State of Rajasthan Vs. Teg
Bahadur & Ors  Insc 597 (29 September 2004)
K.G. Balakrishnan & Dr. Ar.
Lakshmanan Dr. Ar. Lakshmanan, J.
This appeal is directed against the final judgment and order dated
14.03.1997 passed by the High Court of Rajasthan at Jaipur in S.B. Criminal
Appeal No. 487 of 1996 whereby the High Court allowing the appeal held that the
evidence adduced by the prosecution is not reliable and on the basis of such
weak and unreliable evidence, the guilt of the respondents-accused cannot be
The short facts giving rise to the appeal are as follows:
On 05.05.1993, the deceased Suman aged 18 years was married to the
respondent-accused Teg Bahadur in accordance with Hindu rites and ceremonies.
After the Gauna ceremony was completed, deceased Suman was sent back to her
maternal house by her in-laws and she complained to her parents that she had
been sent back because she had not brought enough dowry with her. She also told
them that she had been threatened not to return if she was unable to bring a
Television, Cooler and money. However, after lot of discussions and
negotiations with her in-laws, Suman was taken back by her in-laws. But the
demand for dowry still persisted and within five months that Suman stayed in her
maternal house, she was sent back to her matrimonial house three/four times and
threatened to bring new dowry items every time. According to the prosecution,
she was harassed, tormented and tortured by her in-laws, husband and other
relatives and physically abused for bringing insufficient dowry in her
On 09.09.1994, at about 10.30 p.m. death of the deceased Suman took place in
mysterious circumstances in the intervening night without assigning any logical
or cogent reasons for her demise. Even before sunrise, the cremation ceremony
was performed in a hasty manner without the parents of the deceased Suman being
duly informed about the death of their daughter.
On 11.09.1994, the information about the death of their daughter Suman was
received by the father of the deceased - Om Prakash PW-13 from their relative
Chunilal PW-8, who was residing in Garhwalon Ki Dhani. Upon receiving this
information, Om Prakash and Ganpat Ram left for the house of Ghanshyam i.e.
grandfather of the respondent-accused, who told them that their daughter Suman
died due to Haiza. But upon asking the neighbours they gathered altogether
different information that their daughter had been killed mercilessly, being
thrown in the well. An F.I.R. was lodged on 13.09.1994 by the father of the
deceased - Om Prakash who was accompanied by a number of villagers. On the
basis of the written report, F.I.R. was lodged and a case was registered under
Sections 498-A, 302 and 202 I.P.C. The Investigation Officer PW-24 reached the
place of incident and prepared the site plan of the well Ex.P-1 in the presence
of witnesses - Radheyshyam and Lichman Ram. Rameshwar was made to go down the
well from which one gold ear-ring, glass/lak bangle pieces and a metal clip was
recovered and sealed then and there. The mud on the motor installed in the well
was also taken along with the mud which was stuck on the sides of the well was
also scraped and sealed and marked as Ex.P-4. Thereafter, the site plan of the
place of incident was prepared and samples of plain earth and suspicious mud
from the residential house of the respondent-accused were taken and sealed. In
the presence of the witnesses, the remains of ashes and bones belonging to the
deceased Suman were collected from the cremation place and sealed them there.
During investigation, the statements of various witnesses were recorded under
Section 161 Cr.P.C. Upon completion of investigation, charge sheet was filed
against the respondents-accused Teg Bahadur, Ghanshyam and Smt. Singari under
Sections 304-B, 498-A and 201 I.P.C. in the Court of Addl. Chief Judicial
Magistrate, Navalgarh. On committal for trial, it was numbered as Sessions Case
No. 7 of 1995.
The prosecution examined as many as 24 witnesses to prove their case. No
witness was examined by the Defence side. Out of 24 witnesses, 8 of them have
turned hostile. Relying upon the facts and circumstances and the evidence
adduced on record, the learned Sessions Judge, Jhunjhunu held the
respondents-accused guilty under Sections 498-A, 304-B, 201 I.P.C. and were
sentenced to 8 years of rigorous imprisonment. However, no sentence was passed
separately for the offence committed by them under Section 498-A.
