It has been reiterated by the Supreme Court yet again in a latest, landmark, learned and laudable judgment titled Sandeep Kumar and others vs State of Uttarakhand in Criminal Appeal Nos. 1512-1513 of 2017 that the offence of dowry death under Section 304B of the Indian Penal Code cannot be made out if the cause of death has not been established as unnatural. The Apex Court also held that it has to be shown that the deceased wife was subjected to cruelty or harassment in connection with demand for dowry soon before her death. Very rightly so!
To start with, this notable judgment authored by Justice KM Joseph for himself, Justice RF Nariman and Justice and Justice Aniruddha Bose of the Apex Court sets the ball rolling by first and foremost observing in para 1 that, “The appellants, who were charged with the offence punishable under Section 304B of the Indian Penal Code (hereinafter referred to as “IPC”) stood acquitted of the said charge by learned sessions judge, Haridwar. However, in appeal carried by the complainant/respondent No.2 herein, the verdict of acquittal was set aside and the appellants after conviction under section 304-B of IPC stand sentenced to undergo imprisonment for life.”
While elaborating on the FIR and facts stated therein, the Bench then observes in para 3 that, “On the basis of the complaint, by second respondent dated 23.01.2011 at 5.00 pm, an FIR was lodged. This led to the appellants finally being charge sheeted for having committed the offence under Section 304B of the IPC. The facts stated in the FIR read inter alia as follows:
The daughter of the second respondent was married to the first appellant on 10.12.2009. After few days of the marriage the appellants who are the husband, father-in-law and mother-in-law of his deceased daughter started harassing her for dowry. About one month ago, his daughter and son -in-law came to his house and remained there for two days. On both these days his son-in-law, namely, the first appellant demanded from him, his sons and sons’ wives a sum of Rupees ten lakhs within 10 to 15 days for the construction of the house. The second respondent expressed his inability. Thereafter, seeing tears of his daughter who said that her parents must pay the amount otherwise they will kill her, she was sent away after being consoled. Thereafter, his daughter is alleged to have phoned him, his family and his relatives thereby informing them that her husband, mother-in-law and father-in-law were torturing her for money and they are provoking her to commit suicide. On 23.01.2011 at about 9.30 am, he received phone call from his deceased daughter to come at Haridwar otherwise they will kill her on that day. So, they went there. The dead body of the daughter was found in the car given by them in marriage. The death of the daughter was caused by poison and the appellants were responsible.”
While dwelling on the findings of the Sessions Judge, the Bench then observes in para 22 that, “The telephonic call, which is made by PW1 on the fateful day cannot be treated as First Information Report and it is just an information given to the police and the FIR marked in the case is that what he had given after seeing the dead body of his daughter. The deceased was married to the first appellant on 10.12.2009. She died on 23.01.2011. The death was within seven years of marriage. The prosecution was unable to prove that the deceased died due to poison. From the search in the house of the deceased, no poisonous substance was found. It is also found that in the Wiper by which vomiting of the deceased was wiped (referred to in the charge sheet noted by us at para 4 of this judgment) it was not proved that this was only poison. In the viscera also, there is no poison. Though there was a long gap in sending the viscera, the appellants could not be blamed for the same. Though, the deceased died at a very young age of 28 years, there is a history of tuberculosis before marriage. He refers to the evidence of the doctors which we have already referred to and also the information provided by the first appellant that he had taken the deceased to the hospital. It was the duty of the investigating officer to record the statements of the last treating doctor. It cannot be said that deceased died due to poison. No injury was found on the body of the deceased as per the inquest report and post mortem. The oral evidence adduced by the prosecution itself ruled out physical cruelty in connection with the dowry.”
