1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.408 OF 2017

JAGJIT SINGH ...APPELLANT(S)

VERSUS

STATE OF PUNJAB ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. The appeal after granting special leave to

appeal is filed by the appellant against the judgment of

the High court of Punjab and Haryana affirming the

judgment of the trial Court convicting the appellant

under Section 304-B IPC but reducing the sentence from 8

years rigorous imprisonment to a period of 7 years under

the aforesaid section. The appellant who was tried along

with his parents and two brothers was acquitted of the

charge under Section 406 of the Indian Penal Code by the

trial Court. In view of his conviction under Section

2

304-B IPC, the trial Court did not find it necessary to

record a separate conviction under Section 498-A IPC.

2. We heard Dr. J.P. Dhanda, learned counsel for

the appellant and Ms. Jaspreet Gogia, learned counsel for

the respondent-State.

3. There is no dispute that the marriage between

the appellant and his deceased wife took place on 24

th

January, 1998. It is also not in the region of

controversy that she died well within seven years of her

marriage. It is undisputed that the death of the

appellant’s wife was unnatural and she died along with

her child by way of drowning in a river. In fact, PW8 -

ASI in his deposition stated that both the dead bodies

were secured together with one chunni. The only question

is whether the death is to be attributed to

cruelty/harassment on the part of the appellant arising

out of demand for dowry as contemplated under Section

304-B of the IPC.

4. Learned counsel for the appellant pointed out

that the Court did not consider the evidence given by the

appellant and that neither cruelty nor any demand for

3

dowry is made out. It is contended that the appellant’s

wife apparently took her life along with that of her

daughter on account of the fact that she was consistently

taunted by PW3 – the sister of the appellant’s wife who

was married to an industrialist. The appellant was

earning a sum of Rs.3000/- per month. However,

notwithstanding the same, the appellant had taken care of

her by fulfilling the desire of the deceased wife to

pursue education and she was, in fact, doing her Post-

Graduation at the time of her untimely death. The

appellant’s father (we note that the appellant along with

his two brothers and mother were tried by the trial Court

and the trial Court convicted the appellant and his

mother under Section 304-B but appellant’s mother stood

acquitted by the High Court) had in fact financed the

education of the deceased wife.

5. Learned counsel for the State pointed out that

no reliance is to be placed on the evidence of the DW6

and DW8. They were neighbours. Their evidence supporting

the case of the appellant should be perceived as born out

of their need to maintain cordial relationship with their

4

neighbours. As to what happened within the four walls of

the house, she would question as to how could they depose

before the Court. She sought support from the evidence

of PW1 and PW3. The evidence would indicate that there

is a proximity in a point of time between the acts, as

complained of, against the appellant and the untimely

death of the deceased.

6. Before we embark on the examination of the case

it becomes necessary to remind ourselves of the contours

of the jurisdiction of this Court in an appeal which is

maintained after grant of special leave under Article 136

of the Constitution of India. Does the Court have the

duty as a regular court to consider an appeal or is its

jurisdiction circumscribed by the consideration that this

Court is dealing with the appeal on the basis of grant of

special leave.

7. We may profitably advert to the views of the

majority expressed in Saravanabhavan and Govindaswamy Vs.

State of Madras AIR 1966 SC 1273, which is as under:-

“7. This is an appeal under Article 136 of

the Constitution and we shall first state what

this Court will ordinarily consider in such an

appeal. It is not to be forgotten that this

5

Court’s ordinary appellate jurisdiction in

criminal cases is to the extent laid down in

Article 134 of the Constitution. Some of the

appeals in that article are available as of

right and others lie if a special certificate

is granted by the High Court. This appeal

belongs to neither class. It is not as of

right and no special certificate has been

granted by the High Court. There is in our

jurisdiction no “sacred right of appeal” as

the French Canadian law assumes (See Mayor etc.

of Montreal v. Brown, (1876) 2 AC 168 (184).

