REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NO.  58 OF 2002

Prem Kanwar   ….Appellant

Versus

State of Rajasthan ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Rajasthan High Court  at Jodhpur  allowing the appeal filed by the

State  of  Rajasthan  questioning   correctness  of  the  judgment  of  acquittal

passed by a learned Sessions Judge, Sriganganagar. The appellant and two

others  faced  trial  for  alleged  commission  of  offence  punishable  under

Sections 306 and 304 Part-B of the Indian Penal Code, 1860 (in short the

‘IPC’) and Section 4 of the Dowry Prohibition  Act, 1961 (in short ‘Dowry

Prohibition Act’).  

2. Prosecution version unfolded during trial is as follows:-

On 23-04-1988 at about 2.05 p.m., the accused  Krishnalal lodged an

oral report Ex.P/12 before Jagmalram (PW-11) SHO, Police Station Purani

Abadi, Sri Ganganagar stating inter-alia that he was married with Smt. Raju,

(hereinafter referred to as the deceased) in the year 1984 and his father had

already died before 15 years back and since then he was living with  his

mother Prem Kanwar, the present appellant and uncle Puran Chand  and he

was not in service and thus was unemployed. On that day, he went out from

his house for some work and when he returned back at about 1.30 p.m. he

found crowd near his house and also found fire in  his house and people

were extinguishing the fire and he came to know that his wife, the deceased

was burnt and had died and, therefore, he had come to inform the police.

On  this  report,  police  registered  the  FIR  No.  7/88  and  started

investigation.

During investigation, postmortem of the dead body of the deceased

was got conducted and the post mortem report is Ex. P/3, where the doctors

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opined that the cause of the death of the deceased was asphyxia due to ante-

mortem burns.

When the investigation in FIR No. 7/88 was going on, PW 1 Bachna

Ram, father of the deceased, lodged a written report Ex. P/1 on 26-4-1988

before police station Purani Abadi, Sri Ganganagar stating inter-alia that all

the three accused have murdered his daughter (deceased) by burning her and

he had also come to know that a report was also lodged on behalf of the

accused stating therein that the deceased had committed suicide, but the fact

was that all the three accused have killed her. It was further stated in the

report that all the three accused used to harass and torture her as she was an

illiterate lady and accused no 1 Krishnalal (husband of the deceased) was an

educated person and accused used to say that in dowry nothing was given to

them and thus, they used to torture, harass and humiliate her. It was further

stated in the report that action be taken against the accused for killing her

daughter (deceased) by burning.

On this report, police chalked out FIR Ex. P/2 for the offence u/Ss.

306, 304 B IPC and started investigation.

After  usual  investigation,  police  submitted  challan  against  the

accused respondents for the offence u/Ss. 306, 304 B IPC in the court of

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magistrate holding inter alia that it was a case of dowry death. Thereafter,

the case was committed to the Court of Session.  

As the accused persons denied the allegations trial was held. Eleven

witnesses  were  examined  to  establish  the  accusations.  Learned  Sessions

Judge directed acquittal inter-alia holding as follows:

1. That it is a case of suicide by the deceased.

2. That death of the deceased was caused due to burning and has taken place within seven years of the marriage.

3. That Bachnaram (PW.l) father of the deceased took the deceased to his house at the time of marriage of his son and kept  the deceased in his  house for 12 months and during that period nobody came from her-in-laws’ house to take her back.   

4. That at the time of marriage of son of Rairam (PW-4), Bachnaram (PW-1) and PW.4  went to the house of her in-laws  to  take  deceased where  accused  Prem Kanwar (mother-in-law  of  the  deceased)  expressed  her displeasure  and  told  that  deceased  be  taken  away  by them and her clothes were thrown away.

5. That above facts were admitted by the learned Sessions Judge  at  pages  19  and  20  of  his  impugned  judgment. However,  he  observed  that  this  statement  of  accused Prem Kanwar (mother-in-law of the deceased) is to some extent  objectionable,  but  no  case  of  dowry  death  or abetment  of  suicide  is  made  from  this  part  of  her statement.