While continuing further in the same vein, the Bench then observes in para 23 that, “PW1 and PW2 had deposed about the demand of Rs. 10 lacs. The Sessions Judge even finds that apart from the fact that the said fact is not clearly proved and there are many interpretations about the same asking for such an amount by the accused (first appellant), after the marriage and when he assured that he will return the same, it cannot be a demand for dowry. The Court took the view that all the witnesses admitted that before the marriage and at the time of marriage, there was no demand for dowry by the appellants. Even when she came home, immediately after the marriage, there was no demand for dowry. The Court notes the following contradictions in evidence of PW1 and PW2. PW1 has deposed that one month before the incident, the first appellant and the deceased came to the house at Mawana. There, the first appellant demanded Rs. 10 lacs. PW1 expressed inability. But he pledged ornaments of his wife and gave Rs. 1 lakh. PW2, his son, on the other hand, says that four months before the date of an incident, the first appellant and the deceased came to their house at Mawana and they demanded for Rs. 10 lacs. He pledges the jewellery of his wife and gave Rs. 1 lakh. PW3 has developed this theory further and deposed that PW1 had pledged the jewellery of his daughter-in-law and gave Rs. 1 lakh to the first appellant. This is not the version of either PW1 or PW2. On the basis of contradictions, he finds that there is neither demand for Rs. 10 lacs by the first appellant nor was Rs. 1 lakh given. The deceased was found doing her B.Ed.. DW3, who is the official of the college, has deposed about the deceased attending the college and also the attendance which we have already referred to. It is admitted that while doing B.Ed., the deceased remained with her parents as the college was nearby. She visited her home so many times. There is no report to the police in regard to the harassment for dowry. As told by the deceased regarding the taking of Salfas (poison), it is noted as a serious matter, in which case, the report should have not been lodged which is admittedly not the case. There is no reference as to the date of demand. The car was found registered in the name of PW1. The application for the release of the car which had been taken into custody was made by PW1. This falsified the case of gift set up by the prosecution. The taking of help for some purposes would not fall within dowry (this is with respect to the demand for Rs. 10 lacs). There is ample evidence to show that the deceased was a patient of Tuberculosis and also suffering from Eosinophilia and stomach ache. This may be the cause of her death. It has been found that this is not a dowry death. There is no charge under the Dowry Prohibition Act and Section 498A of the Indian Penal Code and the only charge under Section 304-B not being proved, the appellants were acquitted.
While dwelling on the findings of the High Court in the impugned judgment, the Bench then elucidates in para 24 that, “Though at the solemnization of marriage, there is no discussion of dowry, however, after 2-3 months, the accused and his family members (appellants) started demanding dowry. Thereafter, reference is made to PW8, who deposed that Panchas opined that it was a case of poisoning. The High Court finds that the evidence of DW1 does not reveal that the deceased was suffering from Tuberculosis and that she had Eosinophilia. Referring to the evidence of DW2- Dr. Mamta Tyagi, the High Court says that the deceased was only complaining of stomach ache and discharge of white fluid. The patient has never told the doctor about her Tuberculosis. The treatment also did not relate to the Tuberculosis. The doctor has admitted that Tuberculosis can be cured after six to seven months of treatment. The High Court, thus, concludes that it is in evidence of DW1 and DW2 that deceased was not suffering from Tuberculosis. Thereafter, the High Court goes through evidence of DW4 and finds that the doctor had admitted that once the treatment was taken ten years back for Tuberculosis, there was no question of recurrence of the disease. The deceased had gone to her on 02.12.2009 for the postponement of her menstrual cycle and the marriage took place on 09.12.2009. The deceased has never told the symptoms of Tuberculosis after 02.12.2009. The High Court finds as follows:
“It is thus, evident from the statements of DW1 Dr. K.K. Aggarwal, DW2 Dr. Mamta Tyagi and DW4 Dr. Neera Chandra that Priyanka was not suffering from tuberculosis. She was never treated by them for tuberculosis. DW1 Dr. K.K. Aggarwal has treated Priyanka for common ailment. DW2 Dr. Mamta Tyagi has admitted that the treatment given to Priyanka has nothing to do with tuberculosis”.”
While the key finding of the High Court is then stated in para 27 that, “With regard to medical opinion, it was found that the opinion of the doctor cannot affect the value of deposition of truthful eyewitness. It is found that the appellants have failed to rebut the presumption under Section 113B of the Evidence Act.”