Once a decision is given by the High Court,

that is final unless an appeal is allowed by

special leave of this Court. No doubt this

Court has granted special leave to the

appellants but the question is one of the

principles which this Court will ordinarily

follow in such an appeal. It has been ruled in

many cases before that this Court will not

reassess the evidence at large, particularly,

when it has been concurrently accepted by the

High Court and the court or courts below. In

other words this Court does not form a fresh

opinion as to the innocence or the guilt of

the accused. It accepts the appraisal of the

evidence in the High Court and the court or

courts below. Therefore, before this Court

interferes something more must be shown, such

as, that there has been in the trial a

violation of the principles of natural justice

or a deprivation of the rights of the accused

or a misreading of vital evidence or an

improper reception or rejection of evidence

which, if discarded or received, would leave

the conviction unsupportable, or that the

court or courts have committed an error of law

or of the forms of legal process or procedure

by which justice itself has failed. We have,

in approaching this case, borne these

principles in mind. They are the principles

for the exercise of jurisdiction in criminal

6

cases, which this Court brings before itself

by a grant of special leave.”

(Emphasis supplied)

8. In Mst. Dalbir Kaur and Others Vs. State of

Punjab 1976 (4) SCC 158, the Bench of two learned Judges

laid down as follows:-

“3. As to the principles on which special

leave is granted by this Court, the same have

been clearly and explicitly enunciated in a

large number of decisions of this Court. It

has been pointed out that the Supreme Court is

not an ordinary court of criminal appeal and

does not interfere on pure question of fact.

It is only in very special cases where the

court is satisfied that the High Court has

committed an error of law or procedure as a

result of which there has been a serious

miscarriage of justice that the court would

interfere with the concurrent findings of the

High Court and the trial Court. It has also

been pointed out by this Court more than once

that it is not in the province of this Court

to reappraise the evidence and to go into the

question of credibility of the witnesses

examined by the parties, particularly when the

courts below have after considering the

evidence, given their findings thereon. In

other words, the assessment of the evidence by

the High Court would be taken by this Court as

final, unless it is vitiated by any error of

law or procedure, by the principles of natural

justice, by errors of record or misreading of

evidence, non-consideration of glaring

inconsistencies in the evidence which demolish

the prosecution case or where the conclusion

of the High Court is manifestly perverse and

unsupportable and the like . As early as 1950

7

this Court in Pritam Singh v. State , 1950 SCR

453: AIR 1950 SC 169: 51 Cri LJ 1270,

speaking through Fazl Ali, J. (as he then was)

observed as follows:

The obvious reply to all these

arguments advanced by the learned Counsel

for the appellant, is that this Court is

not an ordinary court of criminal appeal

and will not, generally speaking, allow

facts to be reopened, especially when two

courts agree in their conclusion in regard

to them and when the conclusions of fact

which are challenged are dependent on the

credibility of witnesses who have been

believed by the trial Court which had the

advantage of seeing them and hearing their

evidence.

In arguing the appeal, Mr. Sethi

proceeded on the assumption that once an

appeal had been admitted by special leave,

the entire case was at large and the

appellant was free to contest all the

findings of fact and raise every point which

could be raised in the High Court or the

trial Court. This assumption is, in our

opinion, entirely unwarranted.

The rule laid down by the Privy Council

is based on sound principle, and, in our

opinion, only those points can be urged at

the final hearing of the appeal which are

fit to be urged at the preliminary stage

when leave to appeal is asked for, and it

would be illogical to adopt different

standards at two different stages of the

same case.

On a careful examination of Article 136

along with the preceding article, it seems

clear that the wide discretionary power

with which this Court is invested under it

is to be exercised sparingly and in

exceptional cases only,....

8

Generally speaking, this Court will not

grant special leave, unless it is shown

that exceptional and special circumstances

exist, that substantial and grave injustice

has been done and that the case in question

presents features of sufficient gravity to

warrant a review of the decision appealed

against.

Analysing this decision, two principles appear

to have been clearly laid down by this Court:

“(1) that in appeals by special leave

against the concurrent findings of the

courts below, this Court would not go into

the credibility of the evidence and would

interfere only when exceptional and special

circumstances exist which result in

substantial and grave injustice having been

done to the accused; and

(2)that even after special leave has been

granted the appellant is not free to

contest all the findings of fact, but his

arguments would be limited only to those

points, even at the final hearing, which

could be urged at the stage when the

special leave to appeal is asked for.”