Aggrieved against the judgment and order passed by the learned Sessions
Judge, the respondents-accused filed S.B. Criminal Appeal No. 487 of 1996 in
the High Court of Rajasthan at Jaipur. Final judgment and order was passed by
the High Court while allowing the appeal filed by the respondents herein. The
High Court held that the evidence adduced by the prosecution is not reliable
and on the basis of such weak and unreliable evidence, the guilt of the accused
cannot be proved successfully.
Aggrieved against the final judgment and order passed by the High Court, the
State of Rajasthan has filed the above appeal in this Court.
We heard Ms. Madhurima Tatia, learned counsel for the appellant and Mr. M.L.
Lahoty, learned counsel for the respondent. We have perused the records and
also of the judgments of both the Sessions Court and of the High Court and
heard lengthy arguments advanced by the counsel appearing on either side.
Ms. Madhurima Tatia, learned counsel appearing for the appellant submitted
that the High Court has erred in acquitting the respondents-accused even when
the facts and circumstances which were proved beyond reasonable doubt and the
evidence adduced on record clearly proves the guilt of all the
respondents-accused that in all probabilities the respondents-accused had
caused the death of the 18 year old deceased Suman. She further submitted that
the High Court is not correct in not appreciating the testimonies of PW-13 - Om
Prakash and PW-4 - Ram Kishan who have clearly stated in their statements the
entire chronology of events, which led to the death of the deceased. According
to the learned counsel for the appellant, such clear and lucid statement of
facts, which were proved beyond reasonable doubt should not have been
overlooked and ignored by the High Court even when their testimonies clearly
corroborate the evidence adduced by the prosecution and has successfully proved
the guilt of the accused. The counsel for the appellant contended that all the
ingredients of offence under Section 304B were made out and it was urged that
there was sufficient evidence to hold that before the death of Suman there was
demand for dowry by the appellant and there was consequential harassment on his
part. Counsel also urged that the presumption under Section 113-B of the
Evidence Act should have been drawn and the High Court seriously erred in
acquitting the accused without properly appreciating the evidence.
In view of these submissions, the learned counsel for the appellant
submitted that the High Court has erred in acquitting the accused even when the
chain of circumstances was complete which clearly point out towards the guilt
of the respondents-accused. Winding up her arguments, the learned counsel
submitted that the cremation of the body of the deceased Suman was cremated in
the hasty manner without even informing the parents of the deceased. Learned counsel
for the appellant prayed that the appeal against the final judgment of the High
Court be set aside and the judgment of the Sessions Court be restored.
Per contra, Mr. M.L. Lahoty, learned counsel for the respondents-accused
submitted that the information regarding the death of Suman was given to her
family members who were present at the time of cremation and though many
neighbours were examined, none of them supported the case of the prosecution.
He further submitted that the alleged recovery of one golden ear-ring, pieces
of bangles and hair clip has not been proved as those of the deceased-Suman.
With regard to the demand of dowry, the important witness is the mother of
deceased, Smt. Hira Bai, PW-22 but she also has not supported the case of the prosecution.
Learned counsel for the accused took us through the evidence of the witnesses
and submitted that the death of Suman was not for the reasons, as alleged by
the prosecution and, therefore, the High Court has rightly allowed the appeal
filed by the accused-respondents herein.
In the instant case, the prosecution has examined as many as 24 witnesses.
