IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2469 of 2017

Arising Out of PS. Case No.-451 Year-2015 Thana- KHAGARIA District- Khagaria

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1.Bal Mukund Malakar aged about 71 years; S/o Late Ram Shevak Malakar

Resident of Village-Bhagat Tola (Mathura Pur), P.S. & District-Khagaria

2.Meena Devi aged about 65 years; W/o Bal Mukund Malakar Resident of

Village-Bhagat Tola (Mathura Pur), P.S. & District-Khagaria

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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with

CRIMINAL APPEAL (SJ) No. 2688 of 2017

Arising Out of PS. Case No.-451 Year-2015 Thana- KHAGARIA District- Khagaria

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Sri Ram Malakar S/o Bal Mukund Malakar, Resident of Village-Bhagat Tola

Mathura Pur, P.s. and District-Khagaria

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

======================================================

Appearance :

(In CRIMINAL APPEAL (SJ) No. 2469 of 2017)

For the Appellant/s: Mr. Ajay Kumar Thakur, Adv

: Mr. Pranshu Singh, Adv

: Mr. Purushottam Kumar, Adv

For the Respondent/s: Mrs. Anita Kumari Singh, APP

(In CRIMINAL APPEAL (SJ) No. 2688 of 2017)

For the Appellant/s: Mr. Ajay Kumar Thakur, Adv

: Mr. Pranshu Singh, Adv

: Mr. Purushottam Kumar, Adv

: Mr. Abu Bakar, Adv

For the Respondent/s: Mr. Shyed Ashfaque Ahmad, APP

======================================================

CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA

CAV JUDGMENT

Date : 09-10-2026

Both these appeals have been heard together, which

arises out of same judgment, and disposing herewith by this

common judgment.

2. Heard Mr. Ajay Kr. Thakur, learned counsel

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appearing on behalf of petitioners and Mr. Syed Ashfaque Ahmad

and Mrs. Anita Kumari Singh, learned A.P.Ps. for the State.

3. Both these appeals preferred by appellants/convicts

namely, Bal Mukund Malakar & Meena Devi in Cr. Appeal

(SJ) No. 2469/2017 and Sri Ram Malakar in Cr. Appeal

(SJ) No.2688/2017 against judgment of conviction dated

03.08.2017 and order of sentence dated 04.08.2017 rendered

by learned Fast Track Court No. 1, Khagaria in Sessions Trial No.

105/2016 and 94/2017, (arising out of Khagaria P.S. Case No.

451/2015), whereby and where-under all these appellants have

been convicted for the offence punishable under Section 304-

B/34 of the IPC and sentenced to undergo rigorous imprisonment

of seven years each and to pay a fine of Rs. 5000/-, and in

default of payment of fine, both appellants have to undergo

further for simple imprisonment for a period of one year for Bal

Mukund Malakar & Meena Devi in Cr. Appeal (SJ) No.

2469/2017. So far as appellant namely, Sri Ram Malakar in Cr.

Appeal (SJ) No.2688/2017 is concerned, he was further

sentenced to undergo R.I. for ten years under Section 304B/34

of the IPC along with fine of Rs. 10,000/- and in default of

payment of fine appellant have to undergo further rigorous

imprisonment for a period of one year.

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4. The crux of prosecution case as springs that the

informant’s daughter, Soni Kumari Rubi, was married to accused

Sri Ram Malakar, son of Balmukund Malakar, of Bhagat Tola,

P.S. Khagaria, District Khagaria, on 28.11.2013. At the time of

marriage, the informant allegedly gave gold ornaments worth

about Rs. 5 lakhs, along with other household articles as

dowry/gifts. After marriage, Soni Kumari went to her matrimonial

home and remained there for about 15 days, during which her

husband, parents-in-law and sister-in-law allegedly taunted her

for not bringing sufficient dowry and demanded Rs. 1 lakh in

cash, a motorcycle and an LED television from her parents. Soni

Kumari allegedly informed her mother about the dowry demands

and also stated that she was being assaulted by her husband and

in-laws and feared that they might kill her if the demands were

not fulfilled. Subsequently, on 04.07.2015 at about 6:30 P.M.,

the informant allegedly received information over mobile phone

No. 8406005545 that her daughter, Soni Kumari, had been

brutally murdered by her husband, father-in-law, mother-in-law

and sister-in-law. Thereafter, on 05.07.2015, the informant

submitted a written application before the S.H.O., Khagaria Police

Station, alleging the aforesaid offence against the accused

persons.

