MANOHAR LAL Vs STATE OF HARYANA
Bench: SUDHANSU JYOTI MUKHOPADHAYA,DIPAK MISRA
Case number: Crl.A. No.-001188-001188 / 2009
Diary number: 23316 / 2007
Advocates: RAMESHWAR PRASAD GOYAL Vs
SANTOSH SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1188 OF 2009
MANOHAR LAL … APPELLANT
VERSUS
STATE OF HARYANA …RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal is directed against the judgment dated 26th
March, 2007 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No.529-SB of 1994. By the impugned
judgment the High Court dismissed the appeal and upheld the
conviction and sentence of the appellant under Section 304B IPC
for which he stands sentenced to undergo RI for seven years.
2. The case of the prosecution is that Phullan @ Darshana,
(deceased) was married to the accused-Manohar Lal about 5 years
prior to her death which took place on 27th August, 1991. She was
subjected to harassment for dowry and finally she died on account
of burn injuries. Raj Rani (PW-1), mother of the deceased on
learning about the incident, went to Civil Hospital and found the
victim dead. Thereafter she made statement (Exh.PD) before the
Police at 12.05 P.M. on 28th August, 1991, on the basis of which
FIR was registered. Apart from the appellant, his brothers
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Krishan Lal, Harbans Lal, his father Gopal Dass, mother Shanti
and wife of the brother Smt. Champa were also made accused.
ASI Surat Kant (PW.9) investigated the case and recorded
the D.D.R.-Ex. P.M. on the statement of Hans Raj(PW.8) and Sat
Pal. He then alongwith the above-said persons went to the house
where the death took place and prepared the inquest report
-Ex.P.H./1. He took into possession one pipi -Ex. P.7, steel bowl
-Ex. P-8, burnt match sticks Ex.P.9 to Ex.P.11 and half burnt
piece of cloth alongwith some cash. .After sealing the same into
separate parcels with the seal of SK, vide recovery memo Ex. P.N.
attested by PWs site plan-Ex.P.O. was also prepared by him with
correct marginal notes. Photographs of the dead body were also
taken by Swaran Kumar (PW.7). The dead body was sent to the
Civil Hospital, through constable Krishan Lal, for post-mortem
examination. On the next day, Raj Rani(PW.1) made her statement
-Ex.P.D. on which endorsement -Ex.PD/1 was made and on the basis
of which formal FIR -Ex.P.D./2 was recorded by ASI- Ram
Krishna. Krishan Lal, Constable produced before him one pair
of ear rings of gold which were made into a parcel and sealed
with the seal SK and taken into possession vide recovery memo
Ex.P.P.. The accused were arrested on 30th August, 1991 and dowry
articles were recovered and were taken into possession vide memo
Ex.P.O. Complainant-Raj Rani (PW.1) also produced before him the
list of Kanayadan Mark A. After completion of the investigation,
all the accused were charge-sheeted for offence under Section
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498-A /34 IPC and Section 304B/34 IPC, to which the accused
pleaded not guilty and claimed trial.
3. The prosecution examined altogether nine witnesses and
placed on record the documentary evidence. Defence also produced
Ram Prakash as defence witness. The Trial Court after hearing the
parties and on appreciation of evidence by the judgment dated
25th August, 1994 convicted the appellant for the offence
punishable under Section 304B IPC and sentenced him to undergo
RI for seven years. The rest of the accused i.e. his brothers
Krishan Lal, Harbans Lal, his father Gopal Dass, mother Shanti
and wife of the brother Smt. Champa were acquitted by the Trial
Court on the ground that they were all residing separately at a
far place from the place of occurrence where deceased was living
with the appellant.
4. Learned counsel for the appellant made the following
submissions:
(a) There was inordinate delay of twenty hours in lodging
FIR.
(b) The prosecution failed to prove that accused harassed
the deceased ‘soon before the death’ for or in
connection with the demand of dowry.
(c) Satpal, son of Bodha Ram and Puran Chand in their
statements under Section 174 Cr.P.C. did not say
anything about cruelty on account of demand of dowry.
(d) The accused Manohar Lal married with Darshana @ Phoolan
eight years prior to her death. Therefore, provisions
of Section 304B IPC is not attracted in this case.
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5. Raj Rani (PW.1), mother of the deceased- Darshana @Phullan
stated that the accused married her daughter about five years
back. The accused used to harass her daughter on account of
inadequacy of dowry and used to make demands for cash.