In these, the father of the deceased, Suman, PW-13, Om Prakash, grand-father of
PW-5, Ganpat and mother of the deceased, Smt. Hira Bai, PW-22, PW-2, Lachhman
and PW- 3, Radhey Shyam were examined. PW-6, PW-7, PW-14, PW-15 and PW-16 were
declared hostile. The accused Teg Bahadur, in his statement under Section 313
of the Criminal Procedure Code, stated that his marriage with Suman was
solemnised without dowry and even after marriage, there was no demand for dowry
and that they were living happily together and that a false case has been
lodged against him. The accused-Ghanshyam, stated in his statement that Teg
Bahadur is his grand son whose marriage was solemnised without dowry and there
was no demand of dowry. It is also in the evidence that at the time of death of
Suman, as spoken to by PW-18, Chunnilal, that Suman's father, mother,
grand-father came to the funeral ceremony of Suman at Ghanshyam's house at
Meelo Ki Dhani. The said witness has also stated that there was no dispute of
The learned Sessions Judge, on the basis of the evidence produced, held that
Suman died on 9/10 September, 1994 in unnatural circumstances and that she had
died due to fall in well and that the death of Suman took place within seven
years from the date of marriage and, therefore, under Section 113-B of the
Evidence Act, presumption could be made against the accused person and that
prior to cremation, the parents of the Suman and other members of the family
were not informed and that the cremation was done in undue haste. Learned
Sessions Judge, in our opinion, is not correct in holding so. The finding of
the learned Sessions Judge is contrary to the evidence led in this case.
This apart, there is also discrepancy in regard to the statement of reports
in the police station. It is seen that two reports were submitted by Om
Prakash, one report is Ex. P-10 and other report has not been produced.
Likewise, PW-12, Mukhram, has stated in his statement that report was given in
the police station on 13th which was written by Bhagwan Singh, whereas Om
Prakash himself has stated that Bhagwan Singh has written the report.
Therefore, it is seen that Ex.P-10 is not the first report and the other report
filed prior to Ex.P-10 was removed and afterwards second report was filed.
In brief, for proving the offence under Section 304-B of the Indian Penal
Code, the prosecution has to prove the following things:
a) The death of the married woman was within seven years of the marriage.
b) A little prior to death, her husband or relative on the point of demand
of dowry subjected cruelty to her or harassed her.
In the present case, it is proved that Suman was married on 5.5.1993 and she
died on 10.9.1994. Thus Suman's death took place within seven years of her
In regard to the cause of death, there are two versions. According to the
prosecution, the death was due to falling in well whereas according to the
accused, Suman died due to Plague. However, the facts stated by Om Prakash,
PW-13, in FIR, Ex.P-10, are otherwise. From the evidence, it is not known
whether Suman died during the day time or in the night. PW-8, Ramlal, has
stated in his statement that the wife of Teg Bahadur had died due to vomiting
and loose motions and no voice of beating was heard. Therefore, this witness
was declared hostile. Likewise, Radheyshyam and Ramlal, as mentioned in the
First Information Report, told Om Prakash that in the night in the house of
Ghanshyam they heard the cries of woman weeping and this fact has not been
proved. PW-2, Lachhman, was declared hostile since he has not supported the
case of the prosecution. He, in his statement, has stated that the father of
Teg Bahadur has taken the thick rope and also stated that the air of Motor of
well is to be taken out. Out of the women mentioned in the First Information
Report, the statements of PW-6, Manbhari, PW-7, Smt. Mani, PW-14, Smt.
Manohari, PW-15, Smt. Parmeshwari, PW-16, Smt. Barji and PW-19, Suman was
available. All these witnesses have been declared hostile because they have not
supported the prosecution case and the facts mentioned in Ex.P-10 that when
they got bath to Suman before cremation, no injuries were seen. Likewise, there
is no evidence in regard to the recovery from the well of Suman's ear-rings,
pieces of bangles and hair clip and that these articles found at the well at
the time of search were of Suman.
There was no evidence to that effect. The Investigating Officer, in our
view, has not given any attention to this and had not investigated regarding
this. As already noticed, Om Prakash, PW-13, Ganpat, Ramkishan and Shri Ram had
stated that they have no information about the death and that no information
was given to the family members of Suman and that they have denied to have
participated in the cremation. Whereas the other persons of the village, whose
statements the prosecution has produced, had stated the presence of the parents
of Suman at the time of cremation, as to be seen from the statements of
Manbhari, Smt. Mani, Ram Lal, Kushal Singh, Smt. Manohari, Smt. Parmeshwari,
Smt. Barji, Smt. Suman and Chunnilal. PW-18, Chunnilal had also accepted, in
cross-examination, that on his telling, Om Prakash, father of Suman, and the mother
of Suman had come for cremation of Suman in the house of Ghanshyam in Milon Ki
Dadhi. As already noticed, for proving an offence under Section 304-B of the
Indian Penal Code, it is necessary that the prosecution should prove this that
a little prior to death on the issue of demand of dowry, her husband or the
relatives of her husband have subjected cruelty with her.
