Shiv Kumar Sharma, J.

Like a candle Burnt out

I go out of this world

Bearing the scars of a grief-stricken heart of desires unfulfilled of hopes belied.

1. Pale lips of Manju, a young bride, perhaps wanted to utter these words when she breathed last in the Government Hospital Gangapur City. Her husband (Dhani Ram), mother-in-law (Sushila), sister-in-law (Samta) and brother-in-law (Dharmendra), the appellants herein, who were convicted and sentenced as under, seek to appeal from the judgment dated June 15, 2001 of the learned Special Judge, SC/ST (PA) Cases Sawai Madhopur:

Under Section 304B, IPC:

To undergo imprisonment for life and fine of Rs. 500, in default to further suffer three months simple imprisonment.

Under Section 498A, IPC:

To undergo three years rigorous imprisonment and fine of Rs. 200 in default one months simple imprisonment.

The substantive sentence were ordered to run concurrently.

Appellant Dharmendra, who was also charged under Section 376, IPC, however, stood acquitted of the said charge. Finding of acquittal has been assailed by the complainant in revision petition No. 665/2001.

2. Manju @ Babli, who was married to Dhani Ram (appellant) on February 16, 1997, consumed poison and died on August 13, 1998. She was driven to that action on account of harassment and cruel treatment suffered by her at her nuptial home. The events which culminated in the said tragedy have been set out by the prosecution like this:

Deceased Manju, daughter of Tara Chand Soni (PW 1) at the time of marriage was studying in M.A. Final Economics. Tara Chand Soni had three daughters and one son and was serving as Upper Division Clerk in Government Girls Polytechnic College Ajmer. Marriage of Manju and Dhani Ram was celebrated at Ajmer and father of Manju gave cash and jewellery worth three lakh besides scooter and other gifts. Nuptial home of Manju was Gangapur City where her husband Dhani Ram was residing with his father Suraj Mal, mother Sushila, brother Dharmendra and sister Samta. Dhani Ram was serving in Western Railway and was posted at Ratlam. For about four-five months Manju was treated well and she resided at Gangapur City and Ratlam. During this period she came to know that her husband had illicit relations with the daughter of his landlord at Ratlam. At Gangapur City, she used to be harassed in connection with the demand of dowry and her Jeth Dharmendra had an evil eye on her. In the month of January, 1998 on the occasion of Sankranti Manju had come to her parental home. Her father-in-law Suraj Mal had promised that after 15-20 days she would be taken back but when nobody came to Ajmer even after lapse of three months, father of Manju in the month of April, 1998 took her to Ratlam, where Dhani Ram met them and demanded a sum of rupees two lakh for kidney transplantation of his father. When Tara Chand Soni expressed his inability, Dhani Ram told him that until money is arranged he would not keep Manju with him. Tara Chand Soni and Manju came back to Ajmer. In the month of May, 1998 Tara Chand Soni took Manju to Gangapur City where demand of money was also made. After leaving Manju at Gangapur City, Tara Chand Soni returned to Ajmer. Manju having suffered cruel treatment at Gangapur City, wrote two letters to his father wherein demand of money was made. When money could not be arranged. Dhani Ram filed divorce petition against Manju, notice of which was sent to her father at Ajmer. Tara Chand Soni some how arranged a sum of rupees one lakh and paid to Dhani Ram and his family members at Gangapur City. Even after receiving money cruel treatment with Manju continued. The incident of cruelty was so grave and unbearable that she committed suicide by consuming poison on August 13, 1998. Tara Chand Soni was informed on telephone about the incident, who rushed to Gangapur City and found Manju dead. Ratan Singh Lamba, Sub-Divisional Magistrate, Gangapur City made inquiry and submitted report (Ex. P-34) at Police Station, Gangapur City. A case under Section 304B, IPC was registered and investigation commenced. On completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Special Judge SC/ST (PA) Cases Sawai Madhopur. Charges under Sections 304B, 306, 498A and 376, IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove.

3. We have heard learned Counsel for the parties and with their assistance weighed the material on record.

4. Learned Counsel identified two issues potentially for the Court to decide:

(i) Whether money demanded from the father of bribe in connection with the transplantation of kidney of the father of bridegroom, comes within the definition of dowry

(ii) Whether soon before her death bridge was subjected to cruelty or harassment for or in connection with the demand of dowry

Issue No. 1

5. The expression dowry is defined by Section 2 of the Dowry Prohibition Act, 1961 (for short the), as meaning anything which is given either directly or indirectly, by one party to a marriage to the other party to the marriage or 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 after the marriage as consideration for the marriage of the said parties. The act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words as consideration for the marriage have been omitted and substituted by the words in connection with the marriage. Now dowry means any property given or agreed to be given by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection with the marriage.

