Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1097 OF 2016

[ARISING OUT OF S.L.P. (CRL.) NO.9718 OF 2014)

BAIJNATH & OTHERS .…APPELLANTS

VERSUS

STATE OF MADHYA PRADESH ....RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

The appellants, the in-laws of the deceased Saroj Bai,

being aggrieved by the conversion of their acquittal into

conviction by the High Court under Sections 498A and

304B of the Indian Penal Code (for short hereinafter

referred to as the “Code”) seek defeasance of this verdict in

the present appeal.

(2)Heard Mr. Siddhartha Dave, learned counsel for the

appellants and Mr. Naveen Sharma, learned counsel for

the respondent.

1

Page 2 (3)The genesis of the prosecution case lies in the

information lodged by appellant Baijnath, the elder brother

of the appellant No.2, Shivraj, the father-in-law of the

deceased. The information disclosed that on 09.06.1996 at

about 8 p.m. the family had dinner together and after

watching television, retired to the respective rooms for the

night. The deceased was married to Rakesh, son of

appellant No.2. According to the informant, in the next

morning she was found dead, hanging from the fan by a

ligature.

(4)On this information Merg No.20/1996 was registered

with the Chanderi Police Station and on the completion of

the investigation charge-sheet was laid against the

appellants together with Rakesh, husband of the deceased

and Prem Bai, wife of the appellant No.1 under Sections

302, 304B, 498A, 201 read with Section 34 of the Code.

According to the prosecution, the investigation revealed

that the husband of the deceased along with the appellants

had been demanding dowry and in pursuit thereof had

2

Page 3 subjected the deceased to harassment and torture in the

proximate past of the incident.

(5)At the trial, the learned Additional Sessions Judge

concerned framed charges against the accused persons

under Sections 304B and 498A of the Code, which were

denied by the accused persons. Subsequent thereto

Rakesh committed suicide on 09.06.1998 by consuming

poison and therefore he was deleted from the array of the

persons indicted.

(6)The prosecution at the trial examined 12 witnesses

including the Investigating Officer and the Doctor who had

performed the postmortem examination. The defence, after

the recording of the statements of the appellants under

Section 313 Cr.P.C., examined 4 witnesses.

(7)The Trial Court on an exhaustive assessment of the

evidence adduced, acquitted the accused persons of the

charges against which the respondent/State preferred

3

Page 4 appeal before the High Court. The impugned decision has

been rendered thereby upturning the acquittal.

(8)The learned Trial Court while recording the admitted

fact of marriage between the deceased and Rakesh and

also that the incident had occurred in the matrimonial

home of the wife within 7 years of the alliance, dismissed

the evidence with regard to demand of motorcycle in dowry

and the imputation of torture, cruelty and harassment as

projected by the prosecution and thus exonerated the

accused persons of the charges levelled holding that in the

attendant materials on record, the statutory presumption

as envisaged in Section 113B of the Evidence Act, 1892

(hereinafter referred to as the “Act, 1892”) was not

available for invocation.

(9)The High Court however being of the opinion that the

deceased had died an unnatural death in suspicious

circumstances in her matrimonial home within 7 years of

marriage and that the same was preceded by persistent

demands for a motorcycle as dowry in marriage

4

Page 5 accompanied by cruelty, returned the finding of guilt

against the appellants but exonerated Prem Bai, the wife of

appellant No.1 i.e. Baijnath. It accepted the evidence

adduced by the prosecution qua the charge of dowry

demand, harassment and cruelty in connection therewith

and applied the deeming prescription/statutory

presumption contained in Section 304B of the Code and

Section 113B of Act, 1892.

(10)The learned counsel for the appellants has in this

backdrop insistently urged that the evidence in support of

the charge of demand for a motorcycle as dowry in

marriage by the husband and his family members being

patently inadequate and unconvincing to furnish the

ingredient relating thereto qua the charges levelled against

the appellants, their conviction is utterly unsustainable

and if allowed to stand would amount to travesty of justice.

