Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1592 OF 2011

SHER SINGH @ PARTAPA …..APPELLANT

Versus

STATE OF HARYANA …..RESPONDENT

J U D G M E N T

VIKRAMAJIT SEN, J.

1 This Appeal has been filed against the Judgment dated 16.12.2010

passed by the learned Single Judge of the High Court of Punjab and Haryana

dismissing the appeal and affirming the conviction and sentence passed

against the Appellant by the Trial Court under Sections 304B and 498A of

the Indian Penal Code. The marriage between the deceased, Harjinder Kaur

and the accused-Appellant took place on 22.2.1997. The case of the

prosecution is that two months prior to her death on one of her visits to her

parental home, the deceased informed her two brothers of cruelty connected

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Page 2 with dowry demands meted out to her by her husband and his family

members. They, thereafter, conveyed this information to their uncle-

Complainant, Angrej Singh viz. that the accused and his family have been

harassing her with a demand for a motorcycle and a fridge. The

Complainant advised her to return to her matrimonial house with the

assurance that a motorcycle and a fridge would be arranged upon the

marriage of her brothers. On 7.2.1998, one Rajwant Singh informed the

Complainant that the deceased had committed suicide by consuming some

poisonous substance at her matrimonial house in village Danoli. The

Complainant, along with the brothers of the deceased and other members of

the village, rushed to the matrimonial house of the deceased and after

confirming her death, lodged an FIR on the next day i.e., on 8.2.1998.

2 In all, four accused persons, namely, Appellant/Sher Singh (husband),

Devinder Singh (brother-in-law), Jarnail Singh (father-in-law), and

Sukhvinder Kaur (mother-in-law) were tried by the learned Sessions Judge,

Karnal under Sections 304B and 498A IPC. After considering the material

on record the learned Sessions Judge had convicted all the accused and

sentenced them to undergo rigorous imprisonment for seven years under

Section 304B; and to undergo rigorous imprisonment for three years and to

pay a fine of Rs.5,000/- and, in default of payment of such fine, to further

2

Page 3 undergo rigorous imprisonment for a period of six months under Section

498A.

3 Two separate appeals were filed before the High Court of Punjab and

Haryana at Chandigarh, one by Devinder Singh (brother-in-law) along with

Jarnail Singh (father-in-law) and another by the Appellant herein. The High

Court allowed the appeal filed by Devinder Singh and Jarnail Singh and

acquitted them with an observation that the prosecution has failed to prove

any torture committed by them and, therefore, Sections 304B and 498A IPC

were not attracted. Quite palpably, unlike the Trial Court, the High Court

construed even Section 304B requires the prosecution to ‘prove’ beyond

reasonable doubt in contradistinction to ‘show’ the participative role of the

husband’s relatives as a prelude to the deemed guilt kicking in. It was also

observed by the High Court that in such cases there is a tendency of roping

in all the family members disregarding the fact that they resided separately.

However, the Appeal filed by the Appellant was dismissed holding that it

was for the accused/Appellant to explain that the unnatural death of his wife

Harjinder Kaur was not due to cruelty meted out to her in the matrimonial

home and that he has failed in doing so.

3

Page 4 4 Learned Counsel appearing on behalf of the Appellant has submitted

that the conviction of the Appellant is liable to be set aside as there is a

specific finding of the learned Sessions Court that there is no positive

evidence on record to the effect that the accused persons ever raised a

demand for a motorcycle and a fridge and that both the Courts below have

failed to fully appreciate the inconsistencies in the depositions of PWs 4 and

7, which could not be relied upon as both were interested witnesses. It is

further submitted that the High Court, on same set of pleadings and

evidence, was not justified in acquitting the other accused persons, namely,

Devinder Singh (brother-in-law) and Jarnail Singh (father-in-law), while

convicting the Appellant. In support of this argument, learned Counsel for

the Appellant has relied on the decision of this Court in Narayanamurthy v.

State of Karnataka (2008) 16 SCC 512. It is also contended that the

prosecution has not established that soon before her death, the deceased had

been subjected to any cruelty or harassment in connection with any demand

for dowry. Support has been drawn from Durga Prasad v. State of Madhya

Pradesh (2010) 9 SCC 73.

5 Out the outset we shall briefly analyse the cauldron of legislation

passed by Parliament on the subject which we are presently engaged with.

Confronted with the pestilential proliferation of incidents of married women

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Page 5 being put to death because of avaricious and insatiable dowry demands, and/

or of brides being driven to take their own lives because of cruelty meted out

to them by their husband and his family also because of dowry expectations,

Parliament enacted the Dowry Prohibition Act, 1961 (for short ‘the Dowry

Act’) in an endeavour to eradicate the social evil of giving and taking of

dowry. Section 2 thereof defines ‘dowry’ as including any property or

valuable security given or agreed to be given by one party to the other party

around the time of marriage. Section 3 makes it punishable to give or take

or abet the giving or taking of dowry; the punishment for the offence being

not less than five years, and with a fine of Rs.15,000/- or the amount of the

value of such dowry, whichever is more. Sub-section (2) thereof

understandably makes an exclusion in respect of presents given at the time

of marriage provided they are of a customary nature and the value thereof is

not excessive having regard to the financial status of the concerned parties.

This Section also mandates the drawing up of a list of presents received in

contemplation of marriage. Section 4 makes it punishable even to demand

dowry and if any agreement is entered into for the giving or taking of dowry,

Section 5 makes it void. Section 6 clarifies that where any dowry is

received by any person other than the woman in connection with whose

marriage it is given, it must be transferred to her within three months of

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Page 6 marriage or receipt of the dowry. The passing of this statute, however, did

not eradicate the scourge of dowry demands, resulting in Parliament

devoting its attention yet again to what was required to free society of this

pernicious practice.

6 As is evident from a perusal of the Statement of Objects and Reasons

to the Criminal Law (Second Amendment) Act, 1983 [Act 46 of 1983],

Parliament continued to be concerned with the increasing number of dowry

deaths. By this legislation Chapter XX A was introduced into the Indian

Penal Code (IPC) containing the solitary Section 498A, in order to “deal

effectively not only with cases of dowry deaths, but also cases of cruelty to

married women by their in-laws.” Conspicuously, this Section does not

employ the word ‘dowry’ at all. In essence, the amendment makes

matrimonial cruelty to the wife punishable with imprisonment for a term

which may extend to three years together with fine. The Explanation to

Section 498A defines ‘cruelty’ in Clause (a) to the Explanation to first mean

wilful conduct as is likely to drive the woman to commit suicide or to cause

grave injury or danger to her life. Since there is no allusion to dowry it

converts cruelty, which would ordinarily entitle the wife to seek a

dissolution of her marriage, into a criminal act. Parliament rightly restricted

the subject offence to only cruelty perpetuated on women since their

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Page 7 emancipation, in meaningful terms, largely remains a mirage. One can only

optimistically hope that the increasing literacy amongst females, as also

amendments in Hindu Law granting a daughter a share in her father’s estate,

will sooner than later put an end to this malaise. As we are not concerned in

this Appeal with events falling within the ambit of Clause (a) of the

Explanation, we shall desist from recording any further reflection on the

sweep and intent and possible incongruities contained therein as such an

exercise on our part would avoidably add to the bludgeoning burden of

obiter dicta, which invariably causes confusion. Secondly, broadly stated,

Clause (b) to the Explanation of Section 498A IPC, postulates harassment

meted out to the woman with a view to coercing her or her relatives to meet

any unlawful demand for any property or valuable security. Although this

Clause does not employ the word ‘dowry’, it is apparent that its object is to

combat this odious societal excrescence. Act 46 of 1983 simultaneously

incorporated changes in Section 174(3) of the Cr.P.C. pertaining to the

suicide or death of a woman within seven years of her marriage; it mandated

the examination by the nearest Civil Surgeon of the body of the unfortunate

woman. In addition thereto, Section 113A was introduced into the Indian

Evidence Act, 1872. [Although not relevant to the present context, it is

poignant that even though Section 113 was under its active scrutiny,

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Page 8 Parliament did not think it necessary to excise the existing and entirely

irrelevant Section 113 which speaks of the cession of ‘British’ territory to

any ‘Native State’]. Section 113A, introduced into the Evidence Act by

Clause 7 of Act 46 of 1983, specifies that when the question is whether the

commission of suicide by a woman had been abetted by her husband or his

relative and it is shown that she has committed suicide within a period of

seven years from the date of her marriage and that her husband or such

relative of her husband had subjected her to cruelty, the Court may presume,

having regard to all the other circumstances of the case, that such suicide

had been abetted by her husband or by relatives of her husband.

7 Within the short span of three years Parliament realized the necessity

to make the law more stringent and effective by introducing amendments to

the Dowry Act, as well as the IPC by enacting Act 43 of 1986. These

amendments, inter alia, made the offences dealt with in the Dowry Act

cognizable for certain purposes and also made them non-bailable as well as

non-compoundable. By the introduction of Section 8A of the Dowry Act

the burden of proof was reversed in respect of prosecutions for taking or

abetting the taking or demanding of any dowry by making the concerned

person responsible for proving that he had not committed any such offence.

Contemporaneously Section 304B was inserted into the IPC. The newly

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Page 9 added Section stipulates that 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. Sub-section (2) makes this offence punishable

with imprisonment for a term which shall not be less than seven years and

which may extend to imprisonment for life. Section 113B was further

incorporated into the Evidence Act; [yet again ignoring the futility, if not

ignominy, of retaining the withered appendage in the form of the existing

Section 113, and further perpetuating an anachronism.] Be that as may be,

the newly introduced Section 113B states that when the question is whether

a person has committed the death of a married woman and it is shown that

soon before her death such woman had been subjected by such person to

cruelty or harassment or in connection with any demand for dowry, the

Court shall presume that such person has caused dowry death. The

Explanation harks back to the simultaneously added Section 304B of the

IPC for the definition of dowry death, clarifying thereby that the person

alluded to in this Section is her husband or any relative of her husband. It is

9

Page 10 noteworthy that whilst Section 113A of the Evidence Act reposes discretion

in the Court to draw a presumption so far as the husband’s abetment in his

wife’s suicide, Parliament has mandated the Court to draw at least an

adverse inference under Section 113B in the event of a dowry death. It

seems to us that where a wife is driven to the extreme step of suicide it

would be reasonable to assume an active role of her husband, rather than

leaving it to the discretion of the Court.

8 The legal regime pertaining to the death of a woman within seven

years of her marriage thus has numerous features, inter alia:

(i)the meaning of “dowry” is as placed in Section 2 of the Dowry

Prohibition Act.

(ii)dowry death stands defined for all purposes in Section 304B of

the IPC. It does exclude death in normal circumstances.

(iii) If death is a result of burns or bodily injury, or otherwise than

under normal circumstances, and it occurs within seven years of

the marriage and, it is ‘shown’ in contradistinction to ‘proved’

that soon before her death she was subjected to cruelty or

harassment by her husband or his relatives, and the cruelty or

harassment is connected with a demand of dowry, it shall be a

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Page 11 dowry death, and the husband or relative shall be deemed to

have caused her death.

(iv)To borrow from Preventive Detention jurisprudence – there

must be a live link between the cruelty emanating from a dowry

demand and the death of a young married woman, as is sought

to be indicated by the words “soon before her death”, to bring

Section 304B into operation; the live link will obviously be

broken if the said cruelty does not persist in proximity to the

untimely and abnormal death. It cannot be confined in terms

of time; the query of this Court in the context of condonation of

delay in filing an appeal – why not minutes and second –

remains apposite.

(v)the deceased woman’s body has to be forwarded for

examination by the nearest Civil Surgeon.

(vi) once the elements itemised in (iii) above are shown to exist the

husband or relative shall be deemed to have caused her death.

(vii) the consequences and ramifications of this ‘deeming’ will be

that the prosecution does not have to prove anything more, and

it is on the husband or his concerned relative that the burden of

proof shifts as adumbrated in Section 113B, which finds place

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Page 12 in Chapter VII of the Evidence Act. This Chapter first covers

‘burden of proof’ and then “presumption”, both being constant

bed-fellows. In the present context the deeming or

presumption of responsibility of death are synonymous.

9 Death can be accidental, suicidal or homicidal. The first type is a

tragedy and no criminal complexion is conjured up, unless statutorily so

devised, as in Section 304A; but even there the culpable act is that of the

person actually causing the death. It seems to us that Section 304B of the

IPC, inasmuch as it also takes within its contemplation “the death of a

woman ….. otherwise than under normal circumstances”, endeavours to

cover murders masquerading as accidents. Justifiably, the suicidal death of

a married woman who was meted out with cruelty by her husband, where

her demise occurred within seven years of marriage in connection with a

dowry demand should lead to prosecution and punishment under Sections

304B and/or 306 of the IPC. However, if the perfidious harassment and

cruelty by the husband is conclusively proved by him to have had no causal

connection with his cruel behaviour based on a dowry demand, these

provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007)

11 SCC 205, although some reservation may remain regarding the reach of

Section 306.