Briefly stated, it is then held in para 28 that, “Then the Court finds that the prosecution has duly proved that the deceased was killed due to cruelty and harassment for dowry and that it proved the ingredients of cruelty and harassment in connection with the demand for dowry immediately before the death.”
Going ahead, para 29 then states that, “On this basis, the appellants were found guilty under Section 304-B read with Section 498A and Sections 3 and 4 of the Dowry Prohibition Act. Thereafter, by exercising power under Section 362 of the CrPC and noticing that there is an error in that the appellants were also wrongly convicted under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act. The conviction thereunder was ordered to be deleted. Thereafter, the appellants were sentenced to undergo imprisonment for life under Section 304-B of IPC.”
More significantly, the Bench then goes on to add in para 37 that, “In this case, as regards the demand for Rs.10 lakhs by the first appellant, there are three striking features. PW1, the complainant and the father of the deceased, deposes that about one month before the death, the deceased and the first appellant came to him at Mawana and first appellant sought Rs.10 lakhs from him and that they will return the money. He being moved by the tears in his daughter’s eyes, pawned his late wife’s jewellery, raised one lakh and gave to the appellant and his daughter. However, PW2, his son, deposed that it was four months before the death that the deceased and the first appellant came to their house at Mawana, asked for Rs.10 lakhs. He sets up the version that he raised one lakh by pawning his wife’s ornaments. Thus, the versions of PW1 and PW2 both as regards time of demand and the manner of raising Rupees One lakh, appear to be clearly contradictory. What is more significant is the further contradiction introduced by PW3 who is the brother-in-law of PW1. He deposes that two months from the incident, he had gone to the home of PW1, who informed him that the in-laws of the deceased are demanding Rs.10 lakhs for the construction of the house for the purpose of rent. PW1 showed his inability. It is important to notice what PW3 next says:
“Thereafter, the in-laws of Priyanka (the deceased) started torturing her badly”.”
More damningly, the Bench then minces no words to hold in para 38 that, “What follows next is the last nail in the coffin of the prosecution version, which completely falsifies what both PW1 and PW2 has deposed. PW3 states that PW1, after pawning ornaments of his son’s wife, paid Rs.1 lakh to the first appellant. The learned Sessions Judge entered findings noting these contradictory versions. He also finds that if the father-in-law is approached for a sum of money after the marriage, on the basis that it will be returned back, it may not amount to a dowry demand.”
Most significantly, the Bench then holds in para 62 that, “As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113B applies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. We have noticed the state of the evidence in this regard. We are also of the view that there was no justification at all for the High Court, in the facts of this case, to have overturned acquittal by the Trial Court.”
Finally, the Bench then concludes by holding in para 63 that, “The High Court, in our view, without any justification, reversed the acquittal. The High Court has sought to draw support from the circumstance that the dead body of the deceased was recovered from the car. The first appellant has a case that he has taken the deceased to certain hospitals. There is also a case that they themselves notified the Police. We find it certainly not a circumstance so as to draw an inference that the deceased died an unnatural death or that the appellants administered poison to her. We would think that the High Court has clearly erred in interfering with the acquittal of the appellants by the High Court. The appeals are only to be allowed. We thus allow the Appeals. The impugned judgment of the High Court is set aside and the judgment of the Sessions Judge is restored. The first appellant who is in custody shall be released unless his custody is required in any other case. As the appellants 2 and 3 are already on bail, their bail bonds shall stand discharged.”
Due to paucity of space, it was just not possible to discuss each and every aspect of this noteworthy judgment. But certainly the key aspects have been discussed. Similarly many relevant and pertinent cases were also mentioned in this judgment like Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 116, Shammugan vs. State of Kerala, AIR 2012 SC 1142 and most significantly Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116. One thing is clear: This learned ruling has once again reiterated that there can be no conviction for the offence of dowry death under Section 304B of IPC if unnatural death is not established.
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh