caselaws
Supreme Court of India
Jivendra Kumar vs Jaidrath Singh & Ors on 26 February, 2015Author: R.F.Nariman
Bench: T.S. Thakur, Rohinton Fali Nariman, Prafulla C. Pant
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2321 OF 2009
RAJINDER SINGH …APPELLANT
VERSUS
STATE OF PUNJAB …RESPONDENT
J U D G M E N T
R.F.Nariman, J.
1. The facts of this case raises questions relating to one of the
two great social evils practiced against the women of this country for
centuries. In the facts presented before us, a young woman consumes
pesticide having been driven to do so by repeated demands being made
on her for money by the family into which she is supposed to merge her
identity. Sati and dowry deaths have plagued this nation for
centuries. Sati – the practice of sending a widow to her husband’s
funeral pyre to burn in it – was first outlawed under British Rule in
1829 and 1830 under the Governor Generalship of Lord William Bentinck
in the Bengal, Madras and Bombay Presidencies. General Sir Charles
Napier, the Commander-in-Chief of the British Forces in India between
1859 and 1861, is supposed to have said to the Hindu Priests who
complained to him about the prohibition of Sati that “the burning of
widows is your custom but in my country, when a man burns a woman
alive, we hang them and confiscate all their property. Let us both,
therefore, act in accordance with our national customs.”
2. It took free India many years before the Commission of Sati
(Prevention) Act, 1987 was passed by Parliament setting down various
offences relating to the commission of Sati and the trial of such
offences by special courts. In this appeal, however, we are confronted
with the other major problem, namely, dowry deaths. Parliament
responded much earlier so far as the prohibition of dowry is concerned
by enacting the Dowry Prohibition Act, 1961 under which minimum
sentences were prescribed as penalty for the giving or taking of
dowry. The specific menace of dowry deaths, however, was tackled by
the introduction of a new provision in 1986 – Section 304B in the
Penal Code together with another new provision Section 113B of the
Evidence Act. These two Sections read 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 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.”
“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 Indian Penal
Code (45 of 1860).”
3. Coming back to the facts of the present appeal, a young woman,
namely, Salwinder Kaur was married to the appellant Rajinder Singh
sometime in the year 1990. On 31st August, 1993, within four years of
the marriage, Salwinder Kaur consumed Aluminium Phosphide, which is a
pesticide, as a result of which her young life was snuffed out. On
the same day, an FIR was lodged against the husband, his older brother
and the older brother’s wife. The trial court after examining the
evidence of the prosecution and the defence, acquitted the appellant’s
older brother and his wife but convicted the appellant under Section
304B and sentenced him to undergo rigorous imprisonment for seven
years, which is the minimum sentence that can be pronounced on a
finding of guilt under the said Section. This was done after
examining in particular the evidence of PW.2 – Karnail Singh, the
father of the deceased woman, PW-3 – Gulzar Singh, his elder brother
and PW-4 – Balwinder Singh, Sarpanch of the village. The High Court
of Punjab and Haryana confirmed the conviction and the sentence vide
the impugned judgment.
4. For the purpose of this appeal it is sufficient to set out the
dead woman’s father’s evidence which has been accepted by the two
courts below.
“I have three daughters and two sons, Paramjit Kaur, Manjit Kaur
and Salwinder Kaur are my daughters. Salwinder Kaur my daughter
was married to Rajinder Singh r/o Bathwala. She was married to
Rajinder Singh four years prior to her death. After one year of
the marriage, my daughter came to me and told that her husband
Rajinder Singh, the brother-in-law Davinder Singh and Gurmit
Kaur, present in court, are demanding money for constructing a
house. She also informed me that they were quarrelling with her
for the said demand of money. At the time of marriage of my
daughter, I had given sufficient dowry according to my status.