8. Thus the principles governing

interference by this Court in a criminal

appeal by special leave may be summarised as

follows:

“(1) that this Court would not interfere

with the concurrent finding of fact based

on pure appreciation of evidence even if it

were to take a different view on the

evidence;

(2) that the Court will not normally enter

into a reappraisement or review of the

9

evidence, unless the assessment of the High

Court is vitiated by an error of law or

procedure or is based on error of record,

misreading of evidence or is inconsistent

with the evidence, for instance, where the

ocular evidence is totally inconsistent

with the medical evidence and so on ;

(3) that the Court would not enter into

credibility of the evidence with a view to

substitute its own opinion for that of the

High Court;

(4) that the Court would interfere where

the High Court has arrived at a finding of

fact in disregard of a judicial process,

principles of natural justice or a fair

hearing or has acted in violation of a

mandatory provision of law or procedure

resulting in serious prejudice or injustice

to the accused;

(5)this Court might also interfere where

on the proved facts wrong inferences of law

have been drawn or where the conclusions of

the High Court are manifestly perverse and

based on no evidence.

It is very difficult to lay down a rule of

universal application, but the principles

mentioned above and those adumbrated in the

authorities of this Court cited supra provide

sufficient guidelines for this Court to decide

criminal appeals by special leave. Thus in a

criminal appeal by special leave, this Court

at the hearing examines the evidence and the

judgment of the High Court with the limited

purpose of determining whether or not the High

Court has followed the principles enunciated

above. Where the Court finds that the High

Court has committed no violation of the

various principles laid down by this Court and

has made a correct approach and has not

ignored or overlooked striking features in the

10

evidence which demolish the prosecution case,

the findings of fact arrived at by the High

Court on an appreciation of the evidence in

the circumstances of the case would not be

disturbed.”

(Emphasis supplied)

9. We may also notice the judgment rendered by this

Court in Sushil Ansal v. State Through Central Bureau of

Investigation 2014 (6) SCC 173. Therein, in the

judgment rendered by the T.S. Thakur,J. as His Lordship

then was, it is inter alia held in para 55 as follows:

“55. ....Perversity in the findings,

illegality or irregularity in the trial that

results in injustice or failure to take into

consideration an important piece of evidence

are some of the situations in which this

Court may reappraise the evidence adduced at

the trial but not otherwise.... "

(Emphasis supplied)

10. We lastly notice a recent judgment of this Court

in the case of Mohd. Ali alias Guddu v. State of Uttar

Pradesh 2015 (7) SCC 272 wherein the Court inter alia

held as follows:

“17. In Ganga Kumar Srivastava v. State of

Bihar, (2005)6 SCC 211 : 2005 SCC (Cri) 1424,

the Court after referring to a series of

decisions on exercise of the power of this

Court under Article 136 of the Constitution,

11

culled out the following principles: (SCC p.

217, para 10)

“(i) The powers of this Court under

Article 136 of the Constitution are very

wide but in criminal appeals this Court

does not interfere with the concurrent

findings of fact save in exceptional

circumstances.

(ii) It is open to this Court to

interfere with the findings of fact given

by the High Court, if the High Court has

acted perversely or otherwise improperly.

(iii) It is open to this Court to invoke

the power under Article 136 only in very

exceptional circumstances as and when a

question of law of general public

importance arises or a decision shocks the

conscience of the Court.

(iv) When the evidence adduced by the

prosecution fell short of the test of

reliability and acceptability and as such

it is highly unsafe to act upon it.

(v)Where the appreciation of evidence

and finding is vitiated by any error of

law of procedure or found contrary to the

principles of natural justice, errors of

record and misreading of the evidence, or

where the conclusions of the High Court

are manifestly perverse and unsupportable

from the evidence on record. ”

(Emphasis supplied)

12

11. Learned counsel for the appellant drew our

attention to the recent judgment of this Court in the

case of Major Singh and Another v. State of Punjab

reported in 2015 (5) SCC 201 . It was a case of

unnatural death. Therein the prosecution witnesses, the

complainant-father and brother of the deceased deposed

that they saw the accused dragging the deceased towards

the room inside the house and that she was trembling and

on seeing the witnesses, all the four accused ran away

and the deceased breathed her last. The father had

spoken about the information he had given to the village

panchayat. The Court proceeded inter alia as follows:

“10. To sustain the conviction under

Section 304-B IPC, the following essential

ingredients are to be established:

(i)the death of a woman should be

caused by burns or bodily injury or

otherwise than under a 'normal

circumstance';

(ii)such a death should have occurred

within seven years of her marriage;

(iii) she must have been subjected

to cruelty or harassment by her

husband or any relative of her

husband;

13

(iv)such cruelty or harassment should

be for or in connection with demand of

dowry; and

(v)such cruelty or harassment is

shown to have been meted out to the

woman soon before her death.”