According to PW-1, the accused made a demand of Rs. 10,000/-
which she could not meet. All the accused persons used to give
beatings to Darshana @ Phullan and she was pressurized to bring
more items of dowry while sufficient dowry was given to the
accused at the time of marriage. Initially for about eight days,
the accused kept her daughter nicely but thereafter she used to
be harassed and beaten by the accused repeatedly. During the life
time of father of the deceased, he used to meet the dowry demands
of the appellant. The deceased used to complain that her husband
was not allowing her to stay in the matrimonial home unless some
payments were made and the complainant(PW.1) had been paying her
money and used to sent her back to the matrimonial house by
meeting the demands of the appellant.
6. One day prior to the last Rakhi festival, Jindu Ram-father-
in-law of PW.1 went to the house of in-laws of Darshana@Phullan
to meet her and on his return, Jindu Ram (father-in-law of PW.1)
informed her that Darshana @ Phullan told that she was beaten by
the accused after taking liquor and it was not possible for her
to live in the matrimonial house. This information was given to
PW.1 by her father-in-law in presence of her maternal uncle Devi
Lal.
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7. She further stated that about 8-9 months after the rakhi
festival, her daughter-Darshana @ Phullan died. She had been
killed by her-in-laws. She then came to Yamuna Nagar and saw the
dead body of her daughter having external injuries on her dead
person which appeared to have been caused on being strangulated.
Policed recorded the statement of PW.1 and took thumb impression
which was marked as Ext.PD. The above statement is not supported
by any evidence and contradictory to post mortem report, which
shows that the death was due to shock resulting from burns.
8. During the cross-examination, she stated that she made the
statement before the police that till the death of her husband,
he was meeting the demands of the accused through her daughter
and used to give money and other articles. During the cross-
examination, she further stated that she was informed by Jindu,
her father-in-law that the deceased was being beaten by her
husband after consuming liquor and that she wanted the matter to
be settled once for all. When confronted with the statement-
EX.P.D. it was found that no such statement was given before the
police. Her statement that her maternal uncle was also present,
when confronted with Ex.P.D., it was not found recorded. Jindu,
father-in-law of PW.1 also did not support the case of the
prosecution. Therefore, he was declared hostile.
9. PW.5 -Smt. Usha Rani, neighbor of the deceased also did not
support the story of the prosecution. Therefore, she was also
declared hostile.
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10. PW.3 -Dr.N.K.Garg had conducted post-mortem examination of
deceased-Darshana @Phullan on 28th August, 1991 at 12.30P.M. Dr.
A.K. Gupta was also present with PW.3. Carbon copy of post-mortem
report indicates that death was due to shock resulting from
burns. PW.4 -Om Parkash, draftsman had prepared the site plan
-Ex.P.J. of the place of occurrence.
11. PW.5-Usha Rani as stated above, informed that Manohar Lal
was residing with his wife-Darshana @ Phullan and she did not
know how deceased-Darshana @ Phullan was treated by her husband.
In her cross-examination, she stated that when she asked, the
deceased told her that husband had beaten her. But she did not
state the specific date of the incident. PW.5 was also declared
hostile.
12. PW.6-Ram Mehar Singh, Constable tendered his affidavit
Ex.P.M. in evidence. PW.7-Sarwan Kumar- Photographer went to the
house of accused-Manohar Lal and took three photographs- Ex.P.1
to Ex.P.3 and the positives are Ex.P.4 to Ex.P.6. PW.8-Hans Raj
alongwith Sat Pal saw smoke coming out from the house of Manohar
Lal. They went there and saw that one girl was lying burning.
They went to police post and lodged report Ex.P.M. Then they came
back with the police and were asked by the police to go to the
village Antawa to inform the parents of the accused that their
Bahu had died. Then they went there and informed accordingly.
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13. PW.9-ASI Surat Kant, Investigating Officer supported the
prosecution story and submitted the report of FSL as evidence
Ex.P.R.
14. After closing of the prosecution evidence, the accused were
examined under Section 313 Cr.P.C. on all the material
particulars appearing against them. Accused-Manohar Lal admitted
his marriage with the deceased. He denied the other allegations
against him. He took specific plea that he had separated from his
parents just after the marriage and was living at Yamuna Nagar.
He pleaded innocence and stated that for the last 4 or 5 years,
he was working with Prakash Transport as driver and was living
happily with his wife. A daughter was also born out of their
wedlock. He never made any demand of dowry and never maltreated
the deceased- Darshana @ Phullan . He also stated that his wife-
deceased Darshana @ Phullan got her cousin sister Santosh engaged
with his brother Kishan about 2 years prior to the incident.
About 2 ½ months before the incident, his brother refused to
accept the proposal of relationship due to which relations
between his in-laws and his parents became strained. They
stopped visiting his parents and his parents also stopped
visiting his in-laws. On the day of occurrence, he was away and
on return in the evening he found his wife dead. He alleged that
his in-laws were demanding money which he did not give, and as a
result, false case of dowry-death got registered against him.