According to Mr. Dave, the imperative essentials of

Sections 498A and 304B of the Code not having been

proved, the High Court had fallen in error in applying the

5

Page 6 deeming edict/statutory presumption mandated by Section

304B of the Code and Section 113B of Act, 1892 i n

converting their acquittal to conviction. The learned

counsel contended that as the medical evidence as well did

not disclose with certainty the cause of death–homicidal or

suicidal, there was as such no incriminating evidence on

record to prove the culpability of the appellants. As not

only the testimony of the prosecution witnesses with regard

to demand for a motorcycle as dowry in marriage is visibly

inconsistent, mutilating each other, the defence evidence to

the contrary formidably establish the falsity of this charge,

he urged. According to Mr. Dave the analysis of the

evidence on record by the High Court has been erroneous

leading to findings not borne out by the materials on

record and thus are indefensible in any view of the matter

warranting the acquittal of the appellants.

(11)In emphatic refutation, the learned counsel for the

respondent has argued that as admittedly the unfortunate

incident had occurred within seven years of marriage in the

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Page 7 matrimonial home and that too in suspicious

circumstances, all the prerequisites of the offences under

Sections 498A and 304B were proved beyond reasonable

doubt and thus the impugned decision does not merit

interference. The learned Trial Court did err in evaluating

the evidence in the correct perspectives and the High Court

having undertaken a painstaking review thereof, the

findings arrived at by it, following a proper appreciation of

the materials on record are not only valid in law but also in

the exigent espousal of the cause of justice.

(12)After outlining the rival submissions as above, it is

considered expedient next to take a synopsised stock of the

evidence adduced by the parties, so as to facilitate a better

comprehension of the facets of the lis and the desired

adjudication.

(13)PW-1 Kundan Singh, the uncle of the deceased,

deposed that the families of the accused persons were joint

and that at the marriage, cash and other valuables were

gifted to the in-laws of the deceased and that the ceremony

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Page 8 was solemnized without any hassle. The witness however

referred to a grievance being expressed later on by the

deceased alleging that she was being harassed by her

husband Rakesh and the appellants as well as Prem Bai,

the wife of appellant No.1 relating to the demand of

motorcycle in dowry. The witness also referred to another

occasion where a similar complaint had been made by the

deceased to him. He claimed to have seen the dead body of

the deceased hanging from the fan.

(14)In cross-examination, this witness deposed about a

demand for motorcycle at the time of marriage but however

conceded that no complaint was made to the police for

such demand at any point of time. He denied the

suggestion that the deceased had committed suicide as

because her fidelity to her husband was being questioned

in the face of her love affairs with the son of one Thoran

Singh, the Sarpanch of the village.

(15)PW-2 Jahar Singh, the father of the deceased

mentioned about the demand for a motorcycle by the

8

Page 9 husband and the in-laws of the deceased at the time of the

marriage and also the harassment in connection therewith

suffered by the deceased as reported by her to him. The

witness also referred to the same demand by the husband

in the year 1996 on the occasion of Chowk Vidai, a ritual,

whereupon he was assured that as and when it would be

financially feasible, the same would be arranged. This

witness as well stated that though the demand for the

motorcycle was being made since the time of marriage in

the year 1994, no complaint was made by him with regard

thereto to anybody. When confronted with his statement in

course of the investigation, he admitted of the omission in

the disclosure that the deceased had confided in him about

such demand during her limited stay at the matrimonial

home and the harassment and mal-treatment in

connection therewith. He denied the suggestion that the

deceased had eloped with the son of Thoran Singh and that

as a result there was a confrontation between him with the

family of Thoran Singh. He also denied the suggestion that

9

Page 10 in view of this episode there was unpleasantness in the

family of the in-laws of the deceased for which they had

some reservation in accommodating her in the nuptial

house.

(16)PW-3 Jhulla, who at the relevant time was the

Sarpanch of the village deposed that the deceased had

committed suicide and that when he visited the spot, he

did not see any injury on her body.

(17)In cross-examination, he clarified that the appellant

No.1 was living separately from the in-laws of the deceased

from before the marriage. He also mentioned that the

accused persons were held in high esteem in the village

and used to behave decently with their daughter-in-law. He

also stated that he had not heard about any demand of

dowry made by the accused persons.

(18)PW-4 Narayan Singh, a neighbour did mention about

the demand of a motorcycle in dowry at the time of

marriage and that the deceased had disclosed to her father

10

Page 11 about harassment meted out to her by the appellants and

Prem Bai in connection therewith. In cross-examination

the witness testified that there was no demand for dowry

before the marriage and that there was no report with

regard thereto to the police.

(19)PW-5 Prembai, the mother of the deceased testified

that no dowry was fixed before the marriage and no

demand was made by the accused persons but they still

offered Rs.1 lac to them. She stated that her son-in-law

while dining made a demand for motorcycle which

according to the witness was assured as and when the

finances would be available. This witness deposed that

even after two years of marriage, the appellants repeated

the said demand to which a similar assurance was again

given.

(20)In cross-examination, this witness admitted that

before the marriage no demand for motorcycle had been

made as dowry, though she mentioned about the

complaints made by the deceased to her about harassment

11

Page 12 by the accused persons for not providing the bike. She

admitted that no complaint in this regard was ever made

and the relations as well were not informed about the

treatment suffered by the deceased.

(21)PW-7 Jahar Singh did state about a demand of

motorcycle made by Rakesh, the husband of the deceased.

(22)PW-8 Gyasibai, a neighbour deposed that the

deceased had committed suicide and that when she visited

the place of occurrence, she did not notice any injury mark

on her body. In cross-examination the witness stated that

the deceased did never speak to her about the demand and

testified that the in-laws did treat her properly and that

there was no confrontation at any point of time.

(23)PW-11 Manish Kapuria, the Investigating Officer

narrated the steps taken by him in course of the

inquisition and mentioned amongst others about the

preparation of the panchnama of the dead body. Though

this witness stated that the whole exercise was

12

Page 13 videographed, he admitted that the same had not been

produced as evidence. He claimed to have seen two ligature

marks on the neck of the deceased.

(24)PW-12 Dr. R.P. Sharma, who had performed the

postmortem examination, stated to have identified

contusion on the right cheek, middle of left side of neck

and middle of left parietal region in the dead body.

According to him, the ligature mark was found to be

ante-mortem in nature. He also mentioned that the 3

contusions were ante-mortem but opined that the ligature

mark was postmortem in occurrence. On an overall

assessment however, the witness stated that as at the time

of autopsy the body had started putrefying, no opinion as

to the cause of death could be given. In cross-examination

the witness admitted that the dead body did not wear any

other injury other than those mentioned.

(25)The witnesses of the defence, namely, DW-1 Gaya

Prasad, DW-2 Munna, DW-3 Har Kunwar Bai and DW-4

Sirnam Singh in unison testified that there was no demand

13

Page 14 for dowry or motorcycle ever made by the husband of the

deceased or her in-laws. They further stated that the

appellant No.1 Baijnath had been residing separately from

the in-laws of the deceased from before the marriage.

According to them, the family of the in-laws of the

deceased was sufficiently well-off and did enjoy appreciable

reputation in the society. These witnesses were all

neighbours of the appellants.

(26)DW-3 Har Kunwar Bai, in addition stated that the

deceased had during her marriage eloped with the son of

Pradhan of the Village Chitara and that in the night of the

incident she was with her, watching television before they

parted for their respective rooms to sleep. This witness is

the daughter-in-law of appellant No.2 and asserted that

neither she nor the deceased had ever been harassed in the

family.

(27)The evidence on record and the competing arguments

have received our required attention. As the prosecution is

on the charge of the offences envisaged in Sections 304B

14

Page 15 and 498A of the Code, the provisions for reference are

extracted hereunder:

“304B. 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.

498A. 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—

15

Page 16 (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

(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.