I told my daughter that at that moment I am not in possession of
money. However, I gave she-buffalo to my daughter for taking
the same to her in-laws’ house and asked her to pull on with the
parents-in-law. After 7/8 months, when my daughter was again
ill-treated by the accused, she came to me and again demanded
money. The accused, present in court, were demanding and
compelling my daughter to back with a promise that I would visit
her shortly and on the following day, I alongwith my brother
Gulzar Singh, the then Sarpanch Balwinder Singh and Ex-Sarpanch
Hazura Singh went to the house of the accused in village
Bathawals. On arrival at the house of the accused, the accused,
present in court, along with father-in-law of my daughter were
present at their house. Harjinder Singh, my son-in-law along
with Gurmit Kaur and Davinder Singh were also present. I
requested all of them not to quarrel with my daughter on account
of demand of money. I also assured the accused that I would pay
them the said amount at the time of harvesting the crop. The
accused insisted about the demand of money. My daughter
Salwinder Kaur visited my house 15 days prior to her death. I
again pacified my daughter that I would definitely pay the
amount after harvesting the crop. Salwinder Kaur was not happy
for not getting the money from me. She was maltreated by the
accused. After the death of Salwinder Kaur, member panchayat
Harbhajan Singh of V. Bathwala and Davinder Singh accused came
to my house and informed that my daughter has died after
consuming some poisonous substance and I was asked to accompany
them for cremating the dead body.”
5. We have heard learned counsel for the parties. Counsel for the
appellant relied upon the cross-examination of Karnail Singh which is
set out hereinbelow:-
“I do not know if Devinder Singh had separate portion. My
daughter had come to me for the first time 5/6 months after her
marriage, but she did not make any complaint to me regarding the
conduct of the accused persons. She complained to me only after
about a year and she had told me that they wanted to build a
joint house and asked her to bring money for that purpose. I
however did not give any money to her for this purpose. No
written complaint was ever made to the panchayat. I never
talked about it to Balwinder Singh. It is incorrect to suggest
that no demand of money was ever made from my daughter or that I
have deposed falsely.”
6. Based on this, learned counsel argued that the link required
between the demand made being connected with the marriage was snapped
as also the fact that since initially, the complaints were made at
long intervals, no offence under Section 304B could be said to be made
out. Counsel for the State of Punjab reiterated the findings of both
courts and argued in support of the judgment of the High Court.
7. The primary ingredient to attract the offence under Section 304B
is that the death of a woman must be a “dowry death”. “Dowry” is
defined by Section 2 of the Dowry Prohibition Act, 1961, which reads
as follows:
“2. Definition of “dowry”.-In this Act, “dowry” means any
property or valuable security given or agreed to be given either
directly or indirectly-
(a) by one party to a marriage to the other party to the
marriage; or
(b) 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 any time after the marriage] [in connection
with the marriage of the said parties, but does not include]
dower or mahr in the case of persons to whom the Muslim Personal
Law (Shariat) applies.
Explanation I.- [***]
Explanation II.-The expression “valuable security” has the same
meaning as in Section 30 of the Indian Penal Code (45 of 1860).”
8. A perusal of this Section shows that this definition can be
broken into six distinct parts.
1) Dowry must first consist of any property or valuable security
– the word “any” is a word of width and would, therefore,
include within it property and valuable security of any kind
whatsoever.
2) Such property or security can be given or even agreed to be
given. The actual giving of such property or security is,
therefore, not necessary.
3) Such property or security can be given or agreed to be given
either directly or indirectly.
4) Such giving or agreeing to give can again be not only by one
party to a marriage to the other but also by the parents of
either party or by any other person to either party to the
marriage or to any other person. It will be noticed that
this clause again widens the reach of the Act insofar as
those guilty of committing the offence of giving or receiving
dowry is concerned.
5) Such giving or agreeing to give can be at any time. It can
be at, before, or at any time after the marriage. Thus, it
can be many years after a marriage is solemnised.
6) Such giving or receiving must be in connection with the
marriage of the parties. Obviously, the expression “in
connection with” would in the context of the social evil
sought to be tackled by the Dowry Prohibition Act mean “in
relation with” or “relating to”.
9. The ingredients of the offence under Section 304B have been
stated and restated in many judgments. There are four such
ingredients and they are said to be:
(a) death of a woman must have been caused by any burns or
bodily injury or her death must have occurred otherwise than
under normal circumstances;
(b) such death must have occurred within seven years of her
marriage;
(c) soon before her death, she must have been subjected to
cruelty or harassment by her husband or any relative of her
husband; and
(d) such cruelty or harassment must be in connection with the
demand for dowry.
10. This has been the law stated in the following judgments:
Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361;
Bachni Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431,
Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 at 599,
Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185,
Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder
Singh v. State of Punjab, (2014) 12 SCC 582 at 583, Suresh Singh v.
State of Haryana, (2013) 16 SCC 353 at 361, Sher Singh v. State of
Haryana, 2015 1 SCALE 250 at 262.
