Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 915-916 OF 2008

Kashmir Kaur & Anr. …Appellants

VERSUS

State of Punjab …

Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.The appellants are aggrieved of the judgment of

the Single Judge of the High Court of Punjab and

Haryana dated 06.04.2005. At the very outset it is

relevant to mention that the second appellant,

namely, Lakha Singh also known as Lakhiwinder

Singh s/o Gian Singh stated to have died on

03.12.2005 as per the death certificate enclosed

along with the special leave petition papers and the

application filed on 25.07.2006 in this Court.

Criminal Appeal No(s).915-916 of 2008 1 of 26

Page 2 Therefore, the special leave petition itself, which

was stated to have been filed on 25.07.2006 on

behalf of Lakha Singh alias Lakhiwinder Singh, has

become infructuous. However, in the criminal

miscellaneous petition for substitution application,

also filed on 25.07.2006, the first appellant has

made a prayer to substitute her as the legal

representative of the deceased Lakha Singh and

pursue his appeal as well in order to enable her to

get the monitory benefits from the employer of the

deceased Lakha Singh who was stated to have

been employed in the Punjab State Electricity

Board. In the above-stated background we heard

learned counsel for the appellant as well as counsel

for the State in these appeals.

2.The brief facts which are required to be stated are

that the deceased Darshana alias Darshan Kaur d/o

Joginder Singh - PW.2 was married to one Ravail

Criminal Appeal No(s).915-916 of 2008 2 of 26

Page 3 Singh about 11 months prior to the date of

occurrence. According to PW.2 at the time of

marriage he gave sufficient dowry but Jagir Kaur,

the mother-in-law of the deceased, and the

accused were not satisfied with the amount of

dowry given in marriage. According to the

prosecution, there was a demand for cash amount

of Rs.30,000/- apart from a stereo set and scooter

by way of dowry which the deceased Darshana was

compelled to ask and get from her parental house.

3.Three days prior to the occurrence, the deceased

was stated to have gone to her parental house,

met PW.2 and requested him to arrange for the

cash amount of Rs.30,000/- in order to fulfill the

demand, when she stated to have also told PW.2

that she was being repeatedly tortured at the

instance of the accused in her matrimonial home.

PW.2 stated to have promised his daughter that he

Criminal Appeal No(s).915-916 of 2008 3 of 26

Page 4 would arrange for the money in three to four days

time after harvesting the crops and that she can

return back to her matrimonial home.

4.On 03.11.1987, PW.3 Jagir Singh stated to have

witnessed the torture meted out to the deceased

Darshana at the hands of the accused in the

morning and in the evening he came to know about

the death of the deceased whose body was lying in

the Civil Hospital at Taran Taran. PW.3 stated to

have met Joginder Singh (PW.2) at his village called

Nandpur and informed him about the torture meted

out to his daughter in the morning and the

subsequent death in the evening. Thereafter, PW.2

went to the hospital along with PW.3 and after

identifying the body of his daughter he lodged a

complaint with the Police Station Jhabal which came

to be registered as FIR No.246/87 Exhibit PE/2 for

Criminal Appeal No(s).915-916 of 2008 4 of 26

Page 5 offences under Section 304B read with 34 IPC as

well as under Section 498A IPC.

5.The complaint was registered as against the

appellant, her husband Lakha Singh s/o of Gian

Singh as well as Jagir Kaur alias Jagire, mother-in-

law of the deceased, who in the meantime passed

away. PW.1 was the doctor who conducted the

postmortem issued Exhibit ‘PA’ the postmortem

certificate under Exhibit PA/1 PW.1 stated to have

prepared a pictorial diagram showing the seat of

injuries. He also stated that stomach and its

contents along with a portion of small intestine with

its contents, a portion of large intestine with its

contents, a portion of liver, spleen and kidney were

handed over to police along with letter dated

04.11.1987 addressed to Chemical Examiner,

Patiala in five Jars sealed with the seal bearing

Criminal Appeal No(s).915-916 of 2008 5 of 26

Page 6 impression ‘KS’ for its report. The Chemical Examiner

Reports were marked as Exhibit ‘PF’ to Exhibit ‘PG’.

6.PW.5, the Sub-Inspector of Police stated to have

recovered a letter from the brassier of the

deceased which was marked as Exhibit ‘PH’. There

were other letters produced by PW.2 said to have

been written by the deceased addressed to him

which were marked as Exhibit ‘PH’ to ‘PK’.

