REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1081 OF 2010

(Arising out of SLP (Crl.) No.5450 of 2009)

Durga Prasad & Anr.          … Appellants   

Vs.

The State of M.P. … Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal is directed against the judgment  

and order dated 28th April, 2009, passed by Jabalpur

Bench of the Madhya Pradesh High Court, dismissing  

Criminal  Appeal  No.103  of  2000,  which  had  been  

directed  against  the  judgment  of  conviction  and  

sentence  under  Section  498-A  and  Section  304-B  

Indian  Penal  Code.   By  the  said  judgment,  the  

learned Sessions Judge had sentenced the Appellants  

to undergo rigorous imprisonment for 3 years and to  

pay a fine of Rs.1,000/- and in default of payment  

of  fine  to  undergo  rigorous  imprisonment  for  3  

months  under  Section  498-A  IPC  and  to  undergo  

rigorous imprisonment for 7 years and to pay a fine  

of Rs.5,000/- and in default of payment of such  

fine,  to  undergo  rigorous  imprisonment  for  a  

further period of 3 years.  Upon consideration of  

the materials on record, the High Court was of the  

view  that  the  prosecution  had  proved  its  case  

beyond all reasonable doubts and that the appeal,  

therefore, deserved to be dismissed.

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3. Appearing in support of the appeal, Mr. R.P.  

Gupta, learned Senior Advocate, contended that both  

the  Courts  below  had  erred  in  convicting  the  

Appellants on the basis of evidence on record.  Mr.  

Gupta submitted that in the absence of any evidence  

to prove the charges under Sections 304-B and 498-A  

IPC, the trial Court, as also the High Court, had  

erred  in  merely  relying  on  the  presumption  

available under Section 304-B regarding the death  

of  a  woman  by  any  burn  or  bodily  injury  or  

otherwise than under normal circumstances, within 7  

years of her marriage, in coming to a conclusion  

that there would be a natural inference in such  

circumstance under Section 113-A and 113-B of the  

Indian Evidence Act, 1872, that the accused persons  

had caused the death of Kripa Bai by torturing her  

physically and mentally so as to drive the deceased  

to commit suicide.  Mr. Gupta submitted that both  

the Courts below appear to have overlooked the fact  

that in order to prove a case of dowry death it  

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would have to be shown that in addition to the fact  

that the death took place otherwise than in normal  

circumstances within 7 years of marriage, that soon  

before her death, the wife was subjected to cruelty  

or harassment by her husband or any relative of her  

husband for, or in connection with, any demand for  

dowry.  It was pointed out by Mr. Gupta that in the  

explanation to Sub-Section (1) of Section 304-B it  

had been mentioned that for the purpose of the said  

Sub-Section, “dowry” shall have the same meaning as  

under Section 2 of the Dowry Prohibition Act, 1961.  

4. Mr. Gupta also submitted that the provisions of  

Section 113-A of the Indian Evidence Act were not  

applicable in this case since no case for abetment  

of suicide by the husband or any of the husband’s  

relatives had been alleged.  On the other hand, the  

case sought to be made out is one under Section  

113-B relating to presumption as to dowry death.  

Mr. Gupta submitted that the provisions in Section  

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113-B relating to presumption as to dowry death are  

similar to that of Section 304-B IPC.  He urged  

that in order to arrive at the presumption of dowry  

death, it would have to be shown by the prosecution  

that soon before her death, such woman had been  

subjected  to  cruelty  or  harassment  for,  or  in  

connection with, any demand for dowry, which would  

lead to a presumption that such person caused the  

dowry death.

5. Mr. Gupta submitted that in the instant case,  

the  Appellants  had  not  been  convicted  under  the  

provisions of the Dowry Prohibition Act, but under  

Section 304-B and 498-A IPC.  Mr. Gupta submitted  

that the prosecution had not established that prior  

to the death of the victim Kripa Bai, she had been  

either subjected to cruelty or harassment for, or  

in  connection  with,  any  demand  for  dowry,  

particularly,  when  the  Appellants  had  not  been  

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convicted  under  the  provisions  of  the  Dowry  

Prohibition Act, 1961.

6. It was pointed out that the only evidence on  

which reliance had been placed both by the trial  

Court, as well as the High Court, for convicting  

the  Appellants,  was  the  evidence  of  Vimla  Bai,  

PW.1, the mother of the deceased and Radheshyam,  

PW.3, the brother of the deceased.  In fact, the  

prosecution story was that since no dowry had been  

received from the family of the victim, she had  

been beaten and treated with cruelty.  There is no  

other evidence regarding the physical and mental  

torture which the deceased was alleged to have been  

subjected to.  Mr. Gupta urged that the marriage of  

the Appellant No.1 with the deceased was performed  

as part of a community marriage being celebrated on  

account of the poverty of couples who could not  

otherwise meet the expenses of marriage and that  

even the few utensils which were given at the time  

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of  such  community  marriage  were  given  by  the  

persons who had organized such marriages.

7. Mr. Gupta submitted that the evidence in this  

case was wholly insufficient to even suggest that  

the  victim  had  been  subjected  to  cruelty  or  

harassment which was sufficient to compel her to  

commit suicide.  In support of his submissions, Mr.  

Gupta  firstly  referred  to  the  decision  of  this  

Court in Biswajit Halder @ Babu Halder & Ors. vs.  

State of W.B. [(2008) 1 SCC 202], wherein, in facts  

which were very similar, it was held that there was  

practically no evidence to show that there was any  

cruelty or harassment for, or in connection with,  

the demands of dowry.  There was also no finding in  

that regard.  It was further observed that this  

deficiency  in  evidence  proved  fatal  for  the  

prosecution case and even otherwise mere evidence  

of  cruelty  and  harassment  was  not  sufficient  to  

attract Section 304-B IPC.  It had to be shown in  

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addition  to  that  such  cruelty  or  harassment  was  

for, or in connection with, demand of dowry.  Mr.  

Gupta urged that since the Appellants had not been  

convicted  under  the  provisions  of  the  Dowry  

Prohibition  Act,  1961,  the  charge  under  Section  

304-B would also fail since the same was linked  

with the question of cruelty or harassment for, or  

in connection with, the demand for dowry.   

8. Mr. Gupta then urged that even the evidence of  

PW.3,  Radheshyam,  and  also  that  of  PW.2,  Ashok  

Kumar,  were  full  of  omissions  as  to  their  

statements before the police authorities and their  

evidence  during  the  trial.   Mr.  Gupta  submitted  

that  such  omissions  were  also  fatal  to  the  

prosecution  case  since  the  same  was  mere  

embellishment and improvement of the evidence led  

by  the  prosecution.   In  this  regard,  Mr.  Gupta  

referred  to  the  decision  of  this  Court  in  Shri  

Gopal & Anr. vs.  Subhash & Ors. [(2004) 13 SCC  

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174].  In the said decision, while dealing with  

statements  made  by  prosecution  witnesses  under  

Section 162 Cr.P.C. and omissions made during their  

evidence in Courts, this Court held that the same  

would amount to contradiction and their evidence on  

such point would not, therefore, be acceptable.

9. Mr. Gupta urged that both the trial Court, as  

well  as  the  High  Court,  did  not  take  into  

consideration any of the aforesaid matters while  

convicting the Appellants under Sections 304-B and  

498-A  IPC.   Mr.  Gupta  urged  that  in  such  

circumstances, the judgment and order of the trial  

Court, as well as that of the High Court, affirming  

the said judgment, are liable to be set aside.    

10. Opposing  the  submissions  made  by  Mr.  R.P.  

Gupta,  learned  Senior  Advocate,  Ms.  Vibha  Datta  

Makhija, learned Advocate appearing for the State  

of Madhya Pradesh, submitted that the trial Court  

had considered the evidence of Vimla Bai, PW.1, the  

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mother of the deceased and Radheshyam, PW.3, the  

brother of the deceased, in coming to a finding  

that their evidence was sufficient to bring home  

the guilt of the Appellants under Sections 498-A  

and 304-B IPC.  

11. Ms.  Makhija  also  reiterated  the  submissions  

which  had  been  made  before  the  trial  Court  

regarding the presumption that was to be drawn both  

under Section 304-B IPC, as also under Section 113-

B of the Indian Evidence Act, 1872, having regard  

to the fact that Kripa Bai had committed suicide  

within  7  years  of  her  marriage.  Ms.  Makhija  

submitted  that  once  it  was  found  that  by  their  

actions  the  Appellants  had  driven  Kripa  Bai  to  

commit suicide, the provisions of Section 304-B IPC  

were  immediately  attracted  and  the  Appellants,  

therefore, had been rightly convicted by the trial  

Court  under  Sections  498-A  and  304-B  IPC.   Ms.  

Makhija urged that the evidence of PWs.1 and 3 were  

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sufficient  to  meet  the  requirements  of  both  

Sections  113-B  of  the  Indian  Evidence  Act  and  

Section 304-B IPC.   

12. Ms. Makhija then contended that as had been  

laid down by this Court in the case of Anand Kumar  

vs. State of M.P. [(2009) 3 SCC 799], in order to  

counter  the  presumption  available  under  Section  

113-B, which is relatable to Section 304-B, a heavy  

burden has been shifted on to the accused to prove  

his  innocence.  Having  regard  to  the  language  of  

Section  113-B  of  the  Indian  Evidence  Act,  which  

indicates that when a question arises as to whether  

a person has committed the dowry death of a woman  

and it is shown that soon before her death such  

woman  was  subjected  to  cruelty  or  harassment  by  

such other person or in connection with any demand  

for dowry, the Court shall presume that such person  

had caused such dowry death.  Ms. Makhija urged  

that  the  aforesaid  wording  of  Section  113-B  of  

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Evidence Act and the use of the expression “shall”  

would clearly indicate that the Court shall presume  

such death as dowry death provided the conditions  

in Section 113-B were satisfied and it would then  

be for the accused to prove otherwise.   

13. Ms. Makhija, thereupon, urged that the order of  

conviction passed by the trial Court holding the  

Appellants guilty under Sections 498-A and 304-B  

IPC, confirmed by the High Court, did not warrant  

any interference by this Court.  

14. Having  carefully  considered  the  submissions  

made on behalf of the respective parties, we are  

inclined  to  allow  the  benefit  of  doubt  to  the  

Appellants  having  particular  regard  to  the  fact  

that  except  for  certain  bald  statements  made  by  

PWs.1  and  3  alleging  that  the  victim  had  been  

subjected to cruelty and harassment prior to her  

death, there is no other evidence to prove that the  

victim committed suicide on account of cruelty and  

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harassment to which she was subjected just prior to  

her death, which, in fact, are the ingredients of  

the evidence to be led in respect of Section 113-B  

of the Indian Evidence Act, 1872, in order to bring  

home  the  guilt  against  an  accused  under  Section  

304-B IPC.

15. As has been mentioned hereinbefore, in order to  

hold an accused guilty of an offence under Section  

304-B IPC, it has to be shown that apart from the  

fact that the woman died on account of burn or  

bodily  injury,  otherwise  than  under  normal  

circumstances, within 7 years of her marriage, it  

has also to be 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.   Only then  

would such death be called “dowry death” and such  

husband or relative shall be deemed to have caused  

the death of the woman concerned.   

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16. In this case, one other aspect has to be kept  

in  mind,  namely,  that  no  charges  were  framed  

against the Appellants under the provisions of the  

Dowry Prohibition Act, 1961 and the evidence led in  

order to prove the same for the purposes of Section  

304-B IPC was related to a demand for a fan only.

17. The decision cited by Mr. R.P. Gupta, learned  

Senior Advocate, in Biswajit Halder’s case (supra)  

was rendered in almost similar circumstances.  In  

order to bring home a conviction under Section 304-

B  IPC,  it  will  not  be  sufficient  to  only  lead  

evidence  showing  that  cruelty  or  harassment  had  

been  meted  out  to  the  victim,  but  that  such  

treatment  was  in  connection  with  the  demand  for  

dowry.  In our view, the prosecution in this case  

has  failed  to  fully  satisfy  the  requirements  of  

both Section 113-B of the Evidence Act, 1872 and  

Section 304-B of the Indian Penal Code.

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18. Accordingly, we are unable to agree with the  

views expressed both by the trial Court, as well as  

the High Court, and we are of the view that no case  

can  be  made  out  on  the  ground  of  insufficient  

evidence  against  the  Appellants  for  conviction  

under Sections 498-A and 304-B IPC. The decision  

cited by Ms. Makhija in Anand Kumar’s case (supra)  

deals with the proposition of shifting of onus of  

the  burden  of  proof  relating  to  the  presumption  

which the Court is to draw under Section 113-B of  

the Evidence Act and does not help the case of the  

State in a situation where there is no material to  

presume that an offence under Section 304-B IPC had  

been committed.   

19. In that view of the matter, we allow the Appeal  

and  set  aside  the  judgment  of  the  trial  Court  

convicting  and  sentencing  the  Appellants  of  

offences  alleged  to  have  been  committed  under  

Sections 498-A and 304-B IPC.  The judgment of the  

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High Court impugned in the instant Appeal is also  

set aside.  In the event, the Appellants are on  

bail,  they  shall  be  discharged  from  their  bail  

bonds, and, in the event they are in custody, they  

should be released forthwith.     

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (H.L. GOKHALE)

New Delhi Dated:14.05.2010.  

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