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5. On the basis of aforesaid written information of the

informant Khagaria P.S. Case No. 451/2015 was registered and

after completion of investigation, investigating officer submitted

charge sheet against the accused persons and cognizance was

taken by the learned CJM, Khagaria on 12.04.20216 and finally

the case was committed to the court of Session on 12.04.2016.

6. After commitment, learned trial court explained

charges to appellants/accused, on the basis of materials collected

during investigation, which they pleaded “not guilty” and claimed

trial.

7. To substantiate its case, the prosecution has

examined altogether ten prosecution witnesses and two defence

witnesses, which are as under:-

Sr. No(s). Prosecution Witnesses

P.W. 1 Sapna Kumari

P.W. 2 Sulekha Devi

P.W. 3 Sunita Devi

P.W. 4 Vijay Prasad

P.W. 5 Laxmi Kumari Malakar

P.W. 6 Anand Kumar

P.W. 7 Komal Kumari

P.W. 8 Jagat Ranjan

P.W. 9 Shatrughan Malakar

P.W. 10 Moti Kumar

Defence Witnesses

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D.W. 1 Dr. Sambart Kumar

D.W. 2 Dr. Manish Kumar

8. The prosecution has also relied upon the following

documents as to substantiate its case and exhibits from defence

also, which are as under:-

Exhibit

No(s).

List of documents.

Exhibit-1Signature of informant Sunita Devi on

her written application.

Exhibit-2 Signature of Sunita Devi on inquest

report.

Exhibit-2/1Signature of Vijay Prasad in inquest

report.

Exhibit-3 Fardbeyan in the writing of P.W. 6.

Exhibit-4Report of Forensic Science Lab Bihar,

Patna.

Exhibit-5Postmortem Report of deceased Soni @

Rubi Kumari.

Documents exhibited on behalf of defence.

Exhibit-A Prescription of Soni Kumari dated

30.03.2014.

Exhibit-A/1 Prescription of Soni Kumari dated

24.10.2014.

Exhibit-A/2 Prescription of Soni Kumari dated

23.04.2015.

Exhibit-A/3 Prescription of Soni Kumari dated

16.05.2015.

Exhibit-B Prescription of Rubi Devi dated

04.07.2015.

Exhibit-X Prescription of Meena Devi wife of

Balmukund Malakar issued by Sadar

Hospital, Khagaria

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9. After examination of prosecution witnesses and by

taking note of evidence and incriminating circumstances as

surfaced during trial, statement of accused persons including

appellants/accused were recorded under Section 313 of the

Cr.P.C. which was denied in totality by showing complete

innocence.

10. On the basis of evidences as surfaced during the

trial, the learned trial court convicted and sentenced the

appellants/convicts, in aforesaid terms. Being aggrieved of which

present appeal was preferred.

11. Hence, the present appeal.

Argument on behalf of the appellants/convicts

12. Learned counsel appearing for the appellants

submitted that the basic ingredients of Section 304-B IPC have

not been established. It is submitted that the mere fact as

deceased died within seven years of her marriage, cannot by

itself constitute a dowry death. It is further submitted that the

evidence regarding demand of dowry is general and omnibus and

that there is no reliable evidence showing that soon before the

death the deceased was subjected to cruelty or harassment in

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connection with, demand for dowry.

13. It is submitted that P.Ws. 1, 2, 7, 9 and 10,

who were cited by the prosecution, have not supported the

prosecution case. According to learned counsel, the remaining

witnesses are either close relatives or persons connected with the

family and their evidence requires careful scrutiny. It is further

submitted that P.Ws. 3 to 5 have attributed allegations generally

against the ‘accused persons’ without specifying the particular

act of any individual appellant. It is submitted that so far as

appellants Bal Mukund Malakar and Meena Devi are concerned,

there is no specific and individualized allegation sufficient to

sustain conviction.