7.The trial Court after detailed consideration of the

evidence placed before it, both oral as well as

documentary, found the appellant as well as her

husband Lakha Singh guilty of the offences falling

under Section 304B read along with 34 IPC as well

as under Section 498A IPC. The trial Court after

reaching the said finding convicted them for the

abovesaid offences and imposed the sentence of

seven years rigorous imprisonment each for the

Criminal Appeal No(s).915-916 of 2008 6 of 26

Page 7 offence under Section 304B IPC and two years

rigorous imprisonment for the offence under Section

498A IPC apart from a fine of Rs.1000/- each and in

default to undergo further rigorous imprisonment

for three months. The sentences were directed to

run concurrently.

8.On the appeal preferred by the appellant as well as

her husband having been rejected and the

conviction and sentence having been confirmed, the

present appeals have been preferred before us.

9.We heard Mr. R.K. Kapoor, learned counsel for the

appellant and Mr. Kuldip Singh, learned counsel for

the respondent-State. We also perused the

judgment of the trial Court, as well as, the High

Court and the material records placed before us.

Before dealing with the facts involved in these

appeals, we feel it appropriate to state the

Criminal Appeal No(s).915-916 of 2008 7 of 26

Page 8 requirement of law in regard to offences falling

under Sections 304B and 498A of IPC while

convicting the accused for the said offences. In this

respect, it will be worthwhile to deal with some of

the earlier decisions of this Court where the legal

principles in regard to the abovesaid provisions

have been dealt with and the principles of law laid

down therein. As we are concerned with Sections

304B and 498A IPC, the said provisions along with

Section 113B of the Evidence Act are relevant. The

same are extracted hereinunder:

“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

Criminal Appeal No(s).915-916 of 2008 8 of 26

Page 9 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-

(a)any willful conduct which is of such a

nature as is likely to derive 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.

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

Criminal Appeal No(s).915-916 of 2008 9 of 26

Page 10 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 304B of the Indian Penal

Code (45 of 1860).”

10.As regards the principles concerning the above

referred to provisions we wish to refer to the

decisions reported in K. Prema S. Rao and another

V. Yadla Srinivasa Rao and others - (2003) 1 SCC

217, Kaliyaperumal and another V. State of Tamil

Nadu – (2004) 9 SCC 157, Devilal V. State of

Rajasthan – (2007) 14 SCC 176, and Ashok Kumar

V. State of Haryana – (2010) 12 SCC 350.

11.In K. Prema S. Rao (supra) it has been held as

under in paragraph 16:

“……To attract the provisions of Section 304-B

IPC, one of the main ingredients of the offence

which is required to be established is that

“soon before her death” she was subjected to

Criminal Appeal No(s).915-916 of 2008 10 of 26

Page 11 cruelty and harassment “in connection with the

demand for dowry”.”……

12.In Kaliyaperumal (supra) paragraph 5 is relevant

for our purpose which reads as under:

5. A conjoint reading of Section 113-B of the

Evidence Act and Section 304-B IPC shows that

there must be material to show that soon

before her death the victim was subjected to

cruelty or harassment. The prosecution has to

rule out the possibility of a natural or

accidental death so as to bring it within the

purview of the “death occurring otherwise than

in normal circumstances”. The expression

“soon before” is very relevant where Section

113-B of the Evidence Act and Section 304-B

IPC are pressed into service. The prosecution

is obliged to show that soon before the

occurrence there was cruelty or harassment

and only in that case presumption operates.

Evidence in that regard has to be led in by the

prosecution. “Soon before” is a relative term

and it would depend upon the circumstances of

each case and no straitjacket formula can be

laid down as to what would constitute a period

of soon before the occurrence. It would be

hazardous to indicate any fixed period, and

that brings in the importance of a proximity

test both for the proof of an offence of dowry

death as well as for raising a presumption

under Section 113-B of the Evidence Act. The

expression “soon before her death” used in

the substantive Section 304-B IPC and Section

Criminal Appeal No(s).915-916 of 2008 11 of 26

Page 12 113-B of the Evidence Act is present with the

idea of proximity test. No definite period has

been indicated and the expression “soon

before” is not defined. A reference to the

expression “soon before” used in Section 114

Illustration (a) of the Evidence Act is relevant.

It lays down that a court may presume that a

man who is in the possession of goods soon

after the theft, is either the thief who has

received the goods knowing them to be stolen,

unless he can account for his possession. The

determination of the period which can come

within the term “soon before” is left to be

determined by the courts, depending upon

facts and circumstances of each case. Suffice,

however, to indicate that the expression “soon

before” would normally imply that the interval

should not be much between the cruelty or

harassment concerned and the death in

question. There must be existence of a

proximate and life link between the effect of

cruelty based on dowry demand and the death

concerned. If the alleged incident of cruelty is

remote in time and has become stale enough

not to disturb the mental equilibrium of the

woman concerned, it would be of no

consequence.”