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Page 13

10It is already empirically evident that the prosecution, ubiquitously and

in dereliction of duty, in the case of an abnormal death if a young bride

confines its charges to Section 304B because the obligation to provide proof

becomes least burdensome for it; this is the significance that attaches to a

deeming provision. But, in any death other than in normal circumstances,

we see no justification for not citing either Section 302 or Section 306, as

the circumstances of the case call for. Otherwise, the death would logically

fall in the category of an accidental one. It is not sufficient to include only

Section 498A as the punishment is relatively light. Homicidal death is

chargeable and punishable under Sections 302 and 304B if circumstances

prevail triggering these provisions. This Court has repeatedly reiterated this

position, including in State of Punjab v. Iqbal Singh, 1991 (3) SCC 1 and

quite recently in Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7)

SCC 256.

11Some doubts remain on the aspect of presumption of innocence,

deemed culpability and burden of proof. One of our Learned Brothers has in

Pathan Hussain Basha v. State of Andhra Pradesh (2012) 8 SCC 594, after

extensively extracting from the previous judgment authored by him (but

without indicating so) expressed two opinions – (a) that Article 20 of the

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Page 14 Constitution of India contains a presumption of innocence in favour of a

suspect and, (b) that the concept of deeming fiction is hardly applicable to

criminal jurisprudence. The logical consequence of both these conclusions

would lead to the striking down of Section 8A of the Dowry Act, Section

113B of the Evidence Act, and possibly Section 304B of the IPC, but neither

decision does so. So far as the first conclusion is concerned, suffice it to

reproduce Article 20 of the Constitution:

20. Protection in respect of conviction for offences.-(1) No

person shall be convicted of any offence except for violation of

a law in force at the time of the commission of the act charged

as an offence, nor be subjected to a penalty greater than that

which might have been inflicted under the law in force at the

time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same

offence more than once.

(3) No person accused of any offence shall be compelled to be a

witness against himself.

Even though there may not be any Constitutional protection to the concept

of presumption of innocence, this is so deeply ingrained in all Common Law

legal systems so as to render it ineradicable even in India, such that the

departure or deviation from this presumption demands statutory sanction.

This is what the trilogy of dowry legislation has endeavoured to ordain.

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Page 15 12In our opinion, it is beyond cavil that where the same word is used in

a section and/or in sundry segments of a statute, it should be attributed the

same meaning, unless there are compelling reasons to do otherwise. The

obverse is where different words are employed in close proximity, or in the

same section, or in the same enactment, the assumption must be that the

legislature intended them to depict disparate situations, and delineate

dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not

have proposed to ordain that the prosecution should “prove” the existence of

a vital sequence of facts, despite having employed the word “shown” in

Section 304B. The question is whether these two words can be construed as

synonymous. It seems to us that if the prosecution is required to prove,

which always means beyond reasonable doubt, that a dowry death has been

committed, there is a risk that the purpose postulated in the provision may be

reduced to a cipher. This method of statutory interpretation has consistently

been disapproved and deprecated except in exceptional instances where the

syntax permits reading down or reading up of some words of the subject

provisions.

13In Section 113A of the Evidence Act Parliament has, in the case of a

wife’s suicide, “presumed” the guilt of the husband and the members of his

family. Significantly, in Section 113B which pointedly refers to dowry

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Page 16 deaths, Parliament has again employed the word “presume”. However, in

substantially similar circumstances, in the event of a wife’s unnatural death,

Parliament has in Section 304B “deemed” the guilt of the husband and the

members of his family. The Concise Oxford Dictionary defines the word

“presume” as: supposed to be true, take for granted; whereas “deem” as:

regard, consider; and whereas “show” as: point out and prove. The Black’s

Law Dictionary (5

th

Edition) defines the word “show” as- to make apparent

or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge,

believe, condemn, determine, construed as if true; “presume” as- to believe

or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of

law, statutory or judicial, by which finding of a basic fact gives rise to

existence of presumed fact, until presumption is rebutted.” The Concise

Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct

definition of burden of proof which is worthy of reproduction:

“Burden of Proof: The duty of a party to litigation to prove a

fact or facts in issue. Generally the burden of proof falls upon

the party who substantially asserts the truth of a particular fact

(the prosecution or the plaintiff). A distinction is drawn

between the persuasive (or legal) burden, which is carried by

the party who as a matter of law will lose the case if he fails to

prove the fact in issue; and the evidential burden (burden of

adducing evidence or burden of going forward), which is the

duty of showing that there is sufficient evidence to raise an

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Page 17 issue fit for the consideration of the trier of fact as to the

existence or non-existence of a fact in issue.