6. That  prosecution  has  not  been  able  to  prove  its  case beyond  all  reasonable  doubts  against  the  accused respondents for the offence under Sections 306 and 304B IPC and Section 4 of the Dowry Prohibition Act.”

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It is to be noted that the three accused persons were related to the

deceased in the following manner:

Krishnalal is the husband of he deceased, Puran Chand is the Uncle-

in-law and Prem Kanwar, the present appellant is the mother-in-law.   

The High Court found  that the conclusion of the trial Court that the

case was one of suicide was not established. The High Court found that the

possibility that before burning the deceased was murdered  was clear from

the evidence.  

3. Learned  counsel  for  the  appellant  submitted  that  considering  the

limited nature of the scope of interference in a matter of acquittal, the High

Court  ought  not   to  have interfered,  particularly,  when  it  found that  the

acquittal was in order so far as the other co-accused persons are concerned.

It was submitted   that the High Court’s conclusion that the skull bones were

broken, which rules out the case of suicide, is contrary to medical evidence.

The High Court  noted that to bring in application of Section 304 Part B, it

is immaterial whether  the death is suicidal or homicidal.   

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4. With  reference  to  the  evidence  of  Dhanni  Devi  (PW-5)  it  was

submitted  that  her  evidence  was  not  sufficient  to  fasten the guilt  on  the

appellant.  

5. In response, learned counsel  for the respondent-State supported the

judgment of the High Court.

6. In order to attract Section 304B IPC, the following ingredients are to

be satisfied.  

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

burns  or  bodily  injury  or  otherwise  than  under  normal

circumstances.

ii) Such death must have occurred within 7 years 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.  

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Sections 304B and Section 498A 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 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 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.”

“498-A:  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

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(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 property or valuable security or is  on account of failure by her or any person related to her to meet such demand.”

7. The  term  “dowry”  has  been  defined  in  Section  2  of  the  Dowry

Prohibition Act, 1961 (in short ‘Dowry Act’) as under:-

“  Section 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 mehr in the case of persons to whom the Muslim personal law (Shariat) applies.

Explanation I-  For the removal  of  doubts,  it  is  hereby declared that any presents made at the time of a marriage to  either  party  to  the  marriage  in  the  form  of  cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation  II-  The expression  ‘valuable  security’ has the  same  meaning  in  Section  30  of  the  Indian  Penal Code (45 of 1860).”

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8. Explanation to  Section 304-B refers to dowry "as having the same

meaning as in Section 2 of the Act", the question is : what is the periphery

of  the  dowry  as  defined  therein  ?  The  argument  is,  there  has  to  be  an

agreement at the time of the marriage in view of the words "agreed to be

given" occurring therein, and in the absence of any such evidence it would

not  constitute  to  be  a  dowry.  It  is  noticeable,  as  this  definition  by

amendment includes not only the period before and at the marriage but also

the  period  subsequent  to  the  marriage.  This  position  was  highlighted  in

Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

9. The offence alleged against the accused is under Section 304-B IPC

which  makes  "demand  of  dowry"  itself  punishable.  Demand  neither

conceives  nor  would  conceive  of  any  agreement.  If  for  convicting  any

offender, agreement for dowry is to be proved, hardly any offenders would

come under the clutches of law. When Section 304-B refers to "demand of

dowry", it refers to the demand of property or valuable security as referred

to in the definition of "dowry" under the Act. The argument that there is no

demand of dowry, in the present case, has no force. In cases of dowry deaths

and suicides, circumstantial evidence plays an important role and inferences

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can be drawn on the basis of such evidence. That could be either direct or

indirect.  It  is significant  that  Section 4 of the Act, was also amended by

means of Act 63 of 1984, under which it  is an offence to demand dowry

directly or indirectly from the parents  or other relatives or guardian of a

bride. The word "agreement" referred to in Section 2 has to be inferred on

the facts and circumstances of each case. The interpretation that the accused

seek,  that  conviction  can  only  be  if  there  is  agreement  for  dowry,  is

misconceived. This would be contrary to the mandate and object of the Act.