14. Learned counsel further submitted that the

medical evidence does not support the allegation of homicidal

death. It is pointed out that during autopsy doctor did not find

any significant external or internal injury, except two abrasions

over the right wrist, which were capable of being caused in the

course of breaking of bangles. It is submitted that the cause of

death was not ascertained at the time of post-mortem and

viscera was sent for forensic examination, reliance has also been

placed upon the evidence regarding blood pressure of 60/40 and

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defence case is based upon cardiac attack.

15. It is further submitted that the Investigating

Officer has not been examined during the course of trial.

According to the appellants, such non-examination has caused

prejudice because the defence was deprived of the opportunity to

confront the material witnesses with their statements recorded

during investigation and to bring contradictions on record relating

to material aspects of the prosecution case.

16. In support of his submission Mr. Thakur relied

upon the following legal reports of Hon’ble Supreme Court which

are as under :-

(a). Sher Singh @ Partapa Vs. State of

Haryana [(2015) 3 SCC 724],

(b). Baijnath Vs. State of Madhya

Pradesh [(2017) 1 SCC 101],

(c). Sandeep Kumar Vs. State of

Uttarakhand [(2022) 14 SCC 544],

(d). Nand Lal Vs. State of Chhattisgarh

[(2023) 10 SCC 470],

(e). Rajesh Patil Vs. State of

Jharkhand [(2013) 3 SCC 791],

(f). Kali Ram Vs. State of Himachal

Pradesh [(1973) 2 SCC 808].

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17. Learned Additional Public Prosecutor appearing

for the State, while opposing the appeals, submitted that

deceased died within seven years of her marriage and her death

occurred at her matrimonial home. It is submitted that the

evidence of P.W. 3, P.W. 4 and P.W. 5 is sufficient to establish

demand of dowry and harassment. It is further submitted that

the statutory presumption under Section 113-B of the Indian

Evidence Act, 1872 is attracted and the appellants have failed to

rebut the same. Accordingly, it is submitted that no interference

is required with the judgment of conviction.

18. I have perused the trial court records carefully

and gone through the evidences available on record and also

considered the rival submissions as canvassed by learned counsel

appearing for the parties.

19. As to re-appreciate the evidences, while

disposing the present appeals, it would be apposite to discuss the

evidences available on record, which are as under:-

20. P.W. 1 Sapna Kumari has not supported the

prosecution version during trial and was declared hostile. Her

testimony, therefore, does not furnish substantive support to the

allegation of dowry demand or cruelty against any of the

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appellants. The prosecution has not been able to derive from her

testimony any material which may independently connect the

appellants with the alleged demand or harassment.

21. P.W. 2 Sulekha Devi has also not supported

the prosecution case and was declared hostile. Her deposition

does not provide corroboration to the allegations made by the

informant. Thus, the prosecution cannot derive any independent

support from her evidence for establishing the foundational facts

required for Section 304-B IPC.

22. P.W.-3 Sunita Devi is the informant and

mother of the deceased. Her evidence is naturally of significance

and has therefore been carefully considered. She supported the

allegation that her daughter was married with appellant Sri Ram

Malakar on 28.11.2013 and that substantial articles were given

at the time of marriage. She further stated regarding demand of

Rs.1,00,000/- and alleged ill-treatment of her daughter. She has

also stated that her daughter used to disclose about the demand

and harassment.

22.1. At the same time, the manner in which the

allegations are attributed to the appellants is material. The

evidence of P.W. 3, in the relevant part, is substantially in terms

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of allegations against the ‘accused persons' collectively. The

evidence does not consistently disclose a particular date, place or

particular overt act of appellant Bal Mukund Malakar or appellant

Meena Devi immediately preceding the death. The distinction is

important because a conviction under Section 304-B IPC is not to

be founded merely upon the relationship of the accused with the

deceased.

22.2. The alleged disclosures made by the deceased

to her mother cannot be discarded merely because the witness is

the mother of the deceased. At the same time, such evidence has

to be examined with the same degree of care which the criminal

standard of proof demands. The fact that a witness is a close

relative neither makes the witness inherently unreliable nor

dispenses with the requirement of a credible and proximate

connection between the alleged dowry-related cruelty and the

death.

