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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No.   552 OF 2011   

TUMMALA VENKATESWAR RAO                              …. APPELLANT

VERSUS

THE STATE OF ANDHRA PRADESH                             …. RESPONDENT

JUDGMENT

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 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.

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  

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harass  her  physically  and  mentally  both  for  want  of  Rs.  2,00,000/-   as  

additional  dowry.   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 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 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.  

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 - A3; and Thummala Sreelakshmi – A-4 (husband of A3)  

having been acquitted on the same evidence, the accused is also entitled for  

such an acquittal, in view of the fact no specific allegation that the appellant  

demanded  dowry  has  been  made,  such  allegation  having  been  made  in  

general in respect of all the accused. As rightly pointed out by the learned

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counsel for the prosecution, there is no merit in this submission since there  

is evidence that not only the appellant made a demand of Rs. 2,00,000/-  

along with other accused 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  dowry  when  the  deceased  first  went  to  cohabit  with  him  after  five  

months.  Even after her return to matrimonial 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 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  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 her intention not to live.  PW-5 – Kothapalli Satyanarayana –  

the maternal uncle of the deceased, has also deposed that Neelima 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  include  the  

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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.  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  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/-.   

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  

held by this Court not to mean immediately before the death.

6. This Court in the case of  Kailash versus State of Madhya Pradesh  

(2006) 12 SCC 667 : AIR 2007 SC 107 has observed as under:

“No  presumption  under  Section  113-B  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.

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Mere lapse of some time by itself 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  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 cannot be said that the term “soon before” is  synonymous  with  the  term  “immediately  before”.  This  is  because  of  what  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  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].”

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 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 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  

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only in that case presumption operates. Evidence in  that 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 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  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  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 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 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.”

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  marriage and it  is  shown that  soon before her death she was subjected to cruelty

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and 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  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 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  the  same must  be  discarded.   Apart  from the  fact  that  there  is  a  

difference in a statement appearing 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  on  record  to  hold  that  the  deceased  was  subjected  to  

cruelty and 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:

“113B.  Presumption as to  dowry death.-  When  the question is whether a person has committed the

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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 304B of the Indian Penal Code.”

14. In the circumstances, we find there is no merit in the appeal and the  

same is hereby dismissed.

……..............................………………..J.                                                            [Sudhansu  Jyoti  Mukhopadhaya]

……........................………………………J.                               [ S.A. Bobde ]

New Delhi, December 17, 2013

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