11. This Court has spoken sometimes with divergent voices both on
what would fall within “dowry” as defined and what is meant by the
expression “soon before her death”. In Appasaheb v. State of
Maharashtra, (2007) 9 SCC 721, this Court construed the definition of
dowry strictly, as it forms part of Section 304B which is part of a
penal statute. The court held that a demand for money for defraying
the expenses of manure made to a young wife who in turn made the same
demand to her father would be outside the definition of dowry. This
Court said:
“A demand for money on account of some financial stringency or
for meeting some urgent domestic expenses or for purchasing
manure cannot be termed as a demand for dowry as the said word
is normally understood. The evidence adduced by the prosecution
does not, therefore, show that any demand for “dowry” as defined
in Section 2 of the Dowry Prohibition Act was made by the
appellants as what was allegedly asked for was some money for
meeting domestic expenses and for purchasing manure.” (at page
727)
12. This judgment was distinguished in at least four other judgments
(see: Bachni Devi v. State of Haryana (2011) 4 SCC 427 at pages 432 to
434; Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at page
185; Surinder Singh v. State of Haryana (2014) 4 SCC 129 at pages 139
to 141 and Raminder Singh v. State of Punjab (2014) 12 SCC 582 at page
586. The judgment was, however, followed in Vipin Jaiswal v. State of
Andhra Pradesh, (2013) 3 SCC 684 at pages 687-688.
13. In order to arrive at the true construction of the definition of
dowry and consequently the ingredients of the offence under Section
304B, we first need to determine how a statute of this kind needs to
be interpreted. It is obvious that Section 304B is a stringent
provision, meant to combat a social evil of alarming proportions. Can
it be argued that it is a penal statute and, should, therefore, in
case of ambiguity in its language, be construed strictly?
14. The answer is to be found in two path-breaking judgments of this
Court. In M. Narayanan Nambiar v. State of Kerala, 1963 Supp. (2) SCR
724, a Constitution Bench of this Court was asked to construe Section
5(1)(d) of the Prevention of Corruption Act, 1947. In construing the
said Act, a penal statute, Subba Rao,J. stated:
“The preamble indicates that the Act was passed as it was
expedient to make more effective provisions for the prevention
of bribery and Corruption. The long title as well as the
preamble indicate that the Act was passed to put down the said
social evil i.e. bribery and corruption by public servant.
Bribery is form of corruption. The fact that in addition to the
word “Bribery” the word “corruption” is used shows that the
legislation was intended to combat also other evil in addition
to bribery. The existing law i.e. Penal Code was found
insufficient to eradicate or even to control the growing evil of
bribery and corruption corroding the public service of our
country. The provisions broadly include the existing offences
under Sections 161 and 165 of the Indian Penal Code committed by
public servants and enact a new rule of presumptive evidence
against the accused. The Act also creates a new offence of
criminal misconduct by public servants though to some extent it
overlaps on the pre-existing offences and enacts a rebuttable
presumption contrary to the well known principles of Criminal
Jurisprudence. It also aims to protect honest public servants
from harassment by prescribing that the investigation against
them could be made only by police officials of particular status
and by making the sanction of the Government or other
appropriate officer a pre-condition for their prosecution. As it
is a socially useful measure conceived in public interest, it
should be liberally construed so as to bring about the desired
object, i.e. to prevent corruption among public servants and to
prevent harassment of the honest among them.
A decision of the Judicial Committee in Dyke v. Elliott,
cited by the Learned Counsel as an aid for construction neatly
states the principle and therefore may be extracted: Lord
Justice James speaking for the Board observes at page 191:
“No-doubt all penal Statutes are to be construed strictly,
that is to say, the Court must see that the thing charged as
an offence is within the plain meaning of the words used,
and must not strain the words on any notion that there has
been a slip, that there has been a casus omissus, that the
thing is so clearly within the mischief that it must have
been intended to be included if thought of. On the other
hand, the person charged has a right to say that the thing
charged although within the words, is not within the spirit
of the enactment. But where the thing is brought within the
words and within the spirit, there a penal enactment is to
be construed like any other instrument, according to the
fair commonsense meaning of the language used, and the Court
is not to find or make any doubt or ambiguity in the
language of a penal statute, where such doubt or ambiguity
would clearly not be found or made in the same language in
any other instrument.”
In our view this passage, if we may say so, restates the
rule of construction of a penal provision from a correct
perspective.”