The Court also proceeded to hold as follows:

“14. The prosecution has not examined

any independent witness or the panchayatdars

to prove that there was demand of dowry and

that the deceased was subjected to ill-

treatment. Ordinarily, offences against

married woman are being committed within the

four corners of a house and normally direct

evidence regarding cruelty or harassment on

the woman by her husband or relatives of the

husband is not available. But when PW-3 has

specifically stated that the demand of dowry

by the accused was informed to the

panchayatdars and that panchayat was taken to

Village Badiala, the alleged ill-treatment or

cruelty of Karamjit Kaur by her husband or

relatives could have been proved by the

examination of the panchayatdars. The fact

that the deceased was subjected to harassment

or cruelty in connection with demand of dowry

is not proved by the prosecution. It is also

pertinent to note that both the courts below

have acquitted all the accused for the

offence punishable under Section 498-A IPC.”

12. We noticed that it was a case where the courts

had acquitted all the accused for the offence under

Section 498-A of the IPC. The Court noted that the case

14

of the prosecution is that there is a demand for scooter

and proceeded to hold inter alia as follows:

“18. Applying these principles to the instant

case, we find that there is no evidence as to

the demand of dowry or cruelty and that

deceased Karamjit Kaur was subjected to dowry

harassment “soon before her death”. Except

the demand of scooter, there is nothing on

record to substantiate the allegation of

dowry demand. Assuming that there was demand

of dowry, in our view, it can only be

attributed to the husband Jagsir Singh who in

all probability could have demanded the same

for his use. In the absence of any evidence

that the deceased was treated with cruelty or

harassment in connection with the demand of

dowry “soon before her death” by the

appellants, the conviction of the appellants

under Section 304-B IPC cannot be sustained.

The trial court and the High Court have not

analysed the evidence in the light of the

essential ingredients of Section 304-B IPC

and the conviction of the appellants under

Section 304-B IPC is liable to be set aside.”

(Emphasis supplied)

13. In this connection it is to be noticed that the

appellants in the said case was not the husband, but

they were the parents-in-law of the deceased.

14. We have already noticed that the essential

ingredients of Section 304-B IPC as noticed by this

Court in Major Singh & Another vs. State of Punjab

15

(supra). Parliament has inserted Section 113-B in the

Evidence Act. In order that the presumption therein has

to be applied it must be established that soon before

her death, such woman must have been subjected by such

person to cruelty or harassment for, or in connection

with any demand of dowry. Upon this fact being

established, undoubtedly, the court is mandated to

assume that the person has indeed caused the dowry death

as contemplated in Section 304-B IPC. Therefore, the

presumption cannot apply unless it is established that

soon before her death, a woman has been subjected to

cruelty or harassment for or in connection with any

demand for dowry. The words “soon before” her death has

also been considered in a large number of cases.

15. We need only to advert to a recent judgment

rendered by a Bench consisting of three learned Judges

in Rajinder Singh v. State of Punjab reported in 2015(6)

SCC 477 only for the purpose of appreciating the words

“soon before” occurring in Section 304-B IPC. This is

what the Court has to see

“24. We endorse what has been said by

these two decisions. Days or months are not

16

what is to be seen. What must be borne in

mind is that the word “soon” does not mean

“immediate”. A fair and pragmatic

construction keeping in mind the great social

evil that has led to the enactment of Section

304-B would make it clear that the expression

is a relative expression. Time-lags may

differ from case to case. All that is

necessary is that the demand for dowry should

not be stale but should be the continuing

cause for the death of the married woman

under Section 304-B.”

16. Having regard to the aforesaid statements of the

law, we embark on a consideration of the appeal. The

prosecution case as projected through PW1 complainant –

Mohinder Singh, the father of the deceased is as

follows:- the deceased was married on 24

th

January, 1998

and he had given dowry beyond his capacity in the

marriage. After some time of the marriage, all the five

accused started beating the deceased. They started

taunting her that she had brought meagre dowry and that

her parents had not given a Maruti car in the marriage

due to which they had felt belittled in their

neighbourhood. The deceased conveyed this fact to the

complainant on telephone. The daughter was aged about

1½ years at the time of her death. In December 2000, the

17

deceased accompanied by her sister went to see her

parents at Amao Farm, PS Khatima. She informed the

complainant that she was being subjected to harassment

by her in-laws. She also told him that the accused had

threatened her that she could return to her matrimonial

home only if she brought a sum of Rs.2 lacs from her

parents for the purchase of a Maruti car. The

complainant then got prepared a fixed deposit receipt

for Rs.30,000/- and handed it over to the deceased. The

complainant has also informed at that time to accused

Jagjit Singh on phone that he would visit Ludhiana after

the sale of the crops and would pay the accused the sum

of Rs.2 lacs demanded by them. He also requested him not

to harass the deceased. However, even then the accused

gave beatings to the deceased and turned her out of

their house. The deceased wife then went to the house of

Avtar Singh (nephew of the complainant), and he took her

to the house of the accused and also paid them

Rs.2000/- and requested him to treat the deceased

nicely. On February 16, 2001 at about 11:30 a.m. the

deceased made a telephone call from the PCO to the

complainant that all the five accused were subjecting

18

her to extensive harassment and that she was feeling

depressed also informed him that on that date also the

accused had given her beatings and turned her and her

daughter out of the matrimonial home. She also told him

that she was making this telephone call from the PCO.

The complainant consoled the deceased and told her that

he was coming to Ludhiana and advised her to return to

her matrimonial home. It is also stated that his nephew

on being contacted told them that the accused and his

mother approached the house of Avtar Singh in the

evening and enquired about the deceased from him and

from his other relations. It is alleged that Avtar Singh

told that they had not visited him nor he had any

information about them. It is the case of the

prosecution that complainant lodged the FIR on

17.02.2001.

17. PW1, father of the deceased inter alia states as

follows:

The marriage between the appellant and his daughter

(deceased) took place on 24.1.1998. After a good period

of marriage all the accused persons in the home started

19

beating the deceased for not bringing sufficient dowry.

He states that they also used to taunt his daughter for

bringing insufficient dowry. The appellant also demanded

a Maruti car. This fact was brought to the notice by

his daughter on telephone. A female child was born.

