REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1042 OF 2012

MAHESH KUMAR .....APPELLANT(S)

VERSUS

STATE OF HARYANA .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) This  appeal  has  been  preferred  against  the  judgment  dated

21.01.2009, passed by the High Court of Punjab and Haryana at

Chandigarh,  by which the High Court has allowed the appeal of

Savitri Devi, mother of the appellant and affirmed the conviction of

the appellant passed by trial court on 12.12.1995 for the offence

punishable under Section 304-B IPC.  However, the High Court has

reduced the sentence of  the appellant  from ten years  to  seven

years  looking  to  the  fact  that  the  appellant  had  suffered  a

protracted trial of more than 15 years.   

2) The prosecution was set in motion on the statement of PW3 Sohan

Lal/Complainant  -  father  of  the  deceased  as  recorded  by  the

Investigating Officer Assim Khan PW9. The Complainant stated that

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Mahesh  Kumar  got  married  to  the  deceased  Omwati  on

26.05.1991. But soon after the marriage, she was illtreated by her

husband Mahesh Kumar,  father-in-law Rajpal,  mother-in-law Smt.

Savitri  and  sister-in-law  Kamlesh,  as  they  demanded  dowry.

Complainant  further  claims  that  he  gave  dowry  more  than  his

capacity,  even gave the accused a gold chain after one year of

marriage, but they were still not satisfied and therefore they would

beat the deceased. The deceased sent a letter to the complainant

informing him about the same, after which, the complainant went

to the village where his daughter was residing, met her and her in-

laws  and  informed  them  that  he  was  unable  to  satisfy  their

demand  of  dowry  as  it  was  beyond  his  capacity  and  that  his

daughter should not be harassed for bringing insufficient dowry.

The complainant states that the deceased’s in-laws had tendered

an apology at that time and her father-in-law executed the same in

writing and promised to send her to her parental home on Raksha

Bandhan.  Subsequently, after the festival, she was sent back to

her matrimonial  house with the appellant,  and at that time the

complainant had given them a sum of Rs.1,000/- in cash.  After

about ten months, the appellant left the deceased at her brother

Rajbir’s house and demanded Rs.5,000/-.  It is further claimed that,

on 03.02.1994, the Complainant paid Rs.2,000/- to the appellant

when he came to take the deceased back with him and promised

to pay the remaining amount soon, after arranging the same.  At

that time, the deceased had apparently expressed apprehension

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that her in-laws would not allow her to live, lest the demands are

met.   It  was  on  08.02.1994,  that  the  complainant  received

information  that  his  daughter,  had  expired  in  Civil  Hospital,

Gurgaon,  and  alleges  that  the  same  was  caused  by  the

administration of poison by the accused.  An FIR was thus lodged

on 09.02.1994, against the appellant, the deceased’s father-in-law

Rajpal, mother-in-law Smt. Savitri and sister-in-law Kamlesh.  

3) The  investigation  was  conducted  by  Investigating  Officer  Assim

Khan PW9 and all the four accused were arrested.  After completing

investigation, a report was filed in the Court of Judicial Magistrate

First Class, Gurgaon who committed the case to the trial court.  The

charge was framed against all the four accused under Section 304-

B IPC.  All the accused pleaded not guilty and claimed trial. The

prosecution examined ten witnesses in all.

4) The trial court held that the letters written by the deceased with

oral  evidence  in  the  form of  statements  of  Complainant  PW3 –

Sohan Lal and PW4- Rajbir, brother of the deceased, are sufficient

to establish that deceased was continuously harassed and met with

cruelty  on account  of  dowry  and as  such it  is  a  case  of  dowry

death.   The  trial  court  had  come  to  the  conclusion  that  the

prosecution  has  proved  its  case  only  against  Appellant/Mahesh

Kumar, husband of the deceased and Savitri Devi, mother-in-law of

the deceased whereas in respect of accused Rajpal and Kamlesh,

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the trial court held that no specific role is assigned to them and,

therefore, they were given benefit of doubt and were acquitted.   

5) Aggrieved against the order of trial court, accused Mahesh Kumar

and Savitri Devi filed an appeal before the High Court of Punjab and

Haryana.  The  High  Court,  while  granting  benefit  of  doubt  to

accused Savitri Devi, allowed her appeal and acquitted her of the

charges whereas sentence of appellant Mahesh Kumar was reduced

to seven years.

6) Aggrieved by the judgment of  the High Court,  appellant Mahesh

Kumar is in appeal before this Court.

7) Learned  counsel  appearing  for  the  appellant  contends  that  the

essential ingredients of Section 304-B IPC have not been proved by

the prosecution. The letters produced by the prosecution do not

relate to demand of dowry, and any demand for a gold chain was

made two years before the death, and therefore, it cannot be said

to be soon before the death of the deceased. There is no evidence

that there was any demand for dowry on the part of the family of

the appellant soon before the death. Thus, offence under Section

304-B is not made out against the appellant.

8) The learned counsel appearing for the State contends that there is

no dispute about the fact that the deceased died within 7 years of

marriage  and  met  with  an  unnatural  death  due  to  organo

phosphorus pesticide. It is pointed out that the evidence on record

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is  sufficient  to  establish  beyond  doubt  that  she  was  met  with

cruelty continuously after marriage on account of dowry.

9) The first  and  foremost  question  that  arises  in  this  case,  and in

respect  of  the  necessary  ingredients  of  Section  304-B  IPC,  is

whether  there  is  a  proximate  nexus  between  the  death  of  the

deceased  with  the  cruelty  or  harassment  inflicted  upon  her  in

respect of the demand of dowry. Section 304-B reads as under:

“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 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 ‘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.”

10) This Court in  Satvir Singh & Ors.  v. State of Punjab & Anr.1

examining the significance and implication of the use of the words

‘soon before her death’ in Section 304-B, has held as under:  

“20. Prosecution, in a case of offence under Section 304- B IPC cannot escape from the burden of proof that the harassment  or  cruelty  was  related to  the demand for dowry  and  also  that  such  cruelty  or  harassment  was caused “soon before her death”.  The word “dowry” in Section 304-B has to be understood as it is defined in Section  2  of  the  Dowry  Prohibition  Act,  1961.  That definition reads thus:

1  (2001) 8 SCC 633

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“2. 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.”

xxx xxx xxx

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

11) In  Hira Lal & Ors.  v. State (Govt. of NCT), Delhi2, this court

held  that  there  must  be  material  to  show that  soon  before  her

death  the  victim  was  subjected  to  cruelty  or  harassment.  The

2  (2003) 8 SCC 80

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prosecution has to rule out the possibility of a natural or accidental

death  so  as  to  bring  it  within  the  purview  of  death  occurring

otherwise than in normal circumstances. It was held as under:-

“9.  A conjoint reading of Section 113-B of the Evidence Act  and  Section  304-B  IPC  shows  that  there  must  be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death  so  as  to  bring  it  within  the  purview  of  “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B  of  the  Evidence  Act  and  Section  304-B IPC  are pressed into service. The 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 the prosecution. “Soon before” is  a  relative term and it  would  depend upon the circumstances of each case and no straitjacket 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 113-B of the Evidence Act. The  expression  “soon  before  her  death”  used  in  the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon  before”  is  not  defined.  A  reference  to  the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the  period  which  can  come  within  the  term  “soon before” is left to be determined by the courts, depending upon  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  between  the  effect  of  cruelty based on dowry demand and the death concerned. If the alleged  incident  of  cruelty  is  remote  in  time and has

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become  stale  enough  not  to  disturb  the  mental equilibrium of the woman concerned, it would be of no consequence.”

12) In  Sakatar Singh & Ors.  v. State of Haryana3, the Court was

examining as to whether, letter written by the deceased discloses

an offence under Section 304 B of the IPC. It was held that:

“11. In the above background, we will now consider the evidence led by the prosecution to establish the charge levelled against the appellants. In this process, we will first examine the letter written by the deceased to her mother. Though this letter does not mention the date, there is no dispute that the same was posted on 20-5- 1986 which is evident from the postal seal found on the envelope which would  be a date prior  to  the incident leading to the death of Devinder Kaur and the children. The  contents  of  the  letter  indicate  what  transpired during her mother's visit to her in-laws' house and does not anywhere even remotely indicate any demand made by  her  in-laws.  It  only  reflects  the  attitude  of  the deceased towards her in-laws and that she entertained a feeling that her mother was not properly treated by her mother-in-law during her last visit…..”  

13) In  Major  Singh  and  Anr.  v. State  of  Punjab4,  the  Court

disbelieved  the  prosecution’s  story  for  the  reason  that  no

independent  witnesses  were  examined,  even  though,  the

witnesses deposed that the Members of Panchayats were informed

about the harassment.  

14) In the present case, the prosecution relies upon the statement of

PW3 Sohan Lal - father and PW4 Rajbir - brother of the deceased

which  has  been  made  basis  of  conviction  by  courts  below.

However, we find that such statements are not sufficient to prove 3  (2004) 11 SCC 291 4  (2015) 5 SCC 201

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that the deceased was treated with cruelty relating to demand of

dowry  soon  before  her  death  in  the  absence  of  independent

evidence  though available  but  not  examined.   A  memorandum

Ex.PE/1 dt. 25.01.1992 was relied upon and said to be executed by

the  in-laws  of  the  deceased  in  the  presence  of  members  of

Panchayat.   But  none  of  the  Panchayat  Members  have  been

examined to prove the settlement arrived at. Therefore, the oral

statements cannot be relied upon in view of the letters produced

by the prosecution.

15) The  prosecution  also  relies  upon  letter  Ex.  PF/1  written  by  the

deceased to her father.  The letter is to the effect that her in-laws

have  started  hating  and  suspecting  the  deceased’s  father,

therefore, he should not give them the gold chain but only cash.

Such letter does not show that anything was demanded by the

appellant.  The date of sending such letter has not been proved by

the prosecution, therefore, it cannot be said that such letter was

written soon before her death.  Similarly, another letter produced

by the prosecution is Ex. PK/1 which is a letter of the deceased to

her  brother-in-law(sisters-husband)  stating  that  she  has  no

problem with her mother-in-law and sister-in-law but her husband

beats her daily. The date of this letter has not been proved nor

does such letter lead to any inference for the demand of dowry by

the husband of the deceased. Further, an additional letter relied

upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein

the deceased has written that she is unhappy and harassed by her

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in-laws in as much as her mother-in-law does not like the food she

cooks.  Again, there is no inference of any demand of dowry in

such letter as well.  Therefore, the documentary evidence in the

shape of letters does not support the story of the prosecution.   

16) In view of the judgments referred to above, the prosecution has

failed  to  prove  either  the  demand  of  dowry  or  that  any  such

demand  was  raised  soon  before  her  death.  Therefore,  the

essential ingredients of offence under Section 304-B of IPC are not

proved  by  the  prosecution.  The  prosecution  has  even failed  to

prove the initial presumption under Section 113-B of the Evidence

Act.  

17) We find that the prosecution has failed to prove the allegations

levelled  against  the  appellant  beyond  reasonable  doubt.

Consequently,  we  allow  the  present  appeal  and  set  aside  the

conviction of the appellant and set him at liberty as long as he is

not involved in any other case. Bail bonds shall stand discharged.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 7, 2019.

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