(28)Whereas in the offence of dowry death defined by

Section 304B of the Code, the ingredients thereof are:

(i)death of the woman concerned is by any burns

or bodily injury or by any cause other than in

normal circumstances and

(ii)is within seven years of her marriage and

(iii)that soon before her death, she was subjected to

cruelty or harassment by her husband or any

relative of the husband for, or in connection

with, any demand for dowry.

the offence under Section 498A of the Code is

attracted qua the husband or his relative if she is

16

Page 17 subjected to cruelty. The explanation to this Section

exposits “cruelty” as:

(i)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) or

(ii)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.

(29)Patently thus, cruelty or harassment of the lady by

her husband or his relative for or in connection with any

demand for any property or valuable security as a demand

for dowry or in connection therewith is the common

constituent of both the offences.

(30)The expression “dowry” is ordained to have the same

meaning as in Section 2 of the Dowry Prohibition Act,

1961. The expression “cruelty”, as explained, contains in

its expanse, apart from the conduct of the tormentor, the

consequences precipitated thereby qua the lady subjected

17

Page 18 thereto. Be that as it may, cruelty or harassment by the

husband or any relative of his for or in connection with any

demand of dowry to reiterate is the gravamen of the two

offences.

(31)Section 113B of the Act enjoins a statutory

presumption as to dowry death in the following terms:

“113B. 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 purpose of this

section, “dowry death” shall have the same

meaning as in section 304B of the Indian Penal

Code (45 of 1860)”

(32)Noticeably this presumption as well is founded on the

proof of cruelty or harassment of the woman dead for or in

connection with any demand for dowry by the person

charged with the offence. The presumption as to dowry

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Page 19 death thus would get activated only upon the proof of the

fact that the deceased lady had been subjected to cruelty

or harassment for or in connection with any demand for

dowry by the accused and that too in the reasonable

contiguity of death.

Such a proof is thus the legislatively mandated

prerequisite to invoke the otherwise statutorily ordained

presumption of commission of the offence of dowry death

by the person charged therewith.

(33)A conjoint reading of these three provisions, thus

predicate the burden of the prosecution to unassailably

substantiate the ingredients of the two offences by direct

and convincing evidence so as to avail the presumption

engrafted in Section 113B of the Act against the accused.

Proof of cruelty or harassment by the husband or her

relative or the person charged is thus the sine qua non to

inspirit the statutory presumption, to draw the person

charged within the coils thereof. If the prosecution fails to

demonstrate by cogent coherent and persuasive evidence to

19

Page 20 prove such fact, the person accused of either of the above

referred offences cannot be held guilty by taking refuge

only of the presumption to cover up the shortfall in proof.

(34)The legislative primature of relieving the prosecution

of the rigour of the proof of the often practically

inaccessible recesses of life within the guarded confines of

a matrimonial home and of replenishing the consequential

void, by according a presumption against the person

charged, cannot be overeased to gloss-over and condone its

failure to prove credibly, the basic facts enumerated in the

Sections involved, lest justice is the casualty.

(35)This Court while often dwelling on the scope and

purport of Section 304B of the Code and Section 113B of

the Act have propounded that the presumption is

contingent on the fact that the prosecution first spell out

the ingredients of the offence of Section 304B as in Shindo

Alias Sawinder Kaur and another Vs. State of Punjab –

(2011) 11 SCC 517 and echoed in Rajeev Kumar Vs.

State of Haryana – (2013) 16 SCC 640. In the latter

20

Page 21 pronouncement, this Court propounded that one of the

essential ingredients of dowry death under Section 304B of

the Code is that the accused must have subjected the

woman to cruelty in connection with demand for dowry

soon before her death and that this ingredient has to be

proved by the prosecution beyond reasonable doubt and

only then the Court will presume that the accused has

committed the offence of dowry death under Section 113B

of the Act. It referred to with approval, the earlier decision

of this Court in K. Prema S. Rao Vs. Yadla Srinivasa

Rao – (2003) 1 SCC 217 to the effect that to attract the

provision of Section 304B of the Code, one of the main

ingredients of the offence which is required to be

established is that “soon before her death” she was

subjected to cruelty and harassment “in connection with

the demand for dowry”.