23. In this context, the Hon'ble Supreme Court in

Nand Lal Vs. State of Chattisgarh, (2023) 10 SCC 470,

particularly in paragraph 32, has reiterated that the Court is

concerned with the quality and not merely the quantity of

evidence and that evidence of interested witnesses has to be

examined in the light of its intrinsic worth and surrounding

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circumstances. The said principle does not mean that related

evidence is to be rejected, but that it has to inspire confidence on

a careful scrutiny. It Would be apposite to reproduce para no. 32

of Nand Lal Case (supra), which is as under :-

32. Undisputedly, the present case rests on the

evidence of interested witnesses. No doubt that two of

them are injured witnesses. This Court, in Vadivelu

Thevar v. State of Madras [Vadivelu Thevar v. State of

Madras, 1957 SCC OnLine SC 13 : 1957 SCR 981 :

AIR 1957 SC 614] , has observed thus : (AIR p. 619,

paras 11-12)

“11. … Hence, in our opinion, it is a sound and well-

established rule of law that the court is concerned with

the quality and not with the quantity of the evidence

necessary for proving or disproving a fact. Generally

speaking, oral testimony in this context may be

classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should

have no difficulty in coming to its conclusion either way

— it may convict or may acquit on the testimony of a

single witness, if it is found to be above reproach or

suspicion of interestedness, incompetence or

subornation. In the second category, the court equally

has no difficulty in coming to its conclusion. It is in the

third category of cases, that the court has to be

circumspect and has to look for corroboration in

material particulars by reliable testimony, direct or

circumstantial.”

24. P.W. 4 Vijay Prasad has supported the

allegation relating to demand of Rs.1,00,000/-, vehicle and LCD

television. His evidence suggests that the vehicle and television

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were supplied, whereas the alleged demand of Rs.1,00,000/-

remained. He has also referred to alleged torture of the

deceased. However, his allegations regarding the acts of cruelty

are again substantially collective in nature. The deposition does

not furnish a clear and reliable individualized act of dowry-related

cruelty against appellant Bal Mukund Malakar or appellant Meena

Devi which can be connected with the death of the deceased.

25. P.W. 5 Laxmi Kumari Malakar has also

spoken about demand relating to vehicle, television and

Rs.1,00,000/-. She has stated about an occasion when the

accused persons allegedly questioned why the money had not

been brought and the deceased was allegedly manhandled. Her

evidence, however, also requires careful examination to

proximity. Significantly, when the deceased did not want to return

to her matrimonial home, P.W. 5 specifically attributes the act of

taking her back under pressure to appellant Sri Ram Malakar.

This part of the evidence, even if accepted, does not by itself

establish that immediately or soon before the death the deceased

was subjected to dowry-related cruelty by all the appellants.

25.1. There is also a discrepancy regarding the date

of marriage emerging from the testimony of P.W.-5, which is at

variance with the date of marriage projected by the prosecution,

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i.e., 28.11.2013. This discrepancy may not, standing alone,

demolish the prosecution case; however, where the prosecution

evidence is otherwise general and lacks a proximate link between

the alleged demand and death, such inconsistency assumes

significance while assessing the overall reliability of the

prosecution version.

26. P.W. 6 Anand Kumar is principally connected

with the preparation and proving of the written

application/fardbeyan. His evidence does not supply a distinct and

individualized overt act of dowry demand or cruelty against the

appellants so as to bridge the gap which otherwise remains in the

evidence of P.Ws. 3 to 5.

27. P.W. 7 Komal Kumari has not supported the

prosecution version and was declared hostile. Her evidence,

therefore, does not furnish corroboration to the alleged demand

or harassment.

28. P.W. 8 Dr. Jagat Ranjan is the doctor who

conducted the post-mortem examination upon deceased. His

evidence is of considerable importance because the nature of the

death is one of the statutory ingredients of a prosecution under

Section 304-B IPC. The post-mortem evidence does not disclose

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any significant external or internal injury on the body of the

deceased, except two abrasions over the right wrist. The defence

has pointed out that such abrasions could be caused by breaking

of bangles.

28.1. The doctor did not initially ascertain the cause

of death and the viscera was sent for forensic examination. The

defence has relied upon the medical evidence regarding blood

pressure of 60/40 as indicative of shock and has also relied upon

the subsequent forensic material to contend that the death was

due to cardiac attack. This Court is not required to conclusively

hold that the defence explanation is affirmatively established

merely because such evidence has been brought on record. What

is relevant is whether the medical evidence, taken with the other

circumstances, affