Deen Dayal & Ors.
Vs. State of U.P.  INSC 18 (7 January 2009)
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.67 OF
2006 Deen Dayal & Ors. ... Appellants State of U.P. ... Respondent
appeal under Section 379 of Code of Criminal Procedure, 1973 read with Section
2(A) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970 is at the instance of three appellants.
Amar Singh, appellant
no.3, is the son of Deen Dayal, appellant no.1 and Smt. Sukhrani, appellant
no.2. They were tried for killing Asha Devi, wife 2 of appellant no.3 for non
fulfilment of their demand for dowry and were charged under sections 498-A and
304-B, alternatively section 302 of the Penal Code. At the conclusion of the
trial they were acquitted of the charges by the 4th Additional Session Judge,
vide judgment and order dated April 30, 2001 in Sessions Trial no.740 of 1998.
Against the judgment of acquittal passed by the trial court the State of U.P.
preferred an appeal before the High Court that was registered as Govt. Appeal
no.2998 of 2001.
A Division Bench of
the High Court found and held that in the face of prosecution evidence the
conclusion arrived at by the trial court was wholly untenable. Accordingly, the
High Court allowed the appeal, set aside the Judgment of acquittal passed by
the trial court and by judgment and order dated September 21, 2005 convicted
all the three appellants under sections 498-A and 304-B of the Penal Code and
sentenced them to undergo rigorous imprisonment for three years and ten years
respectively for the two offences subject to the direction that the two
sentences would run concurrently. The judgment and order passed by the High
Court is brought under appeal to this court by the three appellants.
J. N. Dubey learned senior counsel made long and elaborate submissions in
support of the appeal. Learned counsel first contended that in a criminal case
the scope of an appeal against acquittal is quite different from an appeal
against conviction and sentence. In the former case, if the 3 trial court has
taken one of the two possible views the judgment of acquittal would not warrant
any interference in appeal. Counsel further submitted that the present case
fell under that category and the High Court was in error in interfering with
the judgment of the trial court and substituting its own view in place of the
view taken by trial court. Next, passing over to the merits of the case, Dr.
Dubey submitted that on the evidence on record several ingredients of the
offence of dowry death remained unproved and since the prosecution failed to
establish all the necessary conditions no presumption would arise against the
appellants under Section 304-B of the Penal Code and Sec. 113-A of the Indian
examining the submissions made on behalf of the appellants in any detail it
would be useful and proper to state certain facts of the case that are admitted
or are in any event undeniable. Asha Devi, the deceased was married with
appellant no.3 in June 1997. Fifteen months later she died on September 6,
1998. At the time of her death she was living with the appellants. Her dead
body was taken out of a well situate at a distance of about four hundred paces
from the house of the appellants. Here it must be stated that her death was not
caused by drowning. According to the prosecution, Asha Devi was killed by the
appellants and her dead body was thrown into the well. The appellants, however,
have a different story. Their 4 case is that she had gone to fetch water and
while pulling up the pail of water she accidently slipped and fell down into
the well and died.
this stage we may take a look at the medical evidence. P. W.3, the doctor
holding post-mortem on the dead body of Asha Devi found the following two
injuries 1: Swelling 3 x 3 cm in front upper part of nose.
2: Swelling mark 5 x
5 cm on top and middle of head.
examination he found the following injuries :
bone of head was fractured. Membrane was soiled in blood. There was blood in
brain. Bone of nose was fractured. There was 2 ounce clotted blood in nose.
There was 2 ounce watery fluid in stomach".
He opined that death
was caused due to coma resulting from head injury. He stated before the court
that the injuries were possibly caused by some blunt weapon. He found no water
in the lungs or the wind pipe. He further said that that if there was water in
the well then those injuries couldn't possibly have been caused (by falling down
into it). In cross-examination he said that both the injuries could be caused
by dashing against two different projections; those could not caused by a
single projection. Under persistent cross-examination he further said that as a
result of falling from a high place 5 with mouth (Sic. face) facing downward
injury no.1 could possibly be caused and injury no.2 could be caused by dashing
against some stone.
medical evidence thus fully corroborates the prosecution case that Asha Devi
was thrown into the well when she was already dead or was dying. At any rate
she had stopped breathing as indicated by the absence of any water in her lungs
order to reconcile the defence case with the medical evidence Dr. Dubey came up
with an explanation. Learned Counsel suggested that in course of her fall in
the deep well (water surface in the well was at a depth of 60-70 ft.) Asha Devi
might have smashed her head against the wall of the well and as a result she
went into coma even before hitting the water surface. We are totally unable to
accept the submission. According to the investigating officer the mouth of the
well was half covered by wooden planks and a pulley was fixed over the other
open half for pulling up the filled up bucket. With that kind of arrangement it
is highly unlikely for a person to slip and fall down in the well. But even
assuming that such an accident took place no injuries as found on the person of
Asha Devi can be caused in course of the fall into the water. The investigating
officer described the well in question as a kuccha well, that is to say its
inner walls were not brick lined. Asha Devi had suffered two injuries, one over
her nose 6 and the other in the parietal area of the head. The doctor was
quite definite that the two injuries were the result of two separate blows by
some hard and blunt substance. In cross examination he said that the two
injuries could be caused by dashing against two different projections; those
could not caused by a single projection. We are completely unable to see Asha
Devi falling down inside the well and getting her face and head smashed twice
against two projections jutting out from the soft clay inner walls without any
lining of bricks. We have no manner of doubt that Asha Devi was first beaten
and then her body was dumped into the well when she was dying or was already
it may be stated that the defence also examined a witness. He of course said
that the appellants kept Asha Devi with great love and affection and further
that she died due to an accidental fall into the well. He himself saw her
slipping while bending down to pull up the bucket full of water and falling
into the well head downwards. The witness has no value in our eyes and Dr.
Dubey too rightly did not even refer to his evidence. As a matter of fact the
defence witness did not make any statement before the investigating officer and
was examined for the first time before the trial court. It also appears from
the materials on record that the appellants' village where the occurrence took
place belonged to the people of one and the same caste.
investigation the co-villagers tried to conceal the facts and no one was
prepared to give any statement against the appellants.
on the evidence on record we find it fully established that only after fifteen
months of her marriage and while she was living with the appellants Asha Devi
died under circumstances that were not only far from normal but also plainly
this stage Dr. Dubey submitted that though Asha Devi might have died under
abnormal circumstances within seven years of her marriage, there was no
evidence of any demand for dowry by the appellants or her being subjected to
cruelty or harassment by the appellants for or in connection with the demand
for dowry. In any event, there was absolutely no evidence that any demand for
dowry was made soon before her death on September 6, 1998 and the demand for
dowry and the cruelty or harassment meted out to her in connection with the
demand were the proximate cause of her death. In support of the submission that
the appellants did not make any demand for dowry Dr. Dubey heavily relied on
certain sentences picked out from the evidence of PW 1, the father of the
deceased. Learned counsel referred to two sentences from the statement of PW 1
in reply to the court's questions where he said that no dowry was decided at
the time of the marriage and appellant no.1 had said that he would be happy
with whatever they gave. Learned counsel then pointed out two or three
sentences from his cross examination where he said that there was no talk of
dowry at the time of engagement and marriage of his daughter; there was no talk
of dowry at the time of solemnization of marriage (taking steps around the
And that the
appellants took his daughter happily and at the time of departure also there
was no talk (of dowry).
find absolutely no substance in the submission. The evidence of the witness has
to be taken as a whole and not by plucking out one or two sentences from here
and there. In his examination-in-chief PW 1 clearly stated that in the marriage
of his daughter he gave dowry according to his capacity but the members of the
bridegroom side were not satisfied. Asha Devi's husband Amar Singh (appellant No.3),
father-in-law Deen Dayal (appellant No.1) and mother-in-law Sukhrani (appellant
No.2) used to demand Rs.10, 000/- and a chain of gold in addition to what was
already given by him. They had made the demand from him. They had also made the
demand of dowry from his son when he went to their place for bringing back Asha
Devi. The appellant used to beat and abuse her for the sake of dowry. When Asha
Devi used to come to their house she would tell them that her in-laws demanded
Rs.10, 000/- and a chain of gold and if the money and the chain were not given
then they would arrange a second marriage of 9 Amar Singh. In July 1998, Deen
Dayal (appellant no. 3) had come to his house for taking his daughter. Then too
he had demanded Rs.10, 000/- and the gold chain. He (the witness) had nothing
to give; therefore, he could not give anything. Deen Dayal became annoyed and
took away his daughter Asha Devi with him in angry mood.
Dubey has referred to two sentences in the statement of PW 1 in reply to the
court questions. In reply to the court questions PW 1 indeed said that at the
time of marriage no dowry was decided and the father-in-law of his daughter had
said that he would be happy with whatever they gave.
But in the very next
sentence he said that after six days of marriage they brought back Asha Devi
from her matrimonial home and then his daughter told them that his
mother-in-law had been beating her and demanding Rs.10, 000/-. He further said
that after three to four months of marriage he went to the matrimonial home of
her daughter. He had told them (the appellants) not to make (any further)
demand of dowry as he was not in a position to give them anything. But the
father-in-law of his daughter told him that they would not keep his daughter in
their house. Similarly, in his cross-examination he said that there was no talk
of dowry either at the time of engagement or at the time of solemnization of
marriage and the appellants took his daughter happily but again the next
sentence is that at 1 0 the time of departure Deen Dayal had refused to take
food and he had demanded dowry. The deposition of PW 1 is full of the assertion
about the appellants demanding rupees ten thousand and a gold chain in dowry
and subjecting her daughter Asha Devi to cruelty and harassment due to non
fulfilment of their demand.
the evidences of PW 2 and PW 5, the brother and the mother respectively of the
deceased, leave no room for doubt in regard to the demand of dowry by the
appellants and their subjecting Asha Devi to cruelty and harassment in
connection with the demand. From the prosecution evidence the picture comes out
vivid and clear that in addition to what was given to them the appellants
demanded Rs.10, 000/- and a gold chain. PW 5 stated before the court as
"At the time of
marriage, Amar Singh had demanded chain of gold for himself and rupees ten
thousand for his father. After that the demand was repeated many times."
She further stated:
before death of Asha Devi, Deen Dayal father-in-law of Asha Devi had come to
our house for taking her. Deen Dayal had demanded chain of gold for his son and
rupees ten thousand and he had asked to send Asha Devi. My daughter was not
prepared to go. But we made her to comprehend and then she was sent.
Deen Dayal took Asha
Devi with him in anger."
1 1 The evidence on
record fully establishes that there was a persistent demand of dowry by the
appellants and they subjected Asha Devi to cruelty and harassment in connection
with the demand and eventually beat her to death due to its non-fulfilment.
Dubey lastly contended that before any presumption may be drawn against the
appellants it must be shown that they had made the demand for dowry and in that
connection subjected Asha Devi to cruelty and harassment `soon before her
death'. He submitted that according to the prosecution evidence the demand for
dowry was last made in July 1998 when appellant no.1 had gone to bring Asha
Devi from her parents' house and she died on September 6, 1998. Thus, according
to Dr Dubey, there was no evidence that she was subjected to any cruelty or
harassment soon before her death and hence, there would be no application of
Section 304-B of the Penal Code and no presumption could be raised against the
appellants as provided under Section 113-A of the Evidence Act. In support of
the submission he relied upon a very large number of decisions but we see no
need to refer to those decisions as in the facts of the case the submission
appears to us to be completely unacceptable.
words `soon before her death' occurring in section 304 B of the Penal Code are
to be understood in a relative and flexible sense. Those 1 2 words cannot be
construed as laying down a rigid period of time to be mechanically applied in
each case. Whether or not the cruelty or harassment meted out to the victim for
or in connection with the demand of dowry was soon before her death and the
proximate cause of her death, under abnormal circumstances, would depend upon
the facts of each case. There can be no fixed period of time in this regard.
From the evidence on record, it is clear that there was an unrelenting demand
for dowry and Asha Devi was persistently subjected to cruelty and harassment
for and in connection with the demand. Both her parents and her brother (PW 1,
PW 5 and PW 2) deposed before the court that appellant no.1 had once again
raised his demand when he had gone to their house in July 1998 to bring Asha
Devi to his place. Their inability to meet his demand had caused him annoyance
and anger. Asha Devi was naturally apprehensive and was very reluctant to go
with him. But they somehow prevailed upon her and made her depart with him.
There is thus direct and positive evidence of her being subjected to
harassment. There is nothing to show that after she was brought to the
appellants' place and till her death on September 6, 1998 merely about two
months later the situation had radically changed, the demand of dowry had
ceased and relations had become cordial between the deceased and the three appellants.
In the facts and circumstances of the case, we are satisfied that in 1 3
connection with the appellants' demand for dowry Asha Devi was subjected to
cruelty and that was the proximate cause of her homicidal death.
are satisfied that all the ingredients of Section 304-B of the Penal Code are
fully satisfied and on the evidence on record no other view is possible but to
hold that the three appellants are guilty of committing dowry death.
view of the discussions made above, it follows that the view taken by the trial
court was completely untenable and the High Court was fully justified in
reversing its verdict in appeal preferred by the State. We thus find no merit
and substance in any of the submissions made on behalf of the appellants. The
appeal fails and is accordingly dismissed.
[Lokeshwar Singh Panta]