http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  452 of 2001

PETITIONER: Arvind Kumar & Anr

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 24/07/2007

BENCH: R.V. Raveendran & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       1. Appellants have filed this appeal against the judgment  dated the 23rd June, 2000 passed by a learned Single Judge of  the High Court of Madhya Pradesh at Jabalpur, confirming   the conviction and sentence of 7 years\022 R.I. imposed upon each  of the appellants in respect of offences punishable under  Section 306 of the Indian Penal Code [for short \023IPC\024] and 6  months R.I., each under Section 4 of the Dowry Prohibition  Act, 1961 and fine of Rs. 5,000/- each with default stipulation  for 6 months R.I., awarded by the learned Third Additional  Sessions Judge, District Sagar dated 29th August, 1989 in  Criminal Case No. 517/82.         2. Brief facts, which led to the trial of the appellants, are  as follows:-         3. Arvind Kumar\026accused No.1 is the son of Prem Bai @  Gulabrani\026accused No.2.  On April 26, 1982 Arvind Kumar  married Sadhna, daughter of Bhag Chand (P.W.9) and sister of  Sudarshan Kumar Jain (P.W. 5).  After the marriage of  Sadhna, the accused started harassing and humiliating her for  not bringing adequate dowry articles.  Prosecution alleged that  on 29th June, 1982 both the accused demanded one table fan,  one automatic watch and one almirah from Sadhna.  The  demand of the articles was again repeated on 2nd July, 1982.   Sadhna was unable to satisfy the persistent demand of the  accused.  She was constantly tortured and harassed by the  accused and as a result thereof Sadhna committed suicide by  pouring kerosene oil on her person and setting her body on  fire on 2nd July, 1982.  The incident of suicide had taken place  after one month and seven days of the marriage of the  deceased Sadhna with Arvind Kumar\026accused.  On 3rd July,  1982, the crime report (Ex. P-10) of the death of Sadhna was  reported by Santosh Kumar (P.W. 7), brother of Arvind Kumar  \026accused, to the Police at Check Post Barha, Police Station  Banda.  After receiving the report and preparing First  Information Report, P.W. 12 Rameshwar Prasad, Head  Constable went to the place of incident and held the necessary  Panchnama like seizure of certain articles found near the   scene of offence, got the spot map (Ex. P-11) prepared from  Ram Sewak Khare, Patwari.  The dead body of Sadhna was  sent for post mortem to District Hospital, Khargaon.  After  recording the statements of the material witnesses and after  receipt of post mortem report Ex. P-16 of Dr. J.C. Jain, Medical  Officer, District Hospital Khargaon (P.W. 14) and letter (Ex. P- 14) of the District Magistrate granting sanction of prosecution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

