REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     939        OF 2009 [Arising out of Special Leave Petition (Criminal) No. 4432 of 2008]

SURESH KUMAR SINGH     … APPELLANT

Versus

STATE OF U.P.            … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Application of the term ‘soon before her death’ occurring in Section  

304B  of  the  Indian  Penal  Code  (“IPC”  for  short)  in  the  facts  and  

circumstances of the present case is the question involved herein.   

3. Asha Devi (the deceased) was married to the appellant. The date of  

their marriage, however, is in dispute viz. whether the same had taken place

in  the  year  1983  or  in  the  year  1987.   Asha  Devi  was  found  dead  on  

8.12.1993 having suffered extensive burn injuries.  

4. On or about 8.12.1993 at about 5.10 p.m., a First Information Report  

(“FIR” for short) was lodged against the appellant and his family members  

by Ajmer Singh (P.W.1.), brother of the deceased, inter alia alleging:

“I, Ajmer Singh s/o Ranbahadur Singh R/o Nigohi,  P.S. Deeh Janpad Raebareli, my elder sister Asha  Devi  was  married  in  1987  with  Suresh  Kumar  Singh s/o Manbodh Singh at village Budhwar, P.S.  Deeh,  Janpad  Raebareli.   After  marriage  my  brother  in  law,  his  younger  brother  and  sister  Kusuma were harassing her and asking for dowry.  My brother in law demanded Rs.5000/- at the time  of  marriage  of  his  sister.   This  was  told  by  my  sister and gave the money.  Thereafter demand for  more  money,  ring  and  chain  was  made,  in  this  regard she was burnt year ago. I had got her treated  and had asked her to live today on 8.12.1993 at  about 12’O clock.   One unknown person who is  her neighbour came to my house and informed that  your sister  has been done to death and her dead  body is lying and are preparing to cremate her.  I  reached the site and saw my sister who was lying  burnt  and  dead.   I  believe  that  Suresh  Singh,  Zilajeet Singh S/o Manbodh Singh and their elder  sister Kusuma D/o Manbodh Singh S/o Budhwar,  P.S. Deeh, Distt.  Raebareli have burnt and killed  my sister.  Therefore, you are requested to lodge  report and prosecute.”

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5. We  may  furthermore  notice  the  injuries  found  by  the  Autopsy  

Surgeon in his post mortem examination on the body of the deceased, which  

are as under:

“I to III  degree burn on front and back of skull,  neck, front and side of whole chest with upper part  of abdomen, let axilla and whole arm and back of  shoulder  and  scapular  region,  with  exholate  and  pus  coming out  from right  elbow region.   Total  burn about 40%.  

In the opinion of the doctor, the cause of death is shock as a result of  

ante mortem burn injuries.

6. The Investigating Officer filed a charge sheet. Cognizance was taken  

under Section 304B and Section 498A of the IPC.   

The prosecution in support of its case examined four witnesses.  

7. The contention raised on behalf  of  the appellant  were:  (1)  that  the  

death  of  the  deceased  occurred  by  way of  an  accident;  (2)  the  marriage  

having taken place in the year 1983 that is not within a period of seven years  

from the date of her death, Sections 498A and 304B of the IPC were not  

applicable.   

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8. By reason of a judgment and order dated 30.4.1996, the learned trial  

judge while acquitting Smt. Kusuma Devi and Zila Jeet Singh convicted the  

appellant under Section 304B and 498A of the IPC and sentenced him to  

undergo  rigorous  imprisonment  for  seven  years  for  the  offence  under  

Section 304B IPC and to undergo three years rigorous imprisonment and a  

fine of Rs.2000/- for the offence under Section 498A IPC inter alia holding:

(i) The marriage had taken place in the year 1987.

(ii) The prosecution has not been able to prove demand of dowry  

from the family members of the deceased.

(iii) Appellant had made an attempt to cause burn injuries to her one  

year prior to the date of occurrence.

9. An appeal preferred thereagainst by the appellant has been dismissed  

by reason of the impugned judgment.  