The normal rule is that a defendant is presumed to be

innocent until he is proved guilty; it is therefore the duty of the

prosecution to prove its case by establishing both the actus reus

of the crime and the mens rea. It must first satisfy the

evidential burden to show that its allegations have something to

support them. If it cannot satisfy this burden, the defence may

submit or the judge may direct that there is no case to answer,

and the judge must direct the jury to acquit. The prosecution

may sometimes rely on presumptions of fact to satisfy the

evidential burden of proof (e.g. the fact that a woman was

subjected to violence during sexual intercourse will normally

raise a presumption to support a charge of rape and prove that

she did not consent). If, however, the prosecution has

established a basis for its case, it must then continue to satisfy

the persuasive burden by proving its case beyond reasonable

doubt (see proof beyond reasonable doubt). It is the duty of the

judge to tell the jury clearly that the prosecution must prove its

case and that it must prove it beyond reasonable doubt; if he

does not give this clear direction, the defendant is entitled to be

acquitted.

There are some exceptions to the normal rule that the

burden of proof is upon the prosecution. The main exceptions

are as follows. (1) When the defendant admits the elements of

the crime (the actus reus and mens rea) but pleads a special

defence, the evidential burden is upon him to prove his defence.

This may occur, the example, in a prosecution for murder in

which the defendant raises a defence of self-defence. (2) When

the defendant pleads automatism, the evidential burden is upon

him. (3) When the defendant pleads insanity, both the evidential

and persuasive burden rest upon him. In this case, however, it

is sufficient if he proves his case on a balance of probabilities

(i.e. he must persuade the jury that it is more likely that he is

telling the truth than not). (4) In some cases statute expressly

places a persuasive burden on the defendant; for example, a

person who carries an offensive weapon in public is guilty of an

offence unless he proves that he had lawful authority or a

reasonable excuse for carrying it”.

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Page 18

14As is already noted above, Section 113B of the Evidence Act and

Section 304B of the IPC were introduced into their respective statutes

simultaneously and, therefore, it must ordinarily be assumed that Parliament

intentionally used the word ‘deemed’ in Section 304B to distinguish this

provision from the others. In actuality, however, it is well nigh impossible

to give a sensible and legally acceptable meaning to these provisions, unless

the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’

as freely interchangeable with the word ‘deemed’. In the realm of civil and

fiscal law, it is not difficult to import the ordinary meaning of the word

‘deem’ to denote a set of circumstances which call to be construed contrary

to what they actually are. In criminal legislation, however, it is unpalatable

to adopt this approach by rote. We have the high authority of the

Constitution Bench of this Court both in State of Travancore-Cochin v.

Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil

Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to

ascertain the purpose behind the statutory fiction brought about by the use of

the word ‘deemed’ so as to give full effect to the legislation and carry it to

its logical conclusion. We may add that it is generally posited that there are

rebuttable as well as irrebuttable presumptions, the latter oftentimes

assuming an artificiality as actuality by means of a deeming provision. It is

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Page 19 abhorrent to criminal jurisprudence to adjudicate a person guilty of an

offence even though he had neither intention to commit it nor active

participation in its commission. It is after deep cogitation that we consider

it imperative to construe the word ‘shown’ in Section 304B of the IPC as to,

in fact, connote ‘prove’. In other words, it is for the prosecution to prove

that a ‘dowry death’ has occurred, namely, (i) that the death of a woman has

been caused in abnormal circumstances by her having been burned or having

been bodily injured, (ii) within seven years of a marriage, (iii) and that she

was subjected to cruelty or harassment by her husband or any relative of her

husband, (iv) in connection with any demand for dowry and (v) that the

cruelty or harassment meted out to her continued to have a causal connection

or a live link with the demand of dowry. We are aware that the word ‘soon’

finds place in Section 304B; but we would prefer to interpret its use not in

terms of days or months or years, but as necessarily indicating that the

demand for dowry should not be stale or an aberration of the past, but should

be the continuing cause for the death under Section 304B or the suicide

under Section 306 of the IPC. Once the presence of these concomitants are

established or shown or proved by the prosecution, even by preponderance

of possibility, the initial presumption of innocence is replaced by an

assumption of guilt of the accused, thereupon transferring the heavy burden

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Page 20 of proof upon him and requiring him to produce evidence dislodging his

guilt, beyond reasonable doubt. It seems to us that what Parliament intended

by using the word ‘deemed’ was that only preponderance of evidence would

be insufficient to discharge the husband or his family members of their guilt.