13.In Devilal (supra) the ingredients of the provisions

of Section 304B as laid down in Harjit Singh V.

State of Punjab – (2006) 1 SCC 463 and Ram

Badan Sharma V. State of Bihar – (2006) 10 SCC

Criminal Appeal No(s).915-916 of 2008 12 of 26

Page 13 115 have been clearly set out in paragraph 20

which reads as under:

“The question, as to what are the ingredients

of the provisions of Section 304-B of the Penal

Code is no longer res integra. They are: (1)

that the death of the woman was caused by

any burns or bodily injury or in some

circumstances which were not normal; (2) such

death occurs within 7 years from the date of

her marriage; (3) that the victim was subjected

to cruelty or harassment by her husband or

any relative of her husband; (4) such cruelty or

harassment should be for or in connection with

the demand of dowry; and (5) it is established

that such cruelty and harassment was made

soon before her death. (See Harjit Singh v.

State of Punjab and Ram Badan Sharma v.

State of Bihar).”

14.In Ashok Kumar , to which one of us was a party

(Hon’ble Dr. Justice B.S. Chauhan), paragraphs 19,

20, 21 and 23 are relevant for our purpose which

read as under:

“19. We have already referred to the

provisions of Section 304-B of the Code and

the most significant expression used in the

section is “soon before her death”. In our view,

the expression “soon before her death” cannot

be given a restricted or a narrower meaning.

Criminal Appeal No(s).915-916 of 2008 13 of 26

Page 14 They must be understood in their plain

language and with reference to their meaning

in common parlance. These are the provisions

relating to human behaviour and, therefore,

cannot be given such a narrower meaning,

which would defeat the very purpose of the

provisions of the Act. Of course, these are

penal provisions and must receive strict

construction. But, even the rule of strict

construction requires that the provisions have

to be read in conjunction with other relevant

provisions and scheme of the Act. Further, the

interpretation given should be one which

would avoid absurd results on the one hand

and would further the object and cause of the

law so enacted on the other.

20. We are of the considered view that the

concept of reasonable time is the best criteria

to be applied for appreciation and examination

of such cases. This Court in Tarsem Singh v.

State of Punjab, held that the legislative object

in providing such a radius of time by employing

the words “soon before her death” is to

emphasise the idea that her death should, in

all probabilities, has been the aftermath of

such cruelty or harassment. In other words,

there should be a reasonable, if not direct,

nexus between her death and the dowry-

related cruelty or harassment inflicted on her.

21. Similar view was expressed by this Court in

Yashoda v. State of M.P., where this Court

stated that determination of the period would

depend on the facts and circumstances of a

Criminal Appeal No(s).915-916 of 2008 14 of 26

Page 15 given case. However, the expression would

normally imply that there has to be reasonable

time gap between the cruelty inflicted and the

death in question. If this is so, the legislature

in its wisdom would have specified any period

which would attract the provisions of this

section. However, there must be existence of

proximate link between the acts of cruelty

along with the demand of dowry and the death

of the victim. For want of any specific period,

the concept of reasonable period would be

applicable. Thus, the cruelty, harassment and

demand of dowry should not be so ancient,

whereafter, the couple and the family members

have lived happily and that it would result in

abuse of the said protection. Such demand or

harassment may not strictly and squarely fall

within the scope of these provisions unless

definite evidence was led to show to the

contrary. These matters, of course, will have to

be examined on the facts and circumstances of

a given case.

23. The Court cannot ignore one of the

cardinal principles of criminal jurisprudence that

a suspect in the Indian law is entitled to the

protection of Article 20 of the Constitution of

India as well as has a presumption of

innocence in his favour. In other words, the

rule of law requires a person to be innocent till

proved guilty. The concept of deeming fiction is

hardly applicable to the criminal jurisprudence.

In contradistinction to this aspect, the

legislature has applied the concept of deeming

fiction to the provisions of Section 304-B.

Criminal Appeal No(s).915-916 of 2008 15 of 26

Page 16 Where other ingredients of Section 304-B are

satisfied, in that event, the husband or all

relatives shall be deemed to have caused her

death. In other words, the offence shall be

deemed to have been committed by fiction of

law. Once the prosecution proves its case with

regard to the basic ingredients of Section 304-

B, the Court will presume by deemed fiction of

law that the husband or the relatives

complained of, has caused her death. Such a

presumption can be drawn by the Court

keeping in view the evidence produced by the

prosecution in support of the substantive

charge under Section 304-B of the Code.