Thereafter, he states that the deceased went to her

house, two months before the untimely death took place

namely in December 2000. He states that his daughter

alongwith PW3(another daughter) came to his farm. He

states that his daughter told him all the accused were

harassing and demanding Maruti car or Rupees two lacs

for purchasing the car. The deceased daughter told him

that the accused misbehaved with her and she will not go

to her in-laws house as they used to beat her and

further (it may be noted that there is no allegation

that the accused appellant used to beat her) he deposed

that she told him that they would kill her. He states

that his brother Ram Singh and daughter PW3 were

present. He further states that he send his daughter to

her in-laws house after consoling her. Also a FDR for

Rs.30,000/- (Rupees Thirty Thousand only) was given to

her. He phoned up the accused not to maltreat his

20

daughter and he promised to give Rupees two lacs after

selling the crop. He next says that all the accused re-

started giving the beatings and sent away his daughter

to the house of his nephew Avtar Singh. Avtar Singh, it

is alleged brought this to his notice and gave Rupees

two lacs to the accused. PW1 states that the

maltreatment, however, continued. Thereafter, he

relates about one event that is on 16.2.2001 the

deceased daughter phoned him up from a PCO. She informed

that all the accused were maltreating and she was very

much upset and the accused threw her out from the house

and that the accused told her that the accused shall not

allow her without Maruti car. In cross examination, PW1

stated that the deceased daughter was preparing for

examination B.A. Part-I which she was doing as a private

candidate and that she did graduation after the marriage

by studying in her matrimonial home. He also states

that at the time of her death, she was preparing for the

M.A examination. He claims to have made payment of

Rs.935/- as the admission fee, which according to the

accused-appellant, was paid by his father but he does

admit that bank draft of Rs.935/- was got prepared by

21

the father of the appellant. He says that he does not

know whether the appellant was working as turner. He

says he might be working but he does not know that he is

earning Rs.2000/- or Rs.2500/- per month. He admits the

photograph of his deceased daughter apparently in

connection with the marriage of the ‘Devar’ of the

daughter of Iqbal Singh (father of the appellant). He

admits that his other daughter (PW3) is married to a

person having his own industry which is being run by his

son-in-law, his brother and father. He admits that

neither his brother who is lawyer nor the sister’s son

who appears to be a Superintendent in the BPO Office,

Ludhiana made any report to the police station or

elsewhere about the harassment. He further states that

he did not convene any panchayat in this regard. He has

denied the suggestion that he used to tell his deceased

daughter to separate from the parents-in-law. He denies

the suggestion (apparently that his daughter took her

life) on the basis of the FIR lodged by him.

18. We may also advert to what PW3 has actually

said. Sometime after the marriage, the accused started

22

taunting her deceased sister by saying that she brought

insufficient dowry and that there is a demand for dowry.

She says that this is disclosed about 5 or 6 months

after the marriage. Thereafter, she repeatedly told her

about the harassment at the hands of the accused on

account of dowry. Thereafter, she refers to meeting her

parents in December 2000 along with the deceased. She

speaks along the same lines as her father. On

16.2.2001, it is alleged that the deceased came to her

house and wept bitterly. She told her that in the

preceding day, her husband (appellant) has hurled abuses

at her father on phone and at that time she was

accompanied by her daughter. That all the five (5)

accused used to beat her and she told her that when she

prevented her husband from abusing her father, the

appellant gave her more beating. She specifically says

that when the appellant went to take meal, her daughter

also started sharing meal with her and then the

appellant slapped her. The deceased also told her that

when she protested, Balwant Singh (brother of the

appellant) also beat her and abused her. It is

thereafter she goes to a PCO and makes the call which

23

PW1 has spoken about. She does say that the appellant's

mother came to her house to make enquiry about the

deceased and she told her that the deceased was under

depression and has gone to make a call at the PCO and

she should take her home. The appellant's mother told

her that she would herself return home.

19. In her cross examination she does state as

follows:

Her husband and father-in-law are running their own

industry. More importantly, she says it is correct that

the status of the accused was lower than that of her in-

laws. They had represented that they had applied for

industrial connection and would start their own

industry. She admits that the deceased continued with

her studies and was preparing for M.A. Examination at

the time of her death so as to become self-reliant. She

denies the suggestion made to the effect that it is on

account of his financial status that the appellant used

to shun the company of her husband. She also states

that her uncle, an Advocate was informed about the

harassment but he never lodged any complaint or FIR with

24

a view to ensure settlement of the deceased in her

matrimonial home. She states that on 16.2.2001, the

deceased spent about 5 – 7 minutes with her. She denies

the allegation that she also taunted the deceased that

the birth of her daughter has further increased the

liability and therefore, the deceased committed suicide.

20. No doubt we notice that PW5 is examined to show

that he was at the PCO from where the deceased made a

call on 16.2.2001 that he just saw but did not hear her

talk. She was weeping, the witness deposed. Though

there is a definite role for the nephew namely, Av tar

Singh, which is referred to in the deposition of both

PW1 and PW3, the prosecution has given up the said

witness as being won over by the accused.

21. Having adverted to the evidence which is the

basis for imputing the charge against the appellant, we

may now examine what is the defence evidence. DW5 is

the father-in-law of the appellant's brother (Sarabjit

Singh). Be it noted that Sarabjit Singh was also an

accused in the trial. He says that after 6 years of

marriage, his daughter and son-in-law separated from the

25

parents. He states that his daughter always remained

happy in the house of her husband. He states that PW3

is married into an affluent family. PW3 used to tell

that she has been married in a poor family. The

deceased had told her that she would get higher

education and bring herself to the level of PW3. Upon a

daughter being born, again PW3 reminded her of the fact

that she is married in a poor family and asked her to

get rid of the appellant. This is how the deceased

started remaining under depression. He says that the

accused never demanded dowry from the deceased-wife of

the appellant. In cross examination he would say that he

used to visit the house of the appellant after about a

fortnight.

22. DW6 is a neighbour. His house is just opposite

the house of the Iqbal-appellant's father. He has stated

that family of the accused is a nice family. He never

heard or saw the accused harassing the deceased with the

demand of dowry. He denies the allegation that being

neighbour he tried to depose in favour of the accused.

