1961 (28 of 1961).
H
   TUMMALA VENKATESWAR RAO v. STATE OF                        581
      ANDHRA PRADESH [S.A. BOBDE, J.]

    (2) Whoever commits dowry death shall be punished with            A
    imprisonment for a term which shall not be less than seven
    years but which may extend to imprisonment for life,]

     9. It is obvious from this provision that the term "soon
before her death" has been employed by the Parliament to refer        8
to.cruelty or harassment which was meted out in proximity to
the death has to be considered as the cause of the death as
held supra. The provision does not employ the term "at any time
before" nor "immediately before" and must be construed
according to its true import.
                                                                      c
    10. The post-mortem report and the post-mortem
observations of PW 10 - Dr. Rajani Kumari confirmed that the
deceased/Neelima had died due to consuming poisonous
Endosulfan.
                                                                      D
      11. We thus find that in the present case there is sufficient
evidence to hold that the deceased had been subjected to
cruelty and harassment by her husband in connection with a
demand for dowry soon before her death. We have arrived at
this conclusion even after excluding allegations of cruelty and       E
harassment to which the deceased was subjected during the
first period of her cohabitation; after which she had returned.

     12. Shri Rai, the learned counsel referred to the evidence
of PW-13 - G Sambamurthy, the Mandal Revenue Officer, who
carried out the inquest under Section 174 of the Code of              F
Criminal Procedure Code, 1973 [hereinafter referred to as "the
Code"] and attacked the credibility of the evidence of PW-5,
the maternal uncle of the deceased. According to Shri Rai, the
evidence of Mandal Revenue Officer shows that PW-5 did not
state that the deceased Neelima has told him about her travails       G
or harassment in connection with the demand for additional
dowry and that he had accosted the appellant and advised him
to withdraw his demand of Rs. 2,00,000/-. It was argued that
the statements of PW-5 to that effect are therefore false and
!he same must be discarded. Apart from the fact that there is         H
    582         SUPREME COURT REPORTS (2013] 17 S.C.R.


A a difference in a statement ~ppearing in the deposition of an
  officer conducting an inquest and a statement recorded by the
  police under Section 161 of the Code, we find that even without
  the deposition of PW-5, there is sufficient reliable evidence ori
  record to hold that the deceased was subjected to cruelty and
B harassment in connection with a demand for dowry.

         13. It may be noted no exculpatory evidence has been led
    in defence so as to rebut the presumption enacted by Section
    113-B of the Indian Evidence Act, 1872, which reads as follows:

c         "1138. Presumption as to dowry death.- When the
          question is whether a person· has committed the dowry
          death of a woman and it is shown that soon before her
          death such woman had been subjected by such person to
          cruelty or harassment for. or in connection with, any
D         demand· for dowry, the court shall presume that such
          person had caused the dowry death.

          Explanation.- For the purposes of this section, "dowry
          death" shall have the same meaning as in section 3048
          of the Indian Penal Code."
E
        14. In the circumstances. we find there is no merit in the
    appeal and the same is hereby dismissed.
    Bibhuti Bhushan Bose                           Appeal, dismissed.
                •