This interpretation provides the accused a chance of proving their innocence.

This is also the postulation of Section 101 of the Evidence Act. The purpose

of Section 113B of the Evidence Act and Section 304B of the IPC, in our

opinion, is to counter what is commonly encountered – the lack or the

absence of evidence in the case of suicide or death of a woman within seven

years of marriage. If the word “shown” has to be given its ordinary

meaning then it would only require the prosecution to merely present its

evidence in Court, not necessarily through oral deposition, and thereupon

make the accused lead detailed evidence to be followed by that of the

prosecution. This procedure is unknown to Common Law systems, and

beyond the contemplation of the Cr.P.C.

15The width and amplitude of a provision deeming the guilt of a person

in a legal system founded on a Constitution needs to be briefly reflected on.

The Constitution is the grundnorm on which the legal framework has to be

erected and its plinth cannot be weakened for fear of the entire structure

falling to the ground. If the Constitution expressly affirms or prohibits

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Page 21 particular state of affairs, all statutory provisions which are incongruent

thereto must be held as ultra vires and, therefore, must not be adhered to.

We have already noted that Article 20 of our Constitution while not

affirming the presumption of innocence does not prohibit it, thereby, leaving

it to Parliament to ignore it whenever found by it to be necessary or

expedient. A percutaneous scrutiny reveals that some legal principles such

as presumption of innocence can be found across a much wider legal system,

ubiquitously in the Common Law system, and restrictively in the Civil Law

system. It seems to us that the presumption of innocence is one such legal

principle which strides the legal framework of several countries owing

allegiance to the Common Law; even International Law bestows its

imprimatur thereto. Article 11.1 of the Universal Declaration of Human

Rights, 1948 states – “Everyone charged with a penal offence has the right

to be presumed innocent until proved guilty according to law in a public trial

at which he has had all the guarantees necessary for his defence.” Article

14(3)(g) of the International Covenant on Civil and Political Rights, 1966,

assures as a minimum guarantee that everyone has a right not to be

compelled to testify against himself or to confess guilt. Article 6 of the

European Convention for the Protection of Human Rights and Fundamental

Freedoms, firstly, promises the right to a fair trial and secondly, assures that

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Page 22 anyone charged with a criminal offence shall be presumed innocent until

proved guilty according to law. We may immediately emphasise that the

tenet of presumed innocence will always give way to explicit legislation to

the contrary. The presumption of innocence has also been recognised in

certain circumstances to constitute a basic human right. Parliament,

however, has been tasked with the responsibility of locating myriad

competing, if not conflicting, societal interests. It is quite apparent that

troubled by the exponential increase in the incidents of bride burning,

Parliament thought it prudent, expedient and imperative to shift the burden

of proof in contradistinction to the onus of proof on to the husband and his

relatives in the cases where it has been shown that a dowry death has

occurred. The inroad into or dilution of the presumption of innocence of an

accused has, even de hors statutory sanction, been recognised by Courts in

those cases where death occurs in a home where only the other spouse is

present; as also where an individual is last seen with the deceased. The

deeming provision in Section 304B is, therefore, neither a novelty in nor an

anathema to our criminal law jurisprudence.[See Mir Mohammad Omar and

Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.

16It has already been pointed out that both in Pathan Hussain Basha as

well as in Ashok Kumar v. State of Haryana 2010 (12) SCC 350, authored

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Page 23 by our same learned Brother, the use of word “shown” in Section 304B has

palpably not been given due weightage inasmuch as it has been freely

substituted by the word “proved”. To the contrary in Nallam Veera

Stayanandam v. Public Prosecutor 2004 (10) SCC 769, it has been opined

that “it is for the defence in this case to satisfy the Court that irrespective of

the prosecution case in regard to dowry demand and harassment, the death of

the deceased has not occurred because of that and that the same resulted

from a cause totally alien to such dowry demand or harassment.”

17 Keeping in perspective that Parliament has employed the amorphous

pronoun/noun “it” (which we think should be construed as an allusion to the

prosecution), followed by the word “shown” in Section 304B, the proper

manner of interpreting the Section is that “shown” has to be read up to mean

“prove” and the word “deemed” has to be read down to mean “presumed”.

Neither life nor liberty can be emasculated without providing the individual

an opportunity to disclose extenuating or exonerating circumstances. It was

for this reason that this Court struck down the mandatory death sentence in

Section 303 IPC in its stellar decision in Mithu vs. State of Punjab, AIR

1983 SC 473. Therefore, the burden of proof weighs on the husband to

prove his innocence by dislodging his deemed culpability, and that this has

to be preceded only by the prosecution proving the presence of three factors,

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Page 24 viz. (i) the death of a woman in abnormal circumstances (ii) within seven

years of her marriage, and (iii) and that the death had a live link with cruelty

connected with any demand of dowry. The other facet is that the husband

has indeed a heavy burden cast on his shoulders in that his deemed

culpability would have to be displaced and overturned beyond reasonable

doubt. This emerges clearly as the manner in which Parliament sought to

combat the scourge and evil of rampant bride burning or dowry deaths, to

which manner we unreservedly subscribe. In order to avoid prolixity we

shall record that our understanding of the law finds support in an extremely

extensive and erudite judgment of this Court in P.N. Krishna Lal v.

Government of Kerala, 1995 Supp (2) SCC 187, in which decisions

spanning the globe have been mentioned and discussed. It is also important

to highlight that Section 304B does not require the accused to give evidence

against himself but casts the onerous burden to dislodge his deemed guilt

beyond reasonable doubt. In our opinion, it would not be appropriate to

lessen the husband’s onus to that of preponderance of probability as that

would annihilate the deemed guilt expressed in Section 304B, and such a

curial interpretation would defeat and neutralise the intentions and purposes

of Parliament. A scenario which readily comes to mind is where dowry

demands have indubitably been made by the accused husband, where in an

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Page 25 agitated state of mind, the wife had decided to leave her matrimonial home,

and where while travelling by bus to her parents’ home she sustained fatal

burn injuries in an accident/collision which that bus encountered. Surely, if

the husband proved that he played no role whatsoever in the accident, he

could not be deemed to have caused his wife’s death. It needs to be

immediately clarified that if the wife had taken her life by jumping in front

of a bus or before a train, the husband would have no defence. Examples

can be legion, and hence we shall abjure from going any further. All that

needs to be said is that if the husband proves facts which portray, beyond

reasonable doubt, that he could not have caused the death of his wife by

burns or bodily injury or not involved in any manner in her death in

abnormal circumstances, he would not be culpable under Section 304B.

18Now, to the case in hand. It has been contended before us, as was also

unsuccessfully argued before both the Courts below that there was a ‘delay’

in lodging the FIR. There is no perversity in the concurrent views that its

lodgement after ten hours on the day next after the tragedy, i.e. 8/02/98 did

not constitute inordinate delay such as would justifiably categorising the FIR

as an after-thought or as contrived. The Complainant along with family and

friends had to travel to another village; he would have had to first come to

terms with the tragedy, make enquiries and consider the circumstances,

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Page 26 before recording the FIR. Equally preposterous is the argument that once

the High Court had seen fit to acquit the other accused, namely, Davinder

Singh (brother-in-law) and Jarnail Singh (father-in-law) the

husband/Appellant should have been similarly acquitted. It cannot be

ignored that the accused was not living with his parents and brother, and it is

justified nay necessary to require stronger proof to implicate the family

members of the husband. It has been essayed by the learned counsel for the

Appellant to impress upon us that the cruelty postulated in this provision has

not been shown to have occurred “soon before her death”. This argument,

assumes on a demurrer, that statutory cruelty had, in fact, been committed.

The deceased and the Appellant were married in February, 1997 and the

former committed suicide within one year; to even conjecture that it was not

soon before death, has only to be stated to be stoutly shot down.

19We must consider, lastly, whether the prosecution has successfully

‘shown’ that the deceased was subjected to cruelty which was connected

with dowry demands. We may usefully reiterate here that keeping in

perspective the use of “shown” instead of “proved” the onus would stand

satisfied on the anvil of preponderance of evidence.

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Page 27 20The two prosecution witnesses, on whom the entire episode is

predicated, are PW4 and PW7. The Complainant/PW4-Angrez Singh

appears to be the eldest in the family as he has stated that his brother, i.e. the

father of the deceased, had already died. He has stated that sufficient

kanyadan was given at the time of marriage; that two months prior to her

death the deceased had, on one of her visits to their home, conveyed to her

brothers that her husband and his family were harassing her for dowry,

especially a motorcycle and fridge. On learning of these demands PW4 had

told her that these goods would be provided at the time of the marriage of

her brothers. PW4 was told by Rajwant Singh that his niece had committed

suicide. The Complainant has admitted that there were no demands for

dowry either at the betrothal or at the time of marriage. Her maternal

uncle Gurdip Singh avowedly fixed/mediated/arranged the unfortunate

marriage, yet he was not apprised of the dowry demands by Angrez Singh.

He has also denied that any panchayat was convened regarding these dowry

demands, whereas Sukhwant Singh PW7, the real brother of the deceased,

has categorically stated in cross-examination that a panchayat comprising

both Angrez Singh and Gurdip Singh and several others had held

deliberations.

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Page 28 21In cross-examination, the complainant has admitted that the deceased

never spoke to him about her domestic problems or regarding demand of

dowry by the accused except once, on the last occasion of her visit. He has

further admitted that even her brothers had not conveyed any information to

him in this regard. On the fateful day PW4 stated that he reached the

village where the deceased resided and where she had committed suicide at

about 7.00 pm on 7.2.1998 and that he immediately left for that place along

with several others after ascertaining facts; the following morning he lodged

the report at P.S. Assandh. What is important from his deposition is that he

has deposed of only one alleged demand of dowry.

22Sukhwant Singh, the real brother of the deceased has been examined

as PW7 and he has deposed that the deceased visited their house two months

prior to her death and narrated that the Appellant, his younger brother, their

father and mother used to harass and torture her and demand dowry in the

form of motorcycle and fridge and that he had told these facts to their uncle,

Angrez Singh, as well as to his elder brother Jaswant Singh. He has further

stated that he made the deceased understand about their financial difficulties

and promised to give motorcycle and fridge after his marriage and that of her

brother. He was informed of the death of the deceased on 7.2.98 by Angrez

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Page 29 Singh/PW4. In cross-examination even this witness has admitted that no

dowry demands were made prior to or at the time of marriage. He has also

deposed about a panchayat which included Gurdeep Singh (maternal uncle)

as well as Angrez Singh/PW4 who, as has already been noted, has

categorically stated that no such Panchayat took place. The version of the

Appellant was put to him and denied, namely, that the deceased was hot

tempered, wanted him to shave his hair, forced him to live separately from

his parents, wanted him to shift to Karnal and start a business, all of which

were against his wishes. The fundamental and vital question that the Court

has to ask itself and find a solid answer to, is whether this evidence even

preponderantly proves that the Appellant had treated the deceased with

cruelty connected with dowry demands. It is only if the answer is in the

affirmative will the Court have to weigh the evidence produced by the

Appellant to discharge beyond reasonable doubt, the assumption of his

deemed guilt. We have not lost sight of the fact that the deceased was

pregnant at the time of her suicide and that only extraordinary and

overwhelming factors would have driven her to take her life along with that

of her unborn child. The fact remains that she did so. What motivated or

compelled her to take this extreme and horrific step will remain a mystery,

as we are not satisfied that the prosecution has proved or even shown that

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Page 30 she was treated with such cruelty, connected with dowry demands, as led her

to commit suicide. In the normal course dowry demands are articulated

when the marriage is agreed upon and is certainly reiterated at the time when

it is performed and such demands continue into a couple of years of

matrimony. In normal course, if a woman is being tortured and harassed,

she would not remain reticent of this state of affairs and would certainly

repeatedly inform her family. This is specially so before she takes the

extreme step of taking her own life. Added to this are the inconsistencies

and contradictions between the statements of PW4 and PW7 with regard to

the panchayat and the presence of and knowledge of Gurdip Singh. It is for

these reasons that we are of the opinion that the prosecution has not

shown/presented and or proved even by preponderance of probabilities that

the deceased had been treated with cruelty emanating from or founded on

dowry demands. It is in the realm of a possibility that the ingestion of

aluminium phosphate may have been accidental.

23We may only observe that in his examination under Section 313

Cr.P.C. the accused has proffered details of his defence. This is not a case

where he has merely denied all the questions put by the Court to him. As

already stated above, because of the insufficiency or the unsatisfactory

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Page 31 nature of the facts or circumstances shown by the prosecution, the burden of

proving his innocence has not shifted to the Appellant, in the present case.

24In this analysis, the Appeal is allowed and the impugned Judgment

convicting and punishing the Appellant is set aside.

............................................J.

[VIKRAMAJIT SEN]

............................................J.

[KURIAN JOSEPH]

New Delhi;

January 09, 2015.

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