6. Considering the definition of dowry Their Lordships of Supreme Court in Reema Aggarwal v. Anupam, I (2004) DMC 201 (SC) [LQ/SC/2004/35] =I (2004) SLT 466=I (2004) CCR 163 (SC)=2004 (1) WLC (Cr.) 442 (SC), indicated thus:

(Para 14)

The definition of the term dowry under Section 2 of the Dowry Act shows that any property or valuable security given or agreed to be given either directly or indirectly by one party to the marriage to the other party to the marriage at or before or after the marriage as a consideration for the marriage of the said parties would become dowry punishable under the Dowry Act. Property or valuable security so as to constitute dowry within the meaning of the Dowry Act must, therefore, be given or demanded as consideration for the marriage.

7. Interpreting the words in connection with the marriage of the said parties, the Apex Court in Satvir Singh v. State of Punjab, II (2001) DMC 734 (SC)=VI (2001) SLT 803=IV (2001) CCR 75 (SC)=(2001) 8 SCC 633 [LQ/SC/2001/2198] , propounded as under:

The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is at any time after the marriage. The third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies prevalent in different societies. Such payments are not enveloped within the ambit of dowry.

(Emphasis supplied)

8. The word agreement referred in Section 2 has also been considered in Pawan Kumar v. State of Haryana, I (1998) DMC 165 (SC) [LQ/SC/1998/186] =II (1998) SLT 525=I (1998) CCR 265 (SC)=(1998) 3 SCC 309 [LQ/SC/1998/186] , by their Lordships of Supreme Court and it was observed as under:

(Para 16)

Demand for dowry neither conceives nor would conceive of any agreement. The word agreement referred to in Section 2 of the Dowry Prohibition Act, 1961 has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the. Dowry definition is to be interpreted with the other provisions of the including Section 3, which refers to giving or talking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304B, IPC. It is not always necessary that there be any agreement for dowry.

9. In the case on hand the evidence which has been found acceptable by the Trial Court against the appellants is that the cruel treatment and harassment of deceased by them led her to commit suicide which was a death otherwise than under normal circumstances. The prosecution is able to establish from the ocular and documentary evidence that a sum of rupees two lakh was demanded by the appellant husband from the father of deceased for the purpose of transplantation of kidney of his father. When the father of deceased expressed his inability to fulfil the demand, he was threatened by the appellant husband that until the demand was fulfilled he would not keep the deceased with him. The deceased was not allowed by the appellant husband to live with him at Ratlam and was sent back to Ajmer with her father. After the father of deceased fulfilled half of the demand, deceased was allowed to live in her nuptial home. The demand made by the appellant husband was enveloped within the ambit of dowry since it had touched the roots of the marriage. In not fulfilling the demand would mean smashing of marital relations. Since demand for dowry does not conceive of any agreement we are of the view that if persistent demand is made for money from the bride or her parents after marriage, for the purpose of kidney transplantation, it would constitute to be in connection with the marriage and it would be a case of demand of dowry. It was neither related to customary payment nor to other ceremonies prevalent in the society.

10. The principles that may be deduced from the above discussions, are as under:

(i) Any property or valuable security given or agreed to be given either directly or indirectly by one party to the marriage to the other party to the marriage at or before or after the marriage in connection with the marriage of the said parties would become dowry.

(ii) Demand for money or property made after marriage from the bride or from her parents, in not fulfilling of which could result in breaking of marriage, would constitute to be in connection with the marriage and it would be a case of demand of dowry,

(iii) Demand of dowry does not conceive of any agreement.

Issue No. 2

11. That takes us to the question as to whether the appellants have committed the dowry death of Manju Section 113B of the Evidence Act provides that 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 has 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.

12. Analysing the words soon before her death Their Lordships of the Supreme Court in Kamesh Panjiyar v. State of Bihar, I (2005) DMC 321 (SC) [LQ/SC/2005/116] =II (2005) SLT 118=I (2005) CCR 198 (SC)=2005 (1) WLC (SC) Cr. 480, held as under

A conjoint reading of Section 113B of the Evidence Act and Section 304B, IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment for or in connection with the demand of dowry. 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 expression soon before her death is very relevant where Section 113B of the Evidence Act and Section 304B, IPC are pressed into service. 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 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 as indicated by the said expression both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. A reference to the expression soon before used in Section 114 Illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term soon before under Section 114 Illustration (a) 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 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 between the effects 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 mental equilibrium of the woman concerned, it would be of no consequence.

(Emphasis supplied)

13. In K. Prema S. Rao v. Yadla Srinivasa Rao, II (2002) DMC 776 (SC) [LQ/SC/2002/1103] =VI (2002) SLT 168=IV (2002) CCR 286 (SC)=2003 (1) WLC (SC) Cr. 559, Their Lordships of Supreme Court examined the words soon before her death and observed as under:

To attract the provisions of Section 304B, IPC, one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment in connection with the demand for dowry. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased wife by the husband after the marriage to force her to transfer the land in his name was not in connection with any demand for dowry. One of the main ingredients of the offence of demand of dowry being absent in this case, the accused could not be said to have committed offence under Section 304B.

14. Coming to the facts of the instant case we notice that in the last letter (Ex. P-26) recovered from the dead body, Manju @ Babli wrote thus:

(Hindi matter omitted)

15. A bare look at the above letter goes to show that the harassment or cruelty meted by the deceased was not in connection with any demand of dowry. There is no material to show that soon before her death Manju was subjected to cruelty or harassment for or in connection with the demand of dowry. Existence of a proximate and live link between the effects of cruelty based on demand and the death is missing. Manju committed suicide because appellant husband wanted to marry with another girl after divorcing Manju. Clause (a) of the Explanation under Section 498A, IPC defines cruelty to mean a wilful conduct of the husband of such nature as is likely to drive the woman to commit suicide. In the instant case it is established from the ocular and documentary evidence that the appellant husband harassed and did not allow his wife Manju to live with him. He threatened Manju to drag out of his house and informed her that after divorcing her he would marry to another girl. He even instituted divorce petition against Manju without any basis and only to harass her. As a result of such cruel treatment Manju was driven to commit suicide. Thus, offence of abetment of committing suicide punishable under Section 306, IPC is clearly made out against appellant husband Dhani Ram and for that purpose presumption under Section 113A of the Evidence Act can be raised against him. Section 306, IPC and Section 113A, Evidence Act read thus:

306. Abetment of suicide.If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

113A: Presumption as to abetment of suicide by a married woman.When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

ExplanationFor the purposes of this section cruelty shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).

16. From the material on record it is evident that appellant husband is guilty of cruel treatment of his wife, as a result of which she committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word cruelty as mentioned in the Explanation below Section 113A of the Evidence Act has been given the same meaning contained in the Explanation below Section 498A, IPC. On the facts established, the wilful conduct of husband in neglecting and harassing his wife was so cruel that she was driven to commit suicide and the offence; of abetment of committing suicide, punishable under Section 306, IPC is proved against appellant Dhani Ram. We are however of the view that charges under Sections 304 and 498A, IPC are not proved against the appellants Sushila, Samta and Dharmendra beyond reasonable doubt and they are entitled to benefit of doubt.

17. Although charges under Section 306, IPC was not framed against appellant Dhani Ram but omission to frame charge under Section 306, IPC has not resulted in any failure of justice. In Hira Lal v. State (Govt. of NCT) Delhi, II (2003) DMC 206 (SC)=IV (2003) SLT 594=III (2003) CCR 41 (SC)=105 (2003) DLT 705 (SC)=2003 (2) WLC (Cr.) 216 (SC), their Lordships of Supreme Court in a similar situation observed as under:

Though no charge was framed under Section 306, IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under Section 304B, IPC, there is sufficient material to convict the accused-appellants in terms of Section 306, IPC along with Section 498A, IPC.

18. Coming to the Criminal Revision Petition No. 665/2001 we find that there is no evidence against the appellant Dharmendra to establish charge under Section 376, IPC and he was rightly acquitted of the said charges.

19. For these reasons, we dispose of the instant matters in the following terms:

(i) We allow the appeal of appellants Sushila, Ku. Samta and Dharmendra and set aside the order of their conviction and sentence under Sections 304B and 498A, IPC. We acquit them of the said charges. The appellants Sushila and Ku. Samta are on bail, they need not surrender and their bail bonds are discharged. Appellant Dharmendra, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.

(ii) We partly allow the appeal of appellant Dhani Ram and instead of Section 304B we convict him under Section 306, IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000 in default to further suffer six months rigorous imprisonment. We however confirm the conviction and sentence awarded to him under Section 498A, IPC.

(iii) We find no merit in the revision petition and the same stands accordingly dismissed.

(iv) The impugned judgment of learned trial Judge stands modified as indicated above.