9911796707
TMI Blog2015 (2) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 securit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