(36)Tested on the judicially adumbrated parameters as

above, we are of the unhesitant opinion that the

prosecution has failed to prove beyond reasonable doubt,

21

Page 22 cruelty or harassment to the deceased for or in connection

with any demand for dowry as contemplated in either of

the two provisions of the Code under which the accused

persons had been charged. Noticeably, the alleged demand

centers around a motorcycle, which as the evidence of the

prosecution witnesses would evince, admittedly did not

surface at the time of finalization of the marriage. PW-5,

the mother of the deceased has even conceded that there

was no dowry demand at that stage. According to her,

when the husband (who is dead) had insisted for a

motorcycle thereafter he was assured that he would be

provided with the same, finances permitting. Noticeably

again, the demand, as sought to be projected by the

prosecution, if accepted to be true had lingered for almost

two years. Yet admittedly, no complaint was made thereof

to anyone, far less the police. Apart from the general

allegations in the same tone ingeminated with parrot like

similarity by the prosecution witnesses, the allegation of

cruelty and harassment to the deceased is founded on the

22

Page 23 confidential communications by her to her parents in

particular and is not supported by any other quarter.

(37)To the contrary, the evidence of the defence witnesses

is consistent to the effect that no demand as imputed had

ever been made as the family of the husband was

adequately well-off and further the appellant No.1 Baijnath

had been living separately from before the marriage.

According to them there was no occasion for any

quarrel/confrontation or unpleasantness in the family qua

this issue. Significant is also the testimony of DW-3, the

sister-in-law of the deceased who indicated abandonment

of the matrimonial home by her with the son of Thoran

Singh, the Sarpanch of the village for which she

understandably had incurred the displeasure of the

in-laws. DW-4, the father of DW-3 who had given his

daughter in marriage in the same family had deposed that

he did not ever encounter any demand for dowry. The

testimony of the prosecution witnesses PW-3 and PW-7

fully consolidate the defence version.

23

Page 24 (38)A cumulative consideration of the overall evidence on

the facet of dowry, leaves us unconvinced about the

truthfulness of the charge qua the accused persons. The

prosecution in our estimate, has failed to prove this

indispensable component of the two offences beyond

reasonable doubt. The factum of unnatural death in the

matrimonial home and that too within seven years of

marriage therefore is thus ipso facto not sufficient to bring

home the charge under Sections 304B and 498A of the

Code against them.

(39)The predicament of the prosecution is compounded

further by the by its failure to prove, the precise cause of

the death of the deceased. It is not clear as to whether the

death has been suicidal or homicidal. It is also not proved

beyond doubt, the origin and cause of the external injuries.

Though the obscurity of the causative factors is due to the

putrefaction of the body, the benefit of the deficiency in

proof, logically would be available to the persons charged.

24

Page 25 (40)In all, tested on the overall scrutiny of the evidence as

a whole, in our comprehension, the conviction of the

accused persons including the appellants herein on the

basis of the materials on record would not be out of risk.

To reiterate, the prosecution has failed to prove the crucial

ingredient of cruelty and harassment by direct and cogent

evidence thereby disentitling itself to the benefit of the

statutory presumption available under Section 113B of the

Act.

(41)Whereas the analysis of the evidence by the Trial

Court, in our view, has been in the proper perspectives,

factual and legal and thus the findings recorded by it are

valid, the High Court based its determination substantially

on presumptive inferences taking the aid of Section 113B

of the Act, divorced from the attendant facts and the

evidence with regard thereto. We are thus of the opinion,

that the conclusions of the High Court do not constitute a

plausible view on the materials on record and cannot be

sustained.

25

Page 26 (42)The appellants thus in view of the evaluation made

hereinabove are entitled to the benefit of doubt. The appeal

is allowed. The impugned judgment and order is set-aside.

The appellants are hereby ordered to be set at liberty

forthwith if not wanted in connection with any other case.

Let the records of the Trial Court be remitted immediately

for the needful.

…...........................................J.

(DIPAK MISRA)

…...........................................J.

(AMITAVA ROY)

NEW DELHI;

NOVEMBER 18, 2016.

26