15. In Standard Chartered Bank v. Directorate of Enforcement,
(2005) 4 SCC 530 at page 547, another Constitution Bench, 40 odd years
later, was faced with whether a corporate body could be prosecuted for
offences for which the sentence of imprisonment is mandatory. By a
majority of 3:2, the question was answered in the affirmative.
Balakrishnan,J. held:
“23. The counsel for the appellant contended that the penal
provision in the statute is to be strictly construed. Reference
was made to Tolaram Relumal v. State of Bombay [(1955) 1 SCR
158 : 1954 Cri LJ 1333] , SCR at p. 164 and Girdhari Lal
Gupta v. D.H. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279] . It
is true that all penal statutes are to be strictly construed in
the sense that the court must see that the thing charged as an
offence is within the plain meaning of the words used and must
not strain the words on any notion that there has been a slip
that the thing is so clearly within the mischief that it must
have been intended to be included and would have been included
if thought of. All penal provisions like all other statutes are
to be fairly construed according to the legislative intent as
expressed in the enactment. Here, the legislative intent to
prosecute corporate bodies for the offence committed by them is
clear and explicit and the statute never intended to exonerate
them from being prosecuted. It is sheer violence to common sense
that the legislature intended to punish the corporate bodies for
minor and silly offences and extended immunity of prosecution to
major and grave economic crimes.
24. The distinction between a strict construction and a more
free one has disappeared in modern times and now mostly the
question is “what is true construction of the statute?” A
passage in Craies on Statute Law, 7th Edn. reads to the
following effect:
“The distinction between a strict and a liberal construction
has almost disappeared with regard to all classes of
statutes, so that all statutes, whether penal or not, are now
construed by substantially the same rules. ‘All modern Acts
are framed with regard to equitable as well as legal
principles.’ ‘A hundred years ago,’ said the court in Lyons’
case [Lyons v. Lyons, 1858 Bell CC 38 : 169 ER 1158] ,
‘statutes were required to be perfectly precise and resort
was not had to a reasonable construction of the Act, and
thereby criminals were often allowed to escape. This is not
the present mode of construing Acts of Parliament. They are
construed now with reference to the true meaning and real
intention of the legislature.”
At p. 532 of the same book, observations of Sedgwick are quoted
as under:
“The more correct version of the doctrine appears to be that
statutes of this class are to be fairly construed and
faithfully applied according to the intent of the
legislature, without unwarrantable severity on the one hand
or unjustifiable lenity on the other, in cases of doubt the
courts inclining to mercy.”
16. Concurring with Balakrishnan,J., Dharmadhikari,J. added:
“36. The rule of interpretation requiring strict construction of
penal statutes does not warrant a narrow and pedantic
construction of a provision so as to leave loopholes for the
offender to escape (see Murlidhar Meghraj Loya v. State of
Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493] ). A penal
statute has to also be so construed as to avoid a lacuna and to
suppress mischief and to advance a remedy in the light of the
rule in Heydon’s case [(1584) 3 Co Rep 7a : 76 ER 637] . A
common-sense approach for solving a question of applicability of
a penal statute is not ruled out by the rule of strict
construction. (See State of A.P. v. Bathu Prakasa Rao [(1976) 3
SCC 301 : 1976 SCC (Cri) 395] and also G.P. Singh on Principles
of Statutory Interpretation, 9th Edn., 2004, Chapter 11,
Synopsis 3 at pp. 754 to 756.)”
17. And Arun Kumar,J., concurring with both the aforesaid Judges,
followed two earlier decisions of this Court as follows:-
“49. Another three-Judge Bench of this Court in a judgment
in Balram Kumawat v. Union of India [(2003) 7 SCC 628] to which
I was a party, observed in the context of principles of
statutory interpretation: (SCC p. 635, para 23)
“23. Furthermore, even in relation to a penal statute any
narrow and pedantic, literal and lexical construction may
not always be given effect to. The law would have to be
interpreted having regard to the subject-matter of the
offence and the object of the law it seeks to achieve. The
purpose of the law is not to allow the offender to sneak out
of the meshes of law. Criminal jurisprudence does not say
so.”
