Criminal Appeal No. 447 of 2012

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 447 of 2012

Charan Singh @ Charanjit Singh …Appellant

Versus

The State of Uttarakhand …Respondent

J U D G M E N T

Rajesh Bindal, J.

1. The appellant, who was husband of the deceased,

has filed the present appeal challenging his conviction and

sentence under sections 304B, 498A and 201 of Indian Penal

Code, 1860 (for short, ‘IPC’). The Trial Court had sentenced the

appellant to undergo rigorous imprisonment for 10 years under

Section 304B, 2 years under Section 498A and 2 years under

Section 201 IPC. However, the High Court of Uttarakhand at

Nainital had reduced the sentence of the appellant under

Section 304B IPC from ten years to seven years.

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2. The appellant and deceased Chhilo Kaur got married

in the year 1993. The deceased was residing in her

matrimonial home. On 24.6.1995 at 6.15 p.m. father of the

deceased, Pratap Singh (PW-1) filed complaint with the P.S.

Jaspur stating that his daughter Chhilo Kaur was married to the

appellant about two years ago. In the marriage, he had given

sufficient dowry as per his status. Two months after the

marriage, his daughter came to her parental home and told the

complainant (PW-1) that her in-laws are asking her to bring a

motorcycle as the same was not given in dowry. The

complainant pacified his daughter stating that at present he is

not capable of giving motorcycle, however, whenever he is in a

position to do so, he will certainly give and sent his daughter

back to her matrimonial home. Thereafter, whenever his

daughter came to the parental home, she used to talk about

the demand of motorcycle and subsequently after about one

year of marriage, the demand for land was also made. Every

time he used to pacify his daughter and sent her back. On the

previous day i.e. on 23.6.1995, one Jagir Singh of village

Bhogpur Dam, where his daughter lived after marriage with the

appellant came to complainant and told him that his daughter,

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Chhilo Kaur has been murdered by her in-laws. On getting the

information, the complainant along with his wife came to

village Bhogpur Dam on 24.6.1995 and were shocked to know

that on 22.6.1995 in the morning at about 8.00 a.m., his

daughter was beaten up and strangulated to death by her

husband Charan Singh, (the appellant herein), brother-in-law,

Gurmeet Singh (accused no.2) and mother-in-law Santo Kaur

(accused no.3). They had cremated the dead body without

even informing the complainant. She was killed on account of

non-fulfilment of demand of motorbike and land in dowry. The

matter was investigated and chargesheet was filed against

Charan Singh, Gurmeet Singh and Santo Kaur.

3. The prosecution examined six witnesses and defence

examined one witness. The Trial Court, after evaluating the

evidence, convicted Charan Singh (appellant), Gurmeet Singh

and Santo Kaur under Sections 304B, 498A and 201 IPC and

sentenced them to undergo rigorous imprisonment for ten

years u/s 304B IPC, rigorous imprisonment for two years u/s

498A IPC and rigorous imprisonment for two years u/s 201 IPC.

In appeal filed by the convicts before the High Court, the

conviction and sentence of Gurmeet Singh (brother-in-law) and

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Santo Kaur (mother-in-law) under Section 304B, 498A and 201

IPC were set aside and they were acquitted of the charges,

whereas the conviction of the appellant was upheld. However,

the sentence of rigorous imprisonment of ten years under

Section 304B IPC, awarded to the appellant was reduced to

seven years. It is the aforesaid judgment of the High Court

which is under challenge in the present appeal.

4. Mr. Shubhranshu Padhi, learned counsel who was

requested to assist the Court as an amicus curiae on account of

absence of the counsel who filed the appeal, submitted that the

conviction and sentence of the appellant cannot be legally

sustained either under Sections 304B or 498A IPC. The pre-

requisites for raising presumption under Section 304B IPC is

that soon before the death, the deceased had been subjected

to cruelty or harassment for or in connection with any demand

of dowry. The presumption in regard to dowry death can be

raised in terms of Section 113B of the Indian Evidence Act,

1872 (for short, ‘IEA’) only if it is shown that soon before death,

such woman had been subjected to cruelty or harassment for,

or in connection with the demand of dowry.

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5. If the evidence led by the prosecution is examined,

no case for conviction under Section 304B or 498A IPC can

possibly be made out as none of the witnesses have stated that

there was any harassment or cruelty to the deceased or

demand of dowry immediately before her death. The marriage

took place in the year 1993, the deceased died on 22.6.1995.

None of the family members of the deceased including her

father, maternal grandmother or the maternal uncle have

stated anything about the harassment of the deceased

immediately before her death in connection with demand of

dowry. In fact, the maternal grandmother and two maternal

uncles who were living at distance of about one farlang from

the village of the deceased were even present at the time of

her cremation. They did not raise any issue either by lodging a

complaint to the police or otherwise. In fact, it was admitted by

the maternal grandmother and the uncles of the deceased that

after the cremation, with the intervention of the panchayat,

they had collected all the dowry articles. It was further

submitted that intimation was also given to the father of the

deceased who in fact was living at a distance of about 290 kms.

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However, the cremation could not be delayed on account of

waiting for the arrival of the father of the deceased.

6. It was further argued that one material witness, Jagir

Singh, who was named by the complainant in the FIR, has not

been produced by the prosecution in evidence. He is the

person who according to the complainant is a resident of village

Bhogpur Dam, where the deceased used to live in her

matrimonial home. He had informed the complainant about the

death of his daughter. Why this material witness was withheld

by the prosecution? As per the statement of the I.O. Babban

Singh, who appeared as PW-6, during investigation the

statement of Jagir Singh was recorded. Once the ingredients of

Sections 304B, 498A IPC and Section 113B of IEA are not made

out, no presumption of dowry death can be raised. In support

of the arguments, reliance was placed on Baijnath v. State of

M.P

1

. It was further argued that the allegations against the

appellant, his brother and mother were same. However,

against acquittal of his brother and mother, no appeal has been

preferred by the State and death of the wife of the appellant

was not unnatural as she was suffering from fits. In her cross-

1 (2017) 1 SCC 101

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examination, the maternal grandmother admitted that the

deceased had fits.

7. On the other hand, learned counsel for the State

submitted that it is a case in which a young woman was killed

by her in-laws in lust for dowry. The marriage was merely two

years old and the death was unnatural. The deceased was

cremated without even informing her parents. The maternal

grandmother and the two uncles who were present at the time

of cremation had seen injury marks on the body of the

deceased and also the broken tooth. They could not lodge the

complaint as they were threatened. The death occurred in the

matrimonial home, hence onus lies heavily on the appellant to

dislodge the presumption. There is sufficient material on record

in the form of statements of witnesses produced by the

prosecution that there was repeated demand for dowry by the

appellant. There is no error in the judgment of the High Court.

Sufficient indulgence has already been shown by the High Court

by reducing the sentence of the appellant from ten years to

minimum seven years as provided under Section 304B of the

IPC.

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8. Heard learned counsel for the parties and perused

the relevant record.

9. The marriage of the appellant with the deceased was

solemnised in the year 1993. She died on 22.6.1995. FIR was

registered on the complaint of the father of the deceased on

24.6.1995 against Charan Singh, the appellant herein, brother-

in-law, Gurmeet Singh and mother-in-law Santo Kaur. However,

in appeal filed by the convicts before the High Court, brother-in-

law, Gurmeet Singh and mother-in-law, Santo Kaur were

acquitted whereas the conviction of the appellant was upheld.

The sentence awarded to the appellant under Section 304B IPC

was reduced from ten years rigorous imprisonment to seven

years rigorous imprisonment. The sentence of two years

rigorous imprisonment each awarded under Section 498A and

Section 201 IPC was affirmed.

10. The conviction of the appellant is under Sections

304B and 498A IPC raising presumption regarding dowry death

within seven years of marriage. To appreciate the arguments

raised by the learned counsel for the parties, a perusal of

Section 304B and 498A IPC and Section 113B of the Indian

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Evidence Act would be required. The same are extracted

hereinbelow:-

“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.

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 purposes 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

(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

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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.

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 had 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 Indian Penal Code (45 of 1860)”.

11. The interpretation of Sections 304B and 498A IPC

came up for consideration in Baijnath’s case (supra). The

opinion was summed up in paras 25 to 27 thereof, which are

extracted below:-

“25. Whereas in the offence of dowry death

defined by Section 304-B 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.

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The offence under Section 498-A of the

Code is attracted qua the husband or his relative if

she is 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.

26. 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.

27. 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 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.

12. As the aforesaid case was also pertaining to dowry

death, presumption under Section 113B of the Indian Evidence

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Act was also discussed in detail in paras 29 to 31 of the

aforesaid judgment. The same are extracted below:-

“29. 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 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.

30. 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 113-B of the Act against the

accused. Proof of cruelty or harassment by the

husband or his 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

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.

31. 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

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overeased to gloss over and condone its failure to

prove credibly, the basic facts enumerated in the

sections involved, lest justice is the casualty”.

13. A conjoint reading of Section 304B IPC and Section

113B of the Indian Evidence Act with reference to the

presumption raised was discussed in para 32 of the aforesaid

judgment, which is extracted below:-

“32. This Court while often dwelling on the

scope and purport of Section 304-B of the Code and

Section 113-B 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 304-B as in Shindo v. State of

Punjab [Shindo v. State of Punjab, (2011) 11 SCC

517 : (2011) 3 SCC (Cri) 394] and echoed in Rajeev

Kumar v. State of Haryana [Rajeev Kumar v. State of

Haryana, (2013) 16 SCC 640 : (2014) 6 SCC (Cri) 346]

. In the latter pronouncement, this Court propounded

that one of the essential ingredients of dowry death

under Section 304-B 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

113-B of the Act. It referred to with approval, the

earlier decision of this Court in K. Prema S.

Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla

Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri)

271] to the effect that to attract the provision of

Section 304-B 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

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subjected to cruelty and harassment “in connection

with the demand for dowry”.

