Prem Kumar Vs. State of
Rajasthan  INSC 20 (7 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELALTE JURISDICTION CRIMINAL APPEAL NO. 58 OF 2002 Prem
Kanwar ....Appellant Versus State of Rajasthan ....Respondent
Dr. ARIJIT PASAYAT,
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').
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.
postmortem of the dead body of the deceased was got conducted and the post
mortem report is Ex. P/3, where the doctors opined that the cause of the death
of the deceased was asphyxia due to ante- mortem burns.
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, police submitted challan against the accused respondents for the
offence u/Ss. 306, 304 B IPC in the court of magistrate holding inter alia that
it was a case of dowry death. Thereafter, the case was committed to the Court
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
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
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." 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.
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
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
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.
Sections 304B and
Section 498A read as follows:
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
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."
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 7 (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
Explanation II- The
expression `valuable security' has the same meaning in Section 30 of the Indian
Penal Code (45 of 1860)."
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 9 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.
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:- 10
"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
Section 113-B is a presumption of law. On proof of the essentials mentioned
therein, it becomes obligatory on the Court to raise a 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 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
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 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
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
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 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 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 16 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.
Rajasthan (JT 2000
(6) SC 254) may be seen.
Court has held as
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.
(Dr. ARIJIT PASAYAT)
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