50. In M.V. Javali v. Mahajan Borewell & Co. [(1997) 8 SCC 72 :
1997 SCC (Cri) 1239] this Court was considering a similar
situation as in the present case. Under Section 278-B of the
Income Tax Act a company can be prosecuted and punished for
offence committed under Section 276-B; sentence of imprisonment
is required to be imposed under the provision of the statute and
a company being a juristic person cannot be subjected to it. It
was held that the apparent anomalous situation can be resolved
only by a proper interpretation of the section. The Court
observed: (SCC p. 78, para 8)
“8. Keeping in view the recommendations of the Law Commission
and the above principles of interpretation of statutes we are
of the opinion that the only harmonious construction that can
be given to Section 276-B is that the mandatory sentence of
imprisonment and fine is to be imposed where it can be
imposed, namely on persons coming under categories (ii) and
(iii) above, but where it cannot be imposed, namely on a
company, fine will be the only punishment.”
18. In keeping with these principles, in K. Prema S. Rao and another
v. Yadla Srinivasa Rao and others, (2003) 1 SCC 217, this Court said:
“The legislature has by amending the Penal Code and the Evidence
Act made penal law more strident for dealing with and punishing
offences against married women.”
19. In Reema Aggarwal v. Anupam, (2004) 3 SCC 199, in construing the
provisions of the Dowry Prohibition Act, in the context of Section
498A, this Court applied the mischief rule made immortal by Heydon’s
case and followed Lord Denning’s judgment in Seaford Court Estates
Ltd. v. Asher, where the learned Law Lord held:
“He must set to work on the constructive task of finding the
intention of Parliament, and he must do this not only from the
language of the statute, but also from a consideration of the
social conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must supplement the
written word so as to give ‘force and life’ to the intention of
the legislature.” (at page 213)
The Court gave an expansive meaning to the word `husband’
occurring in Section 498A to include persons who entered into a
relationship with a woman even by feigning to be a husband. The Court
held:
“….It would be appropriate to construe the expression
‘husband’ to cover a person who enters into marital relationship
and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in
any manner or for any of the purposes enumerated in the relevant
provisions Sections 304B/498A, whatever be the legitimacy of the
marriage itself for the limited purpose of Sections 498A and
304B IPC. Such an interpretation, known and recognized as
purposive construction has to come into play in a case of this
nature. The absence of a definition of ‘husband’ to specifically
include such persons who contract marriages ostensibly and
cohabitate with such woman, in the purported exercise of his
role and status as ‘husband’ is no ground to exclude them from
the purview of Section 304B or 498A IPC, viewed in the context
of the very object and aim of the legislations introducing those
provisions.” (at page 210)
20. Given that the statute with which we are dealing must be given a
fair, pragmatic, and common sense interpretation so as to fulfill the
object sought to be achieved by Parliament, we feel that the judgment
in Appasaheb’s case followed by the judgment of Kulwant Singh do not
state the law correctly. We, therefore, declare that any money or
property or valuable security demanded by any of the persons mentioned
in Section 2 of the Dowry Prohibition Act, at or before or at any time
after the marriage which is reasonably connected to the death of a
married woman, would necessarily be in connection with or in relation
to the marriage unless, the facts of a given case clearly and
unequivocally point otherwise. Coming now to the other important
ingredient of Section 304B – what exactly is meant by “soon before her
death”?
21. This Court in Surinder Singh v. State of Haryana (2014) 4 SCC
129, had this to say:
“17. Thus, the words “soon before” appear in Section 113-B of
the Evidence Act, 1872 and also in Section 304-B IPC. For the
presumptions contemplated under these sections to spring into
action, it is necessary to show that the cruelty or harassment
was caused soon before the death. The interpretation of the
words “soon before” is, therefore, important. The question is
how “soon before”? This would obviously depend on the facts and
circumstances of each case. The cruelty or harassment differs
from case to case. It relates to the mindset of people which
varies from person to person. Cruelty can be mental or it can be
physical. Mental cruelty is also of different shades. It can be
verbal or emotional like insulting or ridiculing or humiliating
a woman. It can be giving threats of injury to her or her near
and dear ones. It can be depriving her of economic resources or
essential amenities of life. It can be putting restraints on her
movements. It can be not allowing her to talk to the outside
world. The list is illustrative and not exhaustive. Physical
cruelty could be actual beating or causing pain and harm to the
person of a woman. Every such instance of cruelty and related
harassment has a different impact on the mind of a woman. Some
instances may be so grave as to have a lasting impact on a
woman. Some instances which degrade her dignity may remain
etched in her memory for a long time. Therefore, “soon before”
is a relative term. In matters of emotions we cannot have fixed
formulae. The time-lag may differ from case to case. This must
be kept in mind while examining each case of dowry death.