Our attention was drawn to Section 113-B of the Evidence Act and Section
304- B of the Indian Penal Code by the learned counsel appearing for the
accused. A conjoint reading of Section 113-B of the Indian Evidence Act and
Section 304-B of the Indian Penal Code 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." For the above proposition,
learned counsel appearing for the accused, cited the judgment of this Court in
the case of Hira Lal & Ors. vs. State(Govt.of NCT), Delhi, (2003) 8 SCC 80.
In that case this Court observed thus:
"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 become stale enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence." With regard to the dowry, there
are different versions. PW-1, Sanwarmal stated that he had not heard anything
about the dowry with the wife of Teg Bahadur.
PW-2, Lachhman stated that he does not know this that from Suman, her
in-laws have asked for dowry or not. PW-4, Ram Kishan stated, in cross
examination, that at the time of marriage, the accused persons have not raised
any objection regarding dowry. The statement of this witness is contrary to the
statement of Om Prakash.
According to Ram Kishan, when Suman came back for the first time from her
in- laws then she complained regarding dowry whereas Om Prakash and Hira Bai
had not stated so. PW-5, Ganpat, uncle of Om Prakash, in his statement, stated
that at the time of marriage on the issue of dowry Teg Bahadur and Ghanshyam
raised the dispute. PW-9, Shriram, stated that no dowry was demanded at the
time of marriage but afterwards dowry was demanded. PW-10, Kushal singh, stated
that at the time of marriage on the point of dowry displeasure was shown.
On the careful scrutiny of the statements of the aforesaid witnesses, it is
seen that witnesses have given different statements regarding demand of dowry.
According to him, with respect to dowry, dispute was raised at the time of
According to Om Prakash, when Suman returned to her parents' house, she
complained about demand of dowry by the in-laws. There is no corroboration
about the statement of Om Prakash by the statement of his wife Smt. Hira Bai.
Under these circumstances, we are of the opinion, that there is lack of
evidence to prove the demand of dowry and that the evidence led by the
prosecution bristle with discrepancies and contradictions. On the basis of the
evidence, it could not be treated to have been proved that actually the accused
had made a demand of dowry and that was made soon before the death and due to
this, the deceased was harassed.
In the instant case, the witnesses having given the statements about the
facts within their special knowledge, under Section 161 of the Criminal
Procedure Code recorded during investigation, have resiled from correctness of
the versions in the statements. They have not given any reason as to why the
investigating officer could record statements contrary to what they had
disclosed. It is equally settled law that the evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution or the
accused, but it can be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or defence may be
The prosecution relied upon the recovery of ear-rings, hair clip, pieces of
bangles belonging to the deceased from the well upon the disclosure statement
made by police. It may stated that these are articles of common use and can be
found out in any house. That apart, no family member of the deceased has
identified these articles or claimed that the same belonged to the deceased
and/or she was wearing the same at the time of occurrence.
In the instant case, one of the main ingredients of the offence of demand of
dowry being absent, the High Court is right in acquitting the accused for the
offence under Section 304-B of the Indian Penal Code.
A reading of the judgment of the trial Court clearly shows that the Sessions
Judge proceeded as if the prosecution is available against the accused merely
because an allegation of death within seven years of marriage was made without
even the prosecution having proved the required preliminary fact. Having so
shifted the onus, the Court then proceeded to hold that the accused had not
discharged the said onus and hence convicted the accused primarily based on the
presumption under Section 113-B of the Evidence Act. The approach by the
Sessions Court is not correct.
In this view of the matter, we are of the opinion that the prosecution has
failed to prove the circumstances alleged against the accused persons. The High
Court, in our opinion, has not committed any error in interfering with the
conviction of the accused passed by the Sessions Court.
The appeal, therefore, fails and stands dismissed.