"Dowry" definition is to be interpreted with the other provisions of the Act

including Section 3, which refers to giving or taking dowry and Section 4

which deals  with a penalty for demanding dowry, under the Act and the

IPC. This makes it  clear that even demand of dowry on other ingredients

being satisfied is punishable. It  is not always necessary that there be any

agreement for dowry.

10. Section 113-B of the  Evidence Act is  also relevant  for the case at

hand.  Both Section 304-B IPC and Section 113-B of the Evidence Act were

inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of

1986 with a view to combat the increasing menace of dowry deaths. Section

113-B reads as follows:-

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“113-B:  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 304-B of the Indian Penal Code (45 of 1860).”

11. The  necessity  for  insertion  of  the  two  provisions  has  been  amply

analysed  by  the  Law Commission  of  India  in  its  21st Report  dated  10th

August, 1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the

impediment in  the pre-existing law in securing evidence to  prove dowry

related deaths, legislature thought it  wise to insert a provision relating to

presumption  of  dowry death  on proof  of  certain  essentials.   It  is  in  this

background  presumptive  Section  113-B  in  the  Evidence  Act  has  been

inserted.  As per the definition of ‘dowry death’ in Section 304-B IPC and

the wording in the presumptive Section 113-B of the Evidence Act, one of

the essential ingredients, amongst others, in both the provisions is that the

concerned woman must  have  been  “soon before  her  death”  subjected  to

cruelty or harassment “for or  in connection with the demand of dowry”.

Presumption under Section 113-B is a presumption of law.  On proof of the

essentials mentioned therein, it becomes obligatory on the Court to raise a

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presumption that the accused caused the dowry death.   The presumption

shall be raised only on proof of the following essentials:  

(1) The question before the Court must be whether

the  accused  has  committed  the  dowry  death  of  a

woman. (This means that the presumption can be raised

only if the accused is being tried for the offence under

Section 304-B IPC).

(2) The  woman  was  subjected  to  cruelty  or

harassment by her husband or his relatives.

(3) Such  cruelty  or  harassment  was  for,  or  in

connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her

death.

12. 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. Prosecution has to

rule  out  the  possibility of  a  natural  or  accidental  death  so as  to  bring it

within  the  purview  of  the  ‘death  occurring  otherwise  than  in  normal

circumstances’.   The  expression  ‘soon  before’  is  very  relevant  where

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Section 113-B of the Evidence Act and Section 304-B 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 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 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 his 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

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indicate  that  the expression ‘soon before’ would normally imply that  the

interval should not be much between the concerned cruelty or harassment

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

concerned death.  If alleged incident of cruelty is remote in time and has

become  stale  enough  not  to  disturb  mental  equilibrium  of  the  woman

concerned, it would be of no consequence.

13. The  Medical  evidence  is  found  in  the  statement  of  Dr.  Rajendra

Kuinar Gupta. (PW-6). He stated that for conducting the postmortem of the

dead body of the deceased, a Medical Board was constituted on 25-04-1988

and  apart  from  him,  Dr.  O.P.  Sharma  and  Dr.  Avinash  Sardana  were

members of the Board. He further stated that dead body of the deceased was

received on 23-04-1988 at about 8.00 p.m. and same was kept on ice and

post  mortem of the dead body of the deceased was conducted on 25-04-

1988 and on examination, following aspects were noticed:  

1. That whole body was burnt.

2. That hairs of head of the deceased were totally burnt.

3. That outer portion of the skull had come out.

4. That there were nine bangles and one kada in the Left

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forearm of the deceased.

5. That bones of skull of the deceased were broken.

14. The doctors opined that cause of death of the deceased was Asphyxia

due to ante mortem burns. He has proved the post mortem report Ex.P/3.

15. Thus, from the post mortem report Ex.P/3 and by the statement of Dr.

Rajendra Kumar Gupta (PW-6), the fact that deceased died because of burns

is very well established and at the time of post mortem of the dead body of

the deceased, her skull bones were found broken.  

16. In the case of burning the fracture of skull is not a necessary corollary

but  in  the  present  case  the  skull  bones  were broken.  Therefore,  the  fact

remains that  she was killed before  death.  Therefore,  the High Court  was

justified in holding that the Sessions Judge erroneously concluded that  it

was a case of suicide.  

17. Jasvinder Singh (PW-7) is an independent witness who is neighbour

of the accused. His evidence is of considerable importance. According to

him, while he was standing at the place where the deceased was burning the

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witness told Ramdev for extinguishing the fire  upon which the appellant

said  that  the  deceased  has  been  burnt  and  let  her  burn  and  it  is  no  use

extinguishing the fire. This statement has been rightly highlighted by the

High Court to show that her role  as alleged by the prosecution has been

established.  

18. The principles which would govern and regulate the hearing of appeal

by the High Court against an order  of acquittal  passed by the trial  Court

have been set  out  in innumerable  cases of this  Court  and in  Ajit  Savant

Majagavi v.  State  of  Karnataka (AIR  1997  SC  3255)  the  following

principles have been re-iterated:

1. In an appeal against an order of acquittal, the High Court possesses all  the powers and nothing less than the powers  it possesses  while  hearing  an  appeal  against  an  order  of conviction.

2. The High Court has the power to reconsider the whole issue, reappraise the evidence and come to  its  own conclusion and findings in place of the findings recorded by trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

3. Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal  was based and to  record  its  own reasons  for  not  accepting  those grounds not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

4. In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still

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available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

5. If the High Court on a fresh scrutiny and re-appraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.  

6.  The High Court has also to keep in mind that the trial court  had  the  advantage  of  looking  at  the  demeanor  of witnesses and observing their conduct in the Court especially in the witness box.

7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should  be  such  as  a  reasonable  person  would  honestly  and conscientiously entertain as to the guilt of the accused.

19. In this respect, the decisions of this Court in Balbir Singh Vs. State of

Punjab (AIR 1957 SC 216) Ram Kumar Vs. State of Haryana (AIR 1995 SC

280),  Bharwad Jakshibhai  Nagjibhai Vs.  State of  Gujarat (AIR 1995 SC

2505), Hari Chand Vs. State of Delhi (AIR 1996 SC 1477),  Raghbir Singh

Vs.  State  of  Haryana  (JT 2000  (5)  SC 21),  and  Hari  Ram Vs.  State  of

Rajasthan (JT 2000 (6) SC 254) may be seen.

20. In  Ashok Kumar Vs.  State of Rajasthan  (AIR 1990 SC 2134)  this

Court has held as under :

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"While  caution  is  the  watchword,  in  appeal  against acquittal  as  the  trial  Judge  has  occasion  to  watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived  at.  Prudence  demands  restraint  on  mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall  be rendered  meaningless.  In  the  present  case the order of the trial Court is vitiated as part from deciding the  case  on  irrelevant  consideration  the  most  serious error  of  which  he  was  guilty  and  which  rendered  the order infirm which could be set aside by the High Court was  that  he  misread  the  evidence  and  indulged  in conjectural inferences and surmises.  

21. The evidence of  PWs 1, 2, 3, 4 and 5 clearly shows  the greed of the

accused who was persistently taunting and harassing the deceased for not

having  brought sufficient dowry. Therefore, the High Court was justified in

upsetting the order of acquittal passed by the trial Court and directing her

conviction. We find no merit in this appeal which is accordingly dismissed.  

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi,

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January 7, 2009    

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