14. With reference to the legal position as referred to

above, the matter is now required to be examined as to

whether the case in hand falls in the category where the

presumption can be raised against the appellant relieving the

prosecution from proving its case and putting the onus on the

accused/appellant.

15. The date of death of the deceased is 22.6.1995. She

was cremated on the same day. The stand taken by the

appellant was that the parents of the deceased were informed

who were living about 290 kms. away. However, they could not

reach on time. It was further submitted that the maternal

grandmother and two maternal uncles who were living at a

distance of about one furlong from the matrimonial residence of

the deceased when she died were present at the time of

cremation. They neither raised any issue nor did they inform

the police. Rather on the intervention of the panchayat, they

had taken all the dowry articles.

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16. The cruelty or harassment has to be soon before the

death. In his evidence, Pratap Singh (PW-1), father of the

deceased stated that two months after the marriage his

daughter came to the parental home stating that the appellant

was demanding motorcycle, however, she was sent back.

Thereafter, she again came and apprised him that the demand

of motorcycle was being pressed by the appellant. Besides

motorcycle, land was also demanded. There is nothing in the

statement that any such demand was raised immediately

before the death as the incidents sought to be referred to are

quite old. He admitted in his cross examination that at the time

of funeral, his mother-in-law and two brothers-in-law were

present. However, they were threatened not to lodge the

complaint. Balbir Singh (PW-2), maternal uncle of the

deceased, merely stated that at the time of marriage sufficient

dowry was given by the father of the deceased. However, later

he heard that the appellant had demanded the motorcycle. In

his cross-examination, he admitted that he was living at the

distance of about one furlong from the house of the appellant.

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No dowry was demanded at the time of marriage of the

deceased. He did not state that the deceased ever shared with

him about the demand of dowry or any harassment on account

of non-fulfilment thereof though he was living close to the

matrimonial house of the deceased.

17. Beero Bai (PW-3), the maternal grandmother of the

deceased, stated that her house is located at a distance of

about one mile from the house of the appellant. She used to go

to the house of the deceased. The deceased was being treated

badly. She was not allowed to go to her parental house. The

deceased informed her that the appellant used to ask her to

bring motorcycle from her maternal grandmother. After the

death of her husband in February 1995, the appellant asked the

deceased to get land from her maternal grandmother. On a

demand made to her, she replied in negative. However, in her

cross-examination, she stated that the land was not demanded

from her. Even in her statement, there is nothing to suggest

that soon before the death, any cruelty or harassment was

made to the deceased, either by the appellant or his family

members. All what is stated is regarding the demand. There

are no details of any cruelty or harassment, though this witness

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was living about a kilometre from the house of the deceased

and is her maternal grandmother.

18. Joginder Singh (PW-4) is another witness produced by

the prosecution, who is maternal uncle of the deceased. He

was declared hostile.

19. Rajindra Singh (PW-5), Sub Inspector was a formal

witness who had only registered the FIR and arrested the

accused.

20. Babban Singh (PW-6), Circle Officer, Faridpur was the

Investigating Officer. In his examination-in-chief, he admitted

that he recorded the statement of Jagir Singh. He is the person

who, as per the complaint made to the police, had informed the

father of the deceased about the death of his daughter.

However, he was not produced in evidence.

21. In the aforesaid evidence led by the prosecution,

none of the witnesses stated about the cruelty or harassment

to the deceased by the appellant or any of his family members

on account of demand of dowry soon before the death or

otherwise. Rather harassment has not been narrated by

anyone. It is only certain oral averments regarding demand of

motorcycle and land which is also much prior to the incident.

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The aforesaid evidence led by the prosecution does not fulfil

the pre-requisites to invoke presumption under Section 304B

IPC or Section 113B of the Indian Evidence Act. Even the

ingredients of Section 498A IPC are not made out for the same

reason as there is no evidence of cruelty and harassment to the

deceased soon before her death.

22. Defence had produced Gurmej Singh as DW-1, who

was head of the village at the time of incident. He stated that

the information about the death was given to the parents of the

deceased and other family members. He stated that

belongings of the deceased were handed over to her maternal

grandmother and uncle after cremation. His statement is in

line with the admission made by Biro Bai (PW-3), maternal

grandmother, Balbir Singh (PW-2). Meaning thereby that there

was no suspicion regarding the death of the deceased.

23. On a collective appreciation of the evidence led by

the prosecution, we are of the considered view that the pre-

requisites to raise presumption under Section 304B IPC and

Section 113B of the Indian Evidence Act having not been

fulfilled, the conviction of the appellant cannot be justified.

Mere death of the deceased being unnatural in the matrimonial

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home within seven years of marriage will not be sufficient to

convict the accused under Section 304B and 498A IPC. The

cause of death as such is not known.

24. For the reasons mentioned above, in our opinion, the

conviction and sentence of the appellant under Section 304B,

498A and 201 IPC cannot be legally sustained. The appeal is

accordingly allowed. The impugned judgment of the High Court

is set aside. The bail bonds stand cancelled.

_____________, J.

(Abhay S. Oka)

____________, J.

(Rajesh Bindal)

New Delhi

April 20, 2023

// NR, PM //

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