26

He says Sarabjit Singh is also a joint resident with the

present accused.

23. Finally, DW8 is examined. He says that he knows

the family of the accused Iqbal (appellant's father)

very well. He states that the deceased-wife of the

appellant used to visit his house and used to address as

Mausaji. His house is opposite to the house of the

accused. He says that the deceased never complained to

him against the accused. He says that PW1 used to visit

his house sometimes and that PW3 is married at a

distance of 4

th

streets from his house. The family of

PW3 is well off whereas the family of the accused is an

average family. The deceased intended to open a private

school in the house after completing her study. He

deposed that once in his presence PW3 told the deceased

that while she was married in an affluent family, the

deceased was married in a poor family. He states that

PW1 visited the matrimonial home of the deceased once or

twice after the marriage but thereafter he never visited

their house. PW3 is alleged to have taken the deceased

away from the matrimonial home on the morning of the day

27

by telling her that father had come to visit his sister

in village Rampur. He states that the deceased

absolutely had no problem while staying with the

accused. In cross examination he would depose that the

deceased used to meet him sometime. He is not able to

remember the date of marriage of the deceased. He did

not attend the marriage either from this side of the

deceased or from the side of the complainant. He also

did not attend the marriage of PW3 from either side (In

this regard PW3 is the elder sister of the deceased).

He deposed that PW1 did not visit the house of the

appellant as they were poor.

24. A reading of Section 304-B of the IPC along with

Section 113-B of the Evidence Act would establish that

once the prosecution shows that soon before the death of

the wife, she has been subjected to cruelty or

harassment for or in connection with any demand for

dowry, the court shall presume that such person caused

the dowry death within the meaning of Section 304-B IPC.

The words 'shall presume' in Section 113-B of the

Evidence Act, while it mandates that the Court is duty

28

bound to proceed on the basis that the person has caused

the dowry death, the presumption is rebuttable and it is

open to the relative to prove that the ingredients of

Section 304-B IPC are not satisfied. See in this

regard, the following statement of law contained in the

case of G.V. Siddaramesh v. State of Karnataka 2010 (3)

SCC 152:

“26. Section 113-B of the Evidence Act raises

a presumption against the accused and reads:

“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 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 the

Indian Penal Code (45 of 1860).”

A reading of Section 113-B of the Evidence Act

shows that there must be material to show that

soon before the death of woman, such woman was

subjected to cruelty or harassment for or in

connection with demand of dowry, then only a

presumption can be drawn that a person has

committed the dowry death of a woman. It is

then up to the appellant to discharge this

presumption.”

29

25. We may also notice the statement of law

contained in the decision of this Court in the case

of Ashok Kumar v. State of Haryana reported in 2010

(12)SCC 350 which reads as under:

“24. Of course, deemed fiction would introduce

a rebuttable presumption and the husband and

his relatives may, by leading their defence and

proving that the ingredients of Section 304-B

were not satisfied, rebut the same. While

referring to raising of presumption under

Section 304-B of the Code, this Court, in

Kaliyaperumal v. State of T.N.; (2004) 9 SCC

157: 2004 SCC (Cri) 1417 , stated the following

ingredients which should be satisfied: (SCC p.

162, para 4)

“(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.”

26. In the perspective of aforesaid state of the

law, two issues would arise. Whether there is material

within the meaning of Section 113-B of the Evidence Act

30

for the Court to have come to the conclusion that soon

before the death, the deceased was treated with cruelty

or harassed for or in connection with demand for dowry.

In this regard we have noticed that there is a material

in the form of testimony of PW1 and PW3. The marriage

between the accused-appellant and the deceased took place

on 24.1.1998 and it survived only for a little over three

(3) years. It is on 16.2.2001 that the deceased goes to

the house of PW3, her elder sister, spent 5 to 7 minutes,

according to the said witness, complained of cruelty or

harassment by the accused and her own daughter was with

her. On the same day, she goes to the PCO, phones her

father PW1 and tells him about the harassment. PW4 the

person working at the PCO has also stated that she was

weeping and the she made a call. PW1 has spoken about

the contents of the telephonic conversation namely, all

the accused were maltreating and taunting her and that

she was very much upset and the accused had thrown her

out from their house with the daughter and that she will

not be allowed to come back without a Maruti car or

Rupees two lakhs. If he is to be believed (In fact, two

courts have), this would amount to cruelty/harassment in

31

connection with demand for dowry. Therefore, the law

enjoins under Section 113-B of the Evidence Act drawing

of the presumption that the accused has committed the

dowry death.

27. Undoubtedly, the presumption is rebuttable at

the hands of the accused by adducing evidence and

discharging the reverse burden. Whether any such

evidence in discharge with reverse burden has been

successfully adduced and whether it has been considered,

is the next question. The judgment of the trial Court

would show that there is indeed a reference to the

contents of the deposition of PW5, PW6 and PW8.

28. Power under Article 136 seemingly, transcends

all limitations in regard to matters save where it is

expressly excluded. However, by way of self imposed

intrusions into such power, as also by way of deference

to the scheme of the Constitution, the principles we have

alluded to stand culled out. Apposite to the facts of

this appeal, the following principles must inform us:

1. Credibility of witnesses as commended to Courts

below is not ordinarily reappraised.

32

2. Is there misreading of evidence?

3. Is there any non-consideration of glaring

inconsistency in the evidence which demolishes the

prosecution’s case?

4. Are the findings inconsistent with the evidence?

5. Have the courts overlooked striking features in

the evidence or is their failure to consider

important piece of evidence?

6. Whether the evidence adduced by the prosecution

fall short of the test of reliability and

acceptability and it is therefore unsafe to act

upon it?

29. The marriage took place on 24.1.1998. According

to PW3 about 6 months after the marriage, demands were

raised for dowry. Either a Maruti car or Rs.2 lakhs was

the demand. There was physical cruelty according to PW1

father, and PW3 sister. In December, 2000 the deceased,

meet both PW1 along with PW3 and complained about threats

and beatings. The death took place in February, 2001.

33

30. The Troubling features - There is evidence, which

establishes that the father of the appellant contributed

to the continued higher education of the deceased. Is

that compatible with treating his daughter-in-law with

cruelty. The father-in-law stands acquitted by the trial

Court. The mother-in-law even according to PW3 met her

on 16.2.2001 and enquired about her daughter-in-law. PW3

told her that her sister was depressed and asked her to

take her home. PW3 states that the deceased told her

that on the night previous to 16.2.2001, the appellant

had hurled abuse on her father and when she prevented the

appellant from abusing her father, she was beaten even

more. If this be true, indeed, it is cruelty near, in

point of time and bearing a link proximate to the time of

her death immediately thereafter. (The doctor has

conducted post mortem on 28.2.2001. He has opined that

the probable time which elapsed between death and post-

mortem was about 12 days). This mean that the tragic

death took place on the 16

th

or 17

th

of February, 2001. But

PW1 does not depose a word about the telephone call made

on the eve of 16.2.2001. There is evidence of PW3 that in

their estimation the status of the appellant was lower

34

and that they had represented that they had applied for

an industrial connection and would start their own

industry. That apart, Avtar Singh, the nephew of PW1,

who is referred to by PW1, as having direct knowledge of

certain aspects is not examined.

31. The trial Court has carefully discussed the two

versions canvassed. The questions which we posed as

troubling, most of them, was present in its mind. The

High Court has also referred to the defence evidence

including DW6 and DW8.

32. The trial Court, however, finds solace in

rejecting the defence version on the score that it cannot

be squared with the deceased visiting the home of PW3 on

16-02-2001, and it takes the view that she would have

been the last person for her to visit. It is also found

that the deceased did not go on being called by PW3. The

trial Court had the advantage of watching the demeanor of

the witnesses. We cannot hold that the view taken by the

trial Court as affirmed by the High Court is not

warranted as such by the materials on record. We cannot

possibly hold that the view taken by the courts is

35

manifestly perverse or that it is based on no evidence.

Even if we are persuaded to take a different view as

canvassed by the appellant we would not be justified in

interfering. See the observations in Mst. Dalbir Kaur's

case (supra).

33. The upshot of the above discussion is that we

are not persuaded to interfere. The appeal shall stand

dismissed.

…………………………….J.

   (Ranjan Gogoi)

…………………………….J.

   (Navin Sinha)

……………………………J.

    (K.M. Joseph)

New Delhi;

September  26, 2018