10. Mr. Naveen Kumar Singh, learned counsel appearing on behalf of the  

appellant inter alia would submit:

(i) that the trial court and consequently the High Court committed  

a serious error in passing the impugned judgments insofar as  

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they failed to take into consideration that  sufficient  evidence  

had been brought on record to show that marriage took place in  

the  year  1983  and  not  in  the  year  1987  and,  thus,  no  

presumption as envisaged in Section 113A or Section 113B of  

the Indian Evidence Act, 1972 could have been invoked.  

(ii) No evidence having been adduced to show that the deceased  

was  subjected  to  any  cruelty  soon  before  her  death,  the  

impugned judgments are unsustainable.

11. Mr.  Pramod  Swarup,  learned  counsel  appearing  on  behalf  of  the  

respondent, on the other hand, would urge:

(i) In view of the concurrent findings of fact arrived at by the two  

courts  below,  no  interference  therewith  by  this  Court  is  

warranted.

(ii) The term ‘soon before her  death’  do not  envisage  any fixed  

term  and  appropriate  meaning  should  be  assigned  thereto  

having regard to the facts and circumstances of each case.

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(iii) As demand of dowry had been made and an attempt was also  

made to cause burn injuries to her one year prior to the incident  

in question, the impugned judgments are unassailable.

12. Before adverting to the legal contentions raised herein, we may notice  

the deposition of the first informant – Ajmer Singh.  According to him, the  

marriage took place sometime in April – May 1987.  Dowry demands of the  

family of the appellant could not be fulfilled at that time.  One month after  

the marriage, she came back to her maternal home and told her mother and  

other  female  members  that  the  appellant  and  his  family  members  had  

demanded a chain and a ring and also assaulted her.  Six months thereafter  

allegedly while ‘Gauna’ ceremony was being performed, he was informed  

by the deceased that they should give her a ring and a chain as otherwise the  

appellant would kill her.  He was informed by daughter of ‘Maiku’ who was  

married  in  the  village  of  appellant  that  one year  before the  death of  the  

deceased, accused persons had burnt her.  She had brought the deceased and  

got her treated by Dr. Chedi Singh. Accused persons did not provide her any  

treatment and the deceased had a big wound.  After healing she sent the  

deceased back with the cousin of appellant and thereafter the deceased was  

in the house of her husband for six months.   

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In his cross-examination, however, he accepted that the appellant was  

married  only  to  Asha  Devi  alone.   He  denied  the  suggestion  that  the  

marriage took place 14 years prior thereto.  In answer to a question as to the  

name of Shiv Kumari was entered in the voter list of 1988 as the wife of the  

appellant, he stated as under:

“I do not know how the name of Shiv Kumari is  entered  in  the  voter  list  of  1988  as  the  wife  of  Suresh  Kumar  Singh.   I  do  not  know that  Shiv  Kumari w/o Suresh Kumar Singh was elected as  member of village Sabha.”

He  did  not  have  any  document  to  show  that  he  had  made  

arrangements for treatment of his sister.   

He was examined on 16.8.1995.   

Indisputably, on or about 5.9.1995, an application was filed by him  

for correction of his statement, which reads as under-

“It  is  submitted  that  on  16.08.95  statement  of  Applicant  Ajmer  Singh S/o  Ran Bahadur  Singh,  R/o Village Nigohi, P.S. Deeh, District Raibareilly  was recorded.  In Para 3 at Page 4 of the statement  it has been written that, “In our place the name of  girl  is  changed soon after  coming to her in-laws  house, after marriage”, whereas actually Applicant  had deposed that, “At our place the name of girl is  not  changed  soon  after  coming  to  her  in-laws  

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house  after  marriage.”  Hence,  in  the  interest  of  justice, the amendment of the same to this effect is  necessary.

Hence,  it  is  prayed  that  in  the  statement  “is  not  changed” shall be read in place of “is changed”.

Thus, he had accepted in his first deposition that a custom with regard  

to change of the name of the bride by her in-laws prevails in his community.  