15. In defence, the accused produced Ram Prakash, owner of
Prakash Transport. He stated that on 26th August, 1991, accused-
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Manohar Lal was employed with him as driver of a truck and went
to Kaithal. He came back at 5.00P.M. and told him about the
incident. He handed over the accused-Manohar Lal to the police.
16. Section 304B IPC relates to dowry death and 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 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 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. 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 imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
17. For the purpose of the said Section, a presumption can be
raised only on proof of the following essentials:
(a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.
(b) Such death took place within seven years of her marriage.
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and
(e) Such cruelty or harassment was soon before her death.
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In this connection, we may refer decision of this Court in
Kaliaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828.
18. In Sunil Bajaj vs. State of M.P., (2001) 9 SCC 417, this
Court held:
“5. We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and re- luctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on re- cord. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the ne- cessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied: (1) the death of a woman must have been caused by
burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of
her marriage; (3) soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in
connection with demand of dowry. 6. It is only when the aforementioned ingredients
are established by acceptable evidence such death shall be called “dowry death” and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprison- ment for life. Unlike under Section 498-A IPC, hus- band or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establish- ment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an ex- ception is made by deeming provision as to nature of death as “dowry death” and that the husband or his
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relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scru- tinizing the evidence and in arriving at the conclu- sion as to whether all the abovementioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned counsel for the appellant could not dispute that the first two ingredients men- tioned above are satisfied.”
19. The expression “soon before her death” used in the Section
304B IPC and Section 113B of the Evidence Act was considered by
this Court in Hira Lal & Others vs. State (Govt. of NCT), Delhi,
(2003) 8 SCC 80,which reads as under:
“8. Section 304-B IPC which deals with dowry death, reads as follows:
“304-B. 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 marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relat- ive 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.
Explanation.—For the purpose of this sub-sec- tion, ‘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 pun- ished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Sec-
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tion 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as fol- lows:
“113-B. 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 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 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impedi- ment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain es- sentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inser- ted. As per the definition of “dowry death” in Sec- tion 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the es- sential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials men-
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tioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.)
(2) The woman was subjected to cruelty or har- assment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.”
Similar observation was made by this Court in Balwant Singh and
Another vs. State of Punjab (2004) 7 SCC 724. In the said case
this Court held:
“10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that “soon before” is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circum- stances of each case. The facts must show the ex- istence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim.”
20. In the present case, from the statement of PW.1 it appears
that the death took place within seven years of marriage. Admit-
tedly, death of the deceased was due to burning i.e. not in nor-
mal circumstances. We have to see now whether the remaining two
ingredients are satisfied looking into the evidence on record.
21. The statement of the complainant PW.1 is general and not
specific. No specific incidence has been indicated suggesting
the cruelty or harassment made by the accused-Manohar Lal. Her
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statement is not reliable and not trustworthy. Though the alle-
gation of demand of dowry was made none of the witnesses includ-
ing PW.1 stated that the deceased was harassed “soon before her
death” for or in connection with demand of dowry. The accused
appellant was charge-sheeted under Sections 498-A and 304-B IPC
but the Trial Court has not convicted the accused under Section
498-A. In this background, we are of the opinion that the prose-
cution has miserably failed to prove that the accused harassed
the deceased soon before her death for or in connection with a
demand of dowry.
22. For the reasons aforesaid, the judgment passed by the Trial
Court dated 26th August, 1994 as upheld by the High Court by im-
pugned judgment dated 26th March, 2007, cannot be upheld. They
are accordingly set aside. The accused-Manohar Lal is acquit-
ted from the charge under Section 304B IPC. The appeal is al-
lowed. Bail Bonds, if any, stand discharged.
………………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………………………J.
(DIPAK MISRA)
NEW DELHI,
JULY 01, 2014.
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ITEM NO.1E COURT NO.6 SECTION IIB (For Judgment)
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1188/2009
MANOHAR LAL Appellant(s)
VERSUS
STATE OF HARYANA Respondent(s)
Date : 01/07/2014 This appeal was called on for pronouncement of Judgment today.
For Appellant(s) Mr. Rameshwar Prasad Goyal ,Adv.
For Respondent(s) Mrs. Santosh Singh ,Adv.
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced
the reportable judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Dipak Misra.
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The appeal is allowed in terms of the signed reportable judgment.
(MEENAKSHI KOHLI) (USHA SHARMA) COURT MASTER COURT MASTER
[Signed reportable judgment is placed on the file]