18. In this connection we may refer to the judgment of this
Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000
SCC (Cri) 935] where this Court considered the term “soon
before”. The relevant observations are as under: (SCC pp. 222-
23, para 15)
“15. … ‘Soon before’ 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. This expression is pregnant with the idea of
proximity test. The term ‘soon before’ is not synonymous
with the term ‘immediately before’ and is opposite of the
expression ‘soon after’ as used and understood in Section
114, Illustration (a) of the Evidence Act. These words would
imply that the interval should not be too long between the
time of making the statement and the death. It contemplates
the reasonable time which, as earlier noticed, has to be
understood and determined under the peculiar circumstances
of each case. In relation to dowry deaths, the circumstances
showing the existence of cruelty or harassment to the
deceased are not restricted to a particular instance but
normally refer to a course of conduct. Such conduct may be
spread over a period of time. If the cruelty or harassment
or demand for dowry is shown to have persisted, it shall be
deemed to be ‘soon before death’ if any other intervening
circumstance showing the non-existence of such treatment is
not brought on record, before such alleged treatment and the
date of death. It does not, however, mean that such time can
be stretched to any period. Proximate and live link between
the effect of cruelty based on dowry demand and the
consequential death is required to be proved by the
prosecution. The demand of dowry, cruelty or harassment
based upon such demand and the date of death should not be
too remote in time which, under the circumstances, be
treated as having become stale enough.”
Thus, there must be a nexus between the demand of dowry, cruelty
or harassment, based upon such demand and the date of death. The
test of proximity will have to be applied. But, it is not a
rigid test. It depends on the facts and circumstances of each
case and calls for a pragmatic and sensitive approach of the
court within the confines of law.”
22. In another recent judgment in Sher Singh v. State of Haryana,
2015 (1) SCALE 250, this Court said:
“We are aware that the word ‘soon’ finds place in Section 304B;
but we would prefer to interpret its use not in terms of days or
months or years, but as necessarily indicating that the demand
for dowry should not be stale or an aberration of the past, but
should be the continuing cause for the death under Section 304B
or the suicide under Section 306 of the IPC. Once the presence
of these concomitants are established or shown or proved by the
prosecution, even by preponderance of possibility, the initial
presumption of innocence is replaced by an assumption of guilt
of the accused, thereupon transferring the heavy burden of proof
upon him and requiring him to produce evidence dislodging his
guilt, beyond reasonable doubt.” (at page 262)
23. We endorse what has been said by these two decisions. Days or
months are not what is to be seen. What must be borne in mind is that
the word “soon” does not mean “immediate”. A fair and pragmatic
construction keeping in mind the great social evil that has led to the
enactment of Section 304B would make it clear that the expression is a
relative expression. Time lags may differ from case to case. All that
is necessary is that the demand for dowry should not be stale but
should be the continuing cause for the death of the married woman
under Section 304B.
24. At this stage, it is important to notice a recent judgment of
this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which
the law was stated thus:
“The expression “soon before” is a relative term as held by this
Court, which is required to be considered under the specific
circumstances of each case and no straight jacket formula can be
laid down by fixing any time of allotment. It can be said that
the term “soon before” is synonyms with the term “immediately
before”. The determination of the period which can come within
term “soon before” is left to be determined by courts depending
upon the facts and circumstances of each case.” (at page 646)
25. We hasten to add that this is not a correct reflection of the
law. “Soon before” is not synonymous with “immediately before”.
26. The facts of this appeal are glaring. Demands for money were
made shortly after one year of the marriage. A she-buffalo was given
by the father to the daughter as a peace offering. The peace offering
had no effect. The daughter was ill-treated. She went back to her
father and demanded money again. The father, then, went along with his
brother and the Sarpanch of the village to the matrimonial home with a
request that the daughter be not ill-treated on account of the demand
for money. The father also assured the said persons that their money
demand would be fulfilled and that they would have to wait till the
crops of his field are harvested. Fifteen days before her death,
Salwinder Kaur again visited her parents’ house on being maltreated by
her new family. Then came death by poisoning. The cross-examination
of the father of Salwinder Kaur has, in no manner, shaken his
evidence. On the facts, therefore, the concurrent findings recorded
by both the courts below are upheld. The appeal is dismissed.
…………………………………….J.
(T.S. Thakur)
……………………………………..J.
(R.F. Nariman)
……………………………………..J.
(Prafulla C. Pant)
New Delhi,
February 26, 2015.
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