13. Indisputably, in the voter’s list of 1983, the name of wife of appellant  

was shown as Raj Kumari.  There appears to be a controversy in regard to  

existence of a custom of changing the name of the bride by her husband’s  

family.  P.W.1, who is elder brother of the deceased even could not point out  

as to in which month the marriage had taken place.  When the defence had  

raised a contention with regard to the date of marriage, it was obligatory on  

the part of the prosecution to prove the same in order to take the benefit of  

the provisions contained in Section 113A and 113B of the Indian Evidence  

Act as also the provisions of Section 498A and 304B of the IPC.  Before a  

person is found guilty of commission of an offence, the court must arrive at  

a firm conclusion that the ingredients thereof had been proved.  For the said  

purpose whereas on the one hand the object of the Parliament in inserting the  

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said provisions must be borne in mind; a satisfaction must also be arrived at  

that the conditions precedent therefor has been fulfilled.   

A voter’s list is a public document.  It is issued under the authority of  

the Election Commission.  The voter’s list published as on 1st January 1988  

showed that Suresh Kumar Singh and Shiv Kumari were husband and wife  

and were  resident  of  House No.  85.   Their  names along with  one Ishraj  

Kumari were shown at Serial Nos. 273, 274 and 275.  The husband’s name  

of Shiv Kumari is shown as that of the appellant.  The voter’s list was in  

relation to the residents of Dostpur, Budhwara.  It is in the aforementioned  

background, the court should have considered the purported application for  

amendment of statement filed by Ajmer Singh on 5.9.1995. On what basis  

such an amendment was directed is not borne out from the records.  The  

learned Sessions Judge, however, relied thereupon to hold that the marriage  

had taken place in the year 1987.   

14. Keeping in view the menace of dowry deaths, the Parliament in the  

year 1983 inserted Section 498A of the IPC  and Section 113A of the Indian  

Evidence Act by Act No. 46 of 1983 and in the year 1986 inserted Section  

304B of the IPC and Section 113B of the Indian Evidence Act by Act No. 43  

of 1986.  Although Section 304B of the IPC came into force with effect from  

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19th November 1986, Section 113B of the Indian Evidence Act came into  

force with effect from 5.1.1986.   

15. The learned trial judge as also the High Court invoked Section 113B  

of the Indian Evidence Act, which reads as under:

“113B. 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 has 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  304B,  of  the  Indian  Penal  Code  (45  of  1860)].”

The  definition  of  ‘dowry  death’  is  incorporated  by  reference  to  

Section 304B of the IPC, which reads as under:

“304B. 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  

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"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.”

Explanation  appended  to  Section  304B defines  dowry  to  have  the  

same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961,  

which reads as under:

“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) applied.”

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We may also notice the provisions of Section 498A of the IPC, which  

reads as under:-

“498A.  Husband  or  relative  of  husband  of  a  woman  subjecting  her  to  cruelty.-  Whoever,  being the husband or the relative of the husband of  a woman, subjects such woman to cruelty shall be  punished with imprisonment for a term which may  extend to  three  years  and shall  also  be  liable  to  fine.

Explanation.--For  the  purpose  of  this  section,  "cruelty" means--

(a) any wilful conduct 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  or  physical) of the woman; or

(b) harassment  of  the  woman  where  such  harassment is with a view to coercing her or  any  person  related  to  her  to  meet  any  unlawful  demand  for  any  properly  or  valuable security or is on account of failure  by her or any person related to her to meet  such demand.”

16. One of the ingredients of Section 304B of the IPC is marriage within a  

period of seven years preceding the death.  No such requirement finds place  

in Section 498A thereof.   

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17. From the evidence of P.W.1, it appears that he had talked of only one  

incident in respect whereof his evidence was admissible in law, that is, when  

the  deceased  came  back  to  her  parental  home six  months  after  ‘Gauna’  

ceremony, she had informed him that if he did not give a ring and a chain,  

the accused persons might kill her.  It is also not in dispute that the matter  

rested at that as he talked to the appellant in that behalf, whereafter he came  

and took her away.  The matter was therefore settled.  There was nothing to  

show that any cruelty or harassment was meted out on that ground thereafter.  

So far as the other incident disclosed by him is concerned, it was one  

which he had heard from his wife and other female members of the family.  

It was, thus, hearsay, as they were not examined.   

18. It is in the aforementioned context, we may consider the effect of the  

term “soon before death”.   

Section 304B of the Code provides for a penal offence.  It  has the  

following ingredients:

(i) The  death  of  a  woman  must  have  been  caused  by  burns  or  

bodily injury or otherwise than under normal circumstances;

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(ii) Such death must  have  occurred within  seven years  from the  

date of the marriage’

(iii) Soon before her death, the woman must have been subjected to  

cruelty  or  harassment  by  her  husband or  any relative  of  her  

husband; and

(iv) Such  cruelty  or  harassment  must  be  in  connection  with  the  

demand of dowry.

19. The harassment which is said to have been caused in connection with  

the  demand  of  dowry  other  than  the  incident  in  question,  as  noticed  

hereinbefore, was one year prior to the incident.   

Would a gap of one year would answer the description of term “soon  

before her death” is the question.  We may, at the outset, notice some case  

laws operating in the field.

In Satvir Singh and Ors. vs. State of Punjab and Anr. [(2001) 8 SCC  

633], this Court held:

“22. It  is not enough that harassment or cruelty  was  caused  to  the  woman  with  a  demand  for  dowry  at  some  time,  if  Section  304B  is  to  be  invoked. But it should have happened "soon before  

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her death". The said phrase, no doubt, is an elastic  expression  and  can  refer  to  a  period  either  immediately before her death or within a few days  or even a few weeks before it. But the proximity to  her death is the pivot indicated by that expression.  The legislative object in providing such a radius of  time  by  employing  the  words  "soon  before  her  death"  is  to  emphasis  the  idea  that  her  death  should, in all probabilities, have been the aftermath  of  such  cruelty  or  harassment.  In  other  words,  there  should be a  perceptible  nexus  between her  death and the dowry related harassment or cruelty  inflicted on her. If the interval elapsed between the  infliction  of  such  harassment  or  cruelty  and  her  death is wide the court would be in a position to  gauge that in all probabilities the death would not  have been the immediate cause of her death. It is  hence  for  the  court  to  decide,  on  the  facts  and  circumstances  of  each  case,  whether  the  said  interval  in  that  particular  case  was  sufficient  to  snuff its cord from the concept  "soon before her  death".  

{See also Harjit Singh vs. State of Punjab [(2006) 1 SCC 463]}

Indisputably, in order to attract the said provision, it is imperative on  

the part of the prosecution to establish that the cruelty or harassment has  

been meted out to the deceased ‘soon before her death’.  There cannot be  

any doubt or dispute that it is a flexible term.  Its application would depend  

upon the factual matrix obtaining in a particular case.  No fix period can be  

indicated therefor.  It, however, must undergo the test known as ‘proximity  

test’.  What, however, is necessary for the prosecution is to bring on record  

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that the dowry demand was not too late and not too stale before the death of  

the victim.

A similar question came up for consideration in Thakkan Jha & Ors.  

vs. State of Bihar [(2004) 13 SCC 348], wherein this Court held:

“This  is  so  because  the  expression  used  in  the  relevant  provision  is  “soon  before”.  The  expression 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.   The  expression  is  pregnant with the idea of proximity test.  It cannot  be said that the term “soon before” is synonymous  with  the  term  “immediately  before”.   This  is  because  of  what  is  stated  in  Section  114  Illustration  (a)  of  the  Evidence  Act.   The  determination of the period which can come within  the term “soon before” is left to be determined by  the  courts,  depending  upon  the  facts  and  circumstances of each case.  Suffice, however, to  indicate  that  the expression “soon before” would  normally  imply  that  the  interval  should  not  be  much between the cruelty or harassment concerned  and the death in question.  There must be existence  of a proximate and live link.

{See also Baldev Singh vs. State of Punjab [(2008) 13 SCC 233]}

Yet again in  Kamesh Panjiyar  Alias Kamlesh Panjiyar  vs.  State of  

Bihar [(2005) 2 SCC 388], this Court held:

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“The  expression  'soon  before'  is  very  relevant  where  Section  113B  of  the  Evidence  Act  and  Section  304B  IPC  are  pressed  into  service.  Prosecution is obliged to show that soon before the  occurrence  there  was  cruelty  or  harassment  and  only in that case presumption operates.  Evidence  in that regard has to be led by prosecution. 'Soon  before' is a relative term and it would depend upon  circumstances  of  each  case  and  no  strait-jacket  formula  can  be  laid  down  as  to  what  would  constitute a period of soon before the occurrence.  It would be hazardous to indicate any fixed period,  and that brings in the importance of a proximity  test both for the proof of an offence of dowry death  as well as for raising a presumption under Section  113B of the Evidence Act.  The expression 'soon  before her  death'  used in the substantive Section  304B IPC and Section 113B of the Evidence Act is  present with the idea of proximity test.”

This Court in Ram Badan Sharma vs. State of Bihar [(2006) 10 SCC  

115] wherein one of us was a Member, held:

“35. There  are  three  main  ingredients  of  this  offence: (a) that, there is a demand of dowry and  harassment by the accused on that count; (b) that,  the deceased died; and (c) that, the death is under  unnatural circumstances within seven years of the  marriage.  When  these  factors  were  proved  by  reliable and cogent evidence, then the presumption  of  dowry  death  under  Section  113B  of  the  Evidence  Act  clearly  arose.  The  aforementioned  ingredients  necessarily  attract  Section 304B IPC.  Section  304B  is  a  special  provision  which  was  inserted by an amendment of 1986 to deal with a  

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large number of dowry deaths taking place in the  country. In the instant case, if the circumstances of  the case are analyzed on the touchstone of Section  304B IPC, all the three basic ingredients of Section  304B I.P.C. are present in the instant case. There  has  been  persistent  demand  of  dowry  and  harassment, humiliation and physical violence and  beating  by  the  husband  and  her  in-laws.  The  deceased  died  under  unnatural  circumstances  within seven years of the marriage.”

{See also Devi Lal vs. State of Rajasthan [2007 (12) SCALE 265 (para 20),  

and State of Rajasthan vs. Jaggu Ram [2008 (1) SCALE 22 (para 11)]}

20. The Law Commission submitted its  91st Report  on “Dowry Deaths  

and Law Reforms: Amending Hindu Marriage Act, 1955, the Indian Penal  

Code, 1860 and the Indian Evidence Act, 1872” wherein it was emphasized  

that there had been an alarming increase in the number of cases in which  

married  woman die  in  circumstances  which,  to  say  the  least,  are  highly  

suspicious.  Those deaths popularly came to be associated with dowry and  

that is why it was given the term ‘dowry death”  

21. Some harassment which had taken place one year prior to the death  

without something more, in our opinion, could not have been considered to  

be a cruelty which had been inflicted soon before the death of the deceased.  

It does not satisfy the proximity test.  

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22. As the death, in our opinion, had not taken place within a period of  

seven years and there is no evidence that any cruelty has been inflicted upon  

the  deceased  soon  before  her  death  neither  the  presumption  in  terms  of  

Section 113B of the Indian Evidence Act could have been drawn nor it could  

be concluded that the appellant is  guilty of commission of offence under  

Section 304B.   

23. In view of our finding that the death did not take place within seven  

years  from the date  of  marriage,  no presumption  could have been raised  

either under Section 113A or under Section 113B of the Indian Evidence  

Act.   

24. We, however, are satisfied that the appellant has rightly been found  

guilty of commission of offence under Section 498A of the IPC.  Sentence  

imposed on him on that count is, therefore, maintained.

25. For  the  aforementioned  reasons,  the  appeal  is  allowed in  part  and  

subject to the aforesaid findings.  

.……………………………….J. [S.B. Sinha]

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...…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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