of the accused for an offence under Section 4 of the Dowry  Prohibition Act, 1961, charge sheet was filed against the  accused for offences punishable under Section 306 IPC and  under Section 4 of the Dowry Prohibition Act.        4.  The Prosecution examined as many as 14 witnesses in  support of its version.  In their statements recorded under  Section 313 of the Code of Criminal Procedure, the accused  denied their involvement in the crime.  Arvind Kumar\026  accused stated that Sadhna committed suicide on her own by  pouring kerosene oil on her body because she was mentally  disturbed.  He stated that he is innocent and has been falsely  implicated in the present case.  Smt. Prem Bai\026accused stated  that she used to treat her daughter-in-law (Sadhna) very  affectionately and she had never demanded any dowry article  from the brother or the father of the deceased.  The accused  examined Mohanlal Pathak (D.W. 1) and Chandra Kumar  (D.W. 2) in their defence.  Both these witnesses stated that  Sadhna was a simple girl but was mentally disturbed.         5. Initially both the accused were acquitted on 27th  September, 1983 by the Additional Sessions Judge, Sagar.   The appeal filed by the State against the acquittal order came  to be allowed by the High Court.  The High Court directed the  Trial Court to record further evidence in the case.  The Trial  Court after considering the evidence on record, recorded  conviction and awarded sentence as aforesaid.  The High  Court on reappraisal and re-appreciation of the entire evidence  on record confirmed the conviction and sentence imposed  upon the accused.  Hence this appeal by the accused persons.         6. Learned counsel appearing on behalf of the accused  challenged the judgment of the High Court inter alia  contending that admittedly, Sadhna died within one and a half  month of the marriage, but there is no presumption available  under Section 113A of the Indian Evidence Act, 1872 that  Sadhna  deceased committed suicide owing to harassment or  torture by the accused.  He submitted that provisions of  Section 113A of the Indian Evidence Act as inserted by Act No.  43/1983 [Criminal Law Second Amendment, 1983] is not  retrospective in operation.  He further submitted that the  prosecution has failed to prove the charges against the  accused by leading satisfactory, believable and convincing  evidence and the Trial Court as well as the High Court have  recorded the findings of guilt of the accused on surmises and  conjecture. Lastly, it was submitted that the deceased  committed suicide on her own by pouring kerosene oil on her  body due to her mental ailment.         7. Learned counsel for the State, on the other hand,  submitted that the prosecution has clearly established the  guilt of the accused persons and no exceptions can be taken to  the reasons indicated by the Trial Court in the well-reasoned  judgment.  The evidence has also been analysed in great detail  by the High Court and, therefore, no question of any  interference is called for with the conviction recorded in the  impugned judgment of the High Court.         8. Before we proceed to consider the respective  contentions of the learned counsel for the parties, we, at this  stage, may record that during the pendency of the appeal  before this Court, Smt. Prem Bai \026 accused No.2 has died.  We  have analysed the entire evidence and other material on record  and find that there is no direct or circumstantial evidence led  by the prosecution to prove the charges against deceased Smt.   Prem Bai.  The evidence brought on record against accused  Smt. Prem Bai is not cogent and consistent to establish that  Prem Bai had abetted the commission of the offence of suicide  committed by deceased Sadhna or Prem Bai accused had  tortured or harassed her daughter in law \026 Sadhna for not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

bringing adequate dowry articles at the time of marriage or  thereafter before Sadhna committed suicide.  Therefore, the  conviction recorded and the sentence imposed upon deceased  Prem Bai by the Trial Court  and confirmed by the High Court  cannot be sustained and, accordingly, the judgment of the  High Court to that extent stands set aside.  Deceased Smt.  Prem Bai shall stand acquitted of the offences under Section  306 IPC and Section 4 of the Dowry Prohibition Act.  Fine, if  any, realised from deceased Smt. Prem Bai shall be refunded  to her legal heirs.         9.  So far the conviction of Arvind Kumar is concerned,  we find from scrutiny of the evidence placed on record that  there is reliable, cogent and trustworthy evidence led by the  prosecution to establish his guilt beyond reasonable doubt.   Sudarshan Kumar Jain (P.W. 5) brother of the deceased  Sadhna deposed that the marriage of his sister was settled  with Arvind Kumar \026 accused in the year 1982 and in all a  sum of Rs. 18,000 \026 19,000/- was spent at the time of  marriage ceremony, but at the time of vidaai, Arvind Kumar\026  accused raised additional demand of dowry articles, namely,  one fan, one automatic watch and one iron almirah which they  were not able to meet on that occasion.  He stated that they  assured the accused that after making some arrangement for  money, they would later on give the demanded articles.   However, one radio was given at the time of marriage.  The  father and grandfather of Arvind-accused were not satisfied  with the dowry articles given to Sadhna at the time of her  marriage and she was humiliated and harassed by the family  members of Arvind and she was pressurized to bring  additional dowry articles from her parents\022 house.  He also  stated that considering the greed of the accused, her parents  could arrange for one watch and one fan, but the accused  refused to accept those articles and he demanded valuable  watch and fan of bigger size.  He deposed that his sister was  not properly treated by the accused during her stay with him.   He denied the suggestion of the defence that his sister was  suffering from mental ailment.  Bhag Chand (P.W. 9) father of  the deceased corroborated the testimony of P.W. Sudershan  Kumar and further stated that he had given sufficient dowry  articles to his daughter Sadhna at the time of her marriage  and additional articles demanded by the accused at the time of  vidaai of his daughter were offered to him but the accused  refused to accept those articles as they were not found to his  liking and standard.  Pritam (P.W. 10) is the landlord of P.W.  9.  He is an independent witness.  He deposed that at the time  of vidaai of Sadhna after marriage, her parents offered one  watch and one fan to Arvind accused, who declined to accept  the same as those were not of higher value and of good make.    He stated that he came to know from P.W. 5 that the accused  used to beat Sadhna.        10. From the narration of the facts and evidence on  record, it is not in dispute that Sadhna committed suicide and  died due to injuries as certified by P.W. 14 Dr. J.C. Jain in his  post mortem report (Ex. P-16).  The testimony of P.Ws. 5, 9 and  10 are consistent, reliable and trustworthy to prove that it was  Arvind-accused who constantly harassed, humiliated and  tortured his wife Sadhna for bringing insufficient dowry  articles.  He persistently made demand of sophisticated watch,  fan and iron almirah.  Sadhna was forced to commit suicide  because of the cruel behaviour of the accused.  The defence of  the accused that Sadhna was suffering from mental ailment is  belied by P.W. 2 Sushila Bai, who was a teacher in Naveen  School, Banda where Sadhna was studying.  P.W. 2 Sushila  Bai stated that the behaviour of Sadhna during her student  life in the school was proper and normal.   P.W. 14 Dr. J.C.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Jain was examined by the Trial Court after remand of the case  by the High Court.  His deposition is that there were 100 per  cent burn marks on the body of deceased Sadhna.  Sadhna  had already died before Dr. Shrivastav could reach at the  house of the accused.  The extent of burn injuries found on  the body of the deceased would go to show that no effort  whatsoever was made by the accused to save his wife from  committing suicide though he was present in the house when  such incident took place.  He has not even bothered to call the  doctor and it was his elder brother P.W. 7 Santosh Kumar,  who came from another house and immediately contacted Dr.  Shrivastav and informed him about the precarious condition of  Sadhna.  On scrutiny of the entire evidence on record, we are  of the view that the conduct of the accused-husband was  apathetic, which is an additional circumstance in the link of  the ocular version of PWs.5, 9 and 10 who have supported the  prosecution case in its entirety.  The evaluation of the finding  recorded by the learned Trial Court and accepted by the High  Court does not suffer from any illegality, manifest error or  perversity, nor have the Courts overlooked or wrongly  discarded any vital piece of evidence appearing against the  accused.  Therefore, we hold that the findings of fact as  recorded by the courts below do not call for any interference in  this appeal.         11.  The contention of the learned counsel for the  accused that the presumption enumerated under Section  113A of the Indian Evidence Act is not attracted in the present  case does not merit acceptance.  It is well-settled law that  presumption with respect to the procedural matters is  normally to be construed as prospective.  Section 113A does  not create any new offence or make it punishable.  It only  deals with presumption which the Court may draw in  particular facts situation.  This Court in Gurbachan Singh v.  Satpal Singh reported in AIR 1990 SC 2009 held in para 36 as  under:- \02336.  The provisions of the said Section do  not create any new offence and as such it  does not create any substantial right but it is  merely a matter of procedure of evidence and  as such it is retrospective and will be  applicable to this case.  It is profitable to refer  in the connection to Halsbury\022s Laws of  England, (Fourth Edition), Volume 44 page  570 wherein it has been stated that:

       The general rule is that all statutes,  other than those which are merely  declaratory or which relate only to matters or  procedure or of evidence, are prima facie  prospective and retrospective effect are not to  be given to them unless, by express words or  necessary implication, it appears that this  was the intention of the legislature\005.\024

       12.  In view of the above settled position, the  presumption contemplated under Section 113A is clearly  attracted in the facts of the present case and the accused has  not led any evidence to rebut the said presumption.          13.  No other point was urged by the learned counsel for  the parties.        14. In the result, the conviction recorded and the  sentence imposed upon Arvind Kumar\026accused No.1 by the  Trial Court and confirmed by the High Court are maintained.   Arvind Kumar-accused No.1 is on bail.  He is directed to  surrender before the Trial Court forthwith and to suffer the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

remaining period of sentence.  The appeal of Arvind Kumar is,  accordingly, dismissed.  The conviction and sentence of  second accused is, however, set aside.  Bail/surety bonds in  respect of Smt. Prem Bai shall stand discharged.