15.The decision in Ashok Kumar (supra) was

subsequently followed in Pathan Hussain Basha V.

State of A.P. - JT 2012 (7) SC 432, to which again

one of us was a party (Hon’ble Mr. Justice Fakkir

Mohamed Ibrahim Kalifulla).

16.From the above decisions the following principles

can be culled out:

(a)To attract the provisions of Section 304B IPC

the main ingredient of the offence to be

established is that soon before the death of

the deceased she was subjected to cruelty

Criminal Appeal No(s).915-916 of 2008 16 of 26

Page 17 and harassment in connection with the

demand of dowry.

(b)The death of the deceased woman was

caused by any burn or bodily injury or some

other circumstance which was not normal.

(c)Such death occurs within seven years from

the date of her marriage.

(d)That the victim was subjected to cruelty or

harassment by her husband or any relative

of her husband.

(e)Such cruelty or harassment should be for or

in connection with demand of dowry.

(f)It should be established that such cruelty

and harassment was made soon before her

death.

(g)The expression (soon before) is a relative

term and it would depend upon

circumstances of each case and no

straightjacket formula can be laid down as to

what would constitute a period of soon

before the occurrence.

(h)It would be hazardous to indicate any fixed

period and that brings in the importance of a

proximity test both for the proof of an

offence of dowry death as well as for raising

a presumption under Section 113B of the

Evidence Act.

(i)Therefore, the expression “soon before”

would normally imply that the interval should

not be much between the concerned cruelty

or harassment and the death in question.

Criminal Appeal No(s).915-916 of 2008 17 of 26

Page 18 There must be existence of a proximate or

life link between the effect of cruelty based

on dowry demand and the concerned death.

In other words, it should not be remote in

point of time and thereby make it a stale

one.

(j)However, the expression “soon before”

should not be given a narrow meaning which

would otherwise defeat the very purpose of

the provisions of the Act and should not lead

to absurd results.

(k)Section 304B is an exception to the cardinal

principles of criminal jurisprudence that a

suspect in the Indian Law is entitled to the

protection of Article 20 of the Constitution,

as well as, a presumption of innocence in his

favour. The concept of deeming fiction is

hardly applicable to criminal jurisprudence

but in contradistinction to this aspect of

criminal law, the legislature applied the

concept of deeming fiction to the provisions

of Section 304B.

(l)Such deeming fiction resulting in a

presumption is, however, a rebuttable

presumption and the husband and his

relatives, can, by leading their defence prove

that the ingredients of Section 304B were

not satisfied.

(m)The specific significance to be attached is to

the time of the alleged cruelty and

harassment to which the victim was

subjected to, the time of her death and

whether the alleged demand of dowry was

Criminal Appeal No(s).915-916 of 2008 18 of 26

Page 19 in connection with the marriage. Once the

said ingredients were satisfied it will be

called dowry death and by deemed fiction of

law the husband or the relatives will be

deemed to have committed that offence.

17.Keeping the above principles in mind, when we

examine the case on hand, we find the following

uncontroverted facts:

(i)The death of the deceased occurred 11 months

after her marriage thereby the main condition

prescribed under Section 304B, namely, within

seven years of the marriage was fulfilled.

(ii)The death of the deceased was not normal

as evidenced by the version of PW.1

postmortem doctor, the postmortem

certificate and also Exhibit ‘PG’, the report of

Chemical Examiner.

(iii)The evidence of PWs.2 and 3 read along

with Exhibit ‘PH’ to ‘PK’ disclose that there

was a demand for payment of cash of

Rs.30,000/- apart from a stereo set and a

scooter.

(iv)According to PW.2, father of the deceased 3

to 4 days prior to the unfortunate death of

the deceased his daughter came to his

house and expressed her dire need for

payment of Rs.30,000/- as demanded by her

in-laws and that she was being harassed on

that score.

Criminal Appeal No(s).915-916 of 2008 19 of 26

Page 20 (v) The evidence of PW.3 was to the effect that

on the date of the death of the deceased,

namely, 03.11.1987 he happened to witness

the torture meted out to the deceased at

the hands of her in-laws.

(vi)Though on behalf of the appellant and other

accused certain witnesses were examined

by way of defence, both the trial Court as

well as the Appellate Court have noted that

nothing concrete was brought out to show

that the evidence led on the side by the

prosecution through PWs.1 to 3 were in any

way contradicted.

18.On behalf of the appellant, it was contended that

Exhibit ‘PK’ which was stated to have been

recovered by PW.5, Sub-Inspector of Police, from

the brassier of the deceased was not proved to the

satisfaction of the Court. For the sake of argument

even if such a contention can be accepted and the

said Exhibit ‘PK’ is eschewed from consideration

there were other exhibits such as Exhibits ‘PH’ to

‘PK’ which were all letters written by the deceased

addressed to PW.2 her father which were written

prior to her death and were sent by post. It is not

Criminal Appeal No(s).915-916 of 2008 20 of 26

Page 21 in dispute and as noted by the trial Court, those

exhibits bore the postal stamp impressions with

relevant dates mentioned therein. Though DW.3 a

document expert was examined to show that there

was a variation in the hand-writing of the deceased

as between the admitted one and those found in

Exhibits ‘PH’, ‘PK’ and ‘PJ’, he himself admitted in the

cross-examination that some variation in the hand-

writing can occur with the passage of time after the

learning stage and also at the old age or due to

clinical or any disease or accident which affect the

muscular control of the person while writing a letter.

To yet another question, he also admitted that it

was correct that the portion of the disputed

signatures ‘Q1’ to ‘Q3’ which may read as Darshana

is similar to the corresponding words of standard

signature ‘A1’. Therefore, it will be highly unsafe to

rely upon the evidence of DW.3 in order to exclude

Criminal Appeal No(s).915-916 of 2008 21 of 26

Page 22 the letters said to have been written by the

deceased to her father.

19.The trial Court having examined Exhibits ‘PH’ to ‘PJ’

found that the alleged harassment at the hands of

the in-laws of the deceased immediately before her

death was true. Before us nothing was pointed out

to hold that the said conclusion was perverse or

was there any illegality or irregularity. The evidence

of PW.1 doctor, who conducted the postmortem,

has stated in his evidence that as per his report

Exhibit ‘PA’ the following antemortem injuries and

other abnormalities were found on the body of the

deceased:

“Six abrasions varying from 0.5 cm to 1 cm

were present on the left side of the cheek, 2

cm away from the angle of the mouth. Larynx

and trachea showed congestion and blood

stained froth was present. Right and left lungs

were congested and frothy material was

coming out of lung after squeezing. Blood from

the heart was sent for chemical examination.

Criminal Appeal No(s).915-916 of 2008 22 of 26

Page 23 Mouth pharynx and essofigus did not show any

abnormality. But blood stained froth was

present. Stomach and its contents were sent

to the C/Examiner for the Chemical

Examination”

20.In the cross-examination, PW.3 stated that the

mouth of the deceased girl was swollen and there

were other injuries on other parts of her body.

Along with Exhibit ‘PF’ the Chemical Examiner

covering letter Exhibit ‘PG’ made it clear that

although no poison was found in the viscera, there

were causes or reasons for non-detection of poison

such as the poison having been excreted from the

body, detoxicated, matabolised by the system or

the poison being such as test for the same do not

exist in view of countless number of poisons. He

also opined “the circumstantial evidence goes a

long way to prove the facts of the case regardless

of the report indicating that the no poison was

found”. “From postmortem findings and police

Criminal Appeal No(s).915-916 of 2008 23 of 26

Page 24 history it appears that death has occurred due to

some poison”.

21.In Exhibits ‘PH’ and ‘PJ’ it was clearly mentioned

that the deceased was harassed from last night,

namely, 02.11.1987 and her miserable condition

was created at the instance of her mother-in-law,

wife of her husband’s brother, the appellant herein

and the brother himself, namely, second accused,

who is no more. In Exhibit ‘PJ’ she while referring to

such harassment meted out to her by her mother-

in-law, brother-in-law and his wife also mentioned

about the demands made by them, namely, cash,

scooter and other articles.

22.All the above factors clearly established the legal

requirements for an offence falling under Sections

304B and 498A IPC with the aid of Section 113B

were conclusively proved and the conviction and

Criminal Appeal No(s).915-916 of 2008 24 of 26

Page 25 sentence imposed, therefore, do not call for

interference.

23.The appellant Kashmir Kaur is on bail. The bail bond

stands cancelled and she shall be taken into custody

forthwith to serve out the remaining part of sentence, if

any. The appeal so far as appellant No.1 is concerned

stands dismissed.

24.The appeal so far as appellant No.2 i.e. accused

Lakha Singh @ Lakhiwinder Singh is concerned, as held

by us in the opening part of this judgment stands

dismissed as having become infructuous even at the

time it came to be filed. Accordingly, the application for

substitution also stands dismissed.

…..……….……………………………..J.

[Dr.B.S. Chauhan]

Criminal Appeal No(s).915-916 of 2008 25 of 26

Page 26 …………….………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi;

December 12, 2012

Criminal Appeal No(s).915-916 of 2008 26 of 26