- (1.) S. R. Singh, J. This is an application for bail under Section 439, Cr. P. C. The applicant is incarcerated in jail for the al leged commission of offences under Sec tions 498-A/304-B, I. P. C. and 3/4, Dowry Prohibition Act, registered in case crime No. 34 of 1996 at P. S. Muthiganj, Distt. Al lahabad.
(2.) THE incident in the instant case is said to have come to pass on 24-9-% at about 6 a. m. and the First Information Report of the incident was lodged at the Police Station concerned the same day at about 11. 50 a. m. by one Sri Chandra Nath Pandey father of the deceased Smi. Sandhya. Ramji Sharma, husband and Chandra Devi, mother-in-law of the deceased have also been incupated as accused besides the ap plicant, the father-in-law of the deceased, in the F. I. R. According to the allegations made in the F. I. R. THE deceased was tortured, physically and mentally, by the accused per sons for or in connection with demand of dowry and the consequent suicide by the deceased by setting herself ablaze, was the culmination of unabated torture and ill-treatment, she was subjected to. THE mar riage, according to the F. I. R. , with Ramji Sharma had been solemnised on 4-2-94 and out of the wedlock, a daughter was born on 16-6-96. THE questions surfacing up for con sideration being of substantial importance, may be summed up as below: (1) Whether the commission of suicide by woman within 7 years of her marriage would at tract of Section 304-B, I. P. C. if it is borne out that "soon before her death she was subjected to cruel ty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry or could it at best attract only Section 306, I. P. C. ? (2) Whether a statement, written or oral, given by the woman before committing suicide that her husband and/or any relative of her hus band and been harassing or ill-treating her for, or in connection with any demand for dowry, could be relevant as dying declaration within the pur view of Section 32 (1) of the Evidence Act? (3) Whether Sections 113-A and 113-B of the Evidence Act have brought about any change in suicide and dowry death cases? A bare reading of Sec. 304-B, I. P. C. reflects that where the death of a woman is caused by any burns or bodily injury or oc curs otherwise than under normal cir cumstances within seven years of marriage and it is projected that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her hus band 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 and shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Cruelty for the purposes of Section 304-B of the Penal Code means- (a) "any wilful con duct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental and/or physical) of the woman; (b) harassment of the woman whether such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 113-B of the Indian Evidence Act 1872 postulates that where the question is whether a person has committed 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 connec tion with any demand of dowry, the court shall presume that such person had caused the dowry death. The presumption raised by Section 113-B of the Evidence Act finds its echo in Section 304-B of the Penal Code itself in that such presumption is implicit in the language in which Section 304-B, I. P. C. is couched, particularly the definition of "dowry death" and the fiction created by the expression "shall be deemed to have caused dowry death. " It is lucuiently clear from the language employed by the Parliament in Section 304-B, I. P. C. that where the death of a married woman has occurred, otherwise than under the normal circumstances, within seven years of her marriage and it is shown that soon before her death, the woman was subjected to cruelty or harass ment by her husband or any relative of her husband for or in connection with any demand for dowry, the husband or such rela tive of her husband, as the case may be "shall be deemed to have caused her death. " It is, therefore, evident "that irrespective of the fact whether the accused has any direct con nection with death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned in section are satisfied. " Hem Chand v. State of Haryana, 1995 SCC (Crl.) 36, is the bench-mark authority in aid of the proposition that irrespective of the fact whether the accused had any direct connec tion with the death or not, he shall be presumed to have committed the dowry death provided the other requirements en capsulated in the section are satisfied. It is not necessary for attracting provisions of Sec. 304-B that apart from showing that the death has occurred in unnatural cir cumstances within seven years of her mar riage and that soon before her death, the woman was subjected to cruelty or harass ment by the accused for, or in connection with, any demand for dowry, it must also be shown that the accused had any direct nexus with the death. To reword it, it is not at all essential for attracting the provisions of Sec. 304-B, I. P. C. that the blame must attach directly to the accused for the injuries which resulted in death. Tb rephrase it, the cases of homicide and suicide both can attract Sec tion 304-B, I. P. C. if the same has come about within seven years of the marriage and it is borne out that soon before her death the woman was subjected to cruelty or harass ment by the accused for or in connection with any demand for dowry. The accused in that event would be taken to have com mitted the dowry death punishable under Section 304, I. P. C. The definition 'cruelty' as given in Section 498-A, I. P. C. also leads to the same conclusion. At the same time, the accused may also be exposed to punition under Section 306, I. P. C. for abetting suicide. Section 113-A of the Evidence Act provides that when the question is whether the commission of suicide by a woman has been abetted by her husband or any relative of her husband and it is demonstrated that she had committed suicide within a period of seven years from the date of her marriage and that her hus band or such relative of her husband had subjected her to cruelty, the court may presume having regard to all other cir cumstances of the case, that such suicide had been abetted by her husband or any such relative of her husband. In such a situation, the accused may be punished both under Section 306 I. P. C. as well as Section 304-B in addition to his punition under Section 498-A of the Penal Code. Certain observations made in Lakhjit Singh and another v. State of Punjab, 1994 SCC (Crl.) 235, no doubt, lend support to the view that dowry-related suicide even if committed by a woman within seven years of her marriage in the back-drop of dowry related ill-treatment would attract only Section 306, I. P. C. and not Section 304-B of the Penal Code, but the said decision stands impliedly eclipsed and over-shadowed by the subsequent larger bench decision in Hem Chand v. State of Haryana (supra) wherein the plea that there should be direct link or connection of the accused with the death of the woman tailed off and was specifically repelled. Therefore, where a woman commits suicide by consum ing poison or by handing or otherwise, the accused may be held guilty and be visited with the punishment both under Section 304-B and Section 306 of the Indian Penal Code if the other conditions stipulated in Section 304-B are satisfied and the accused falls short of rebutting the presumptions which the court is entitled to make under Sections 113-A and 113-B of the Evidence Act. To rephrase it, Section 304- B of the Penal Code encompasses within its sweep not only homicide but suicide as well if the incident of suicide takes place within seven years of marriage and was preceded by ill-treatment amounting to "cruelty" or harass ment for, or in connection with, any demand for dowry.
(3.) BEFORE parting with the discussion on the first question, it would be worthwhile to reckon with the scope and ambit of the expression" soon before her death" used in Section 304-B, I. P. C. and Section 113-B of the Evidence Act. The term "soon before" non-doubt, connotes a sense of proximity of time between the dowry related mal-treatment amounting to cruelty and the incident of death but it "cannot be literally construed and practically reduced to cut-and-dried formula of universal application so as to be confined in a strait-jacket. " An isolated inci dent of dowry related ill-treatment amount ing to "cruelty" meted out to the woman in the remote past, may not be independently relevant but if it forms a chain of continuous incidence of ill-treatment amounting to "cruelty" it would certainly became relevant under Sections 6 and 11 (2) of the Evidence Act. That in my opinion, is the appropriate import of the expression "soon before her death" occurring m Section 304-B, I. P. C. and 113-B of the Evidence Act. As regards the Second question, the submission made by Sri V. C. Tiwari, learned Counsel appearing, for the applicant was that the oral statement alleged to have been made by the deceased to her mother, sister and other relatives before the fateful inci dent of burning, would not be admissible as dying declaration under Section 32 (1) of the Evidence Act. Sri D. S. Misra, Counsel appearing for the complainant and Sri G. S. Bisaria, learned Addl. Government Advo cate appearing for the State, urged in op position that the statement made by the deceased to her mother, sister and other relatives regarding dowry related ill-treat ment and harassment before the fateful inci dent would be admissible as dying declara tion under Section 32 (1) of the Evidence Act. The question, in my opinion, is no longer re-integra in view of Sharad v. State of Maharashtra, AIR 1984 SC 1622, where in the following amongst other expositions of law have been propounded by the Apex Court: (i) Section 32 is an exception to the rule of hear-say and makes admissible the statement of a person who dies whether the death is homicide or a suicide provided the statement relates to the cause of death or exhibits circumstances leading to the death; (2) Test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straight-jacket. Where the death is a logical culmination of continuous drama, long in process and is as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context; (3) where the main evidence consists of statement and Setters written by the deceased which are directly connected with or related to her death and which reveal the tell tale story, the said statement will clearly fail within the four corners of Section 32 of the Evidence Act. The distance of time alone in such circumstances would not make the statement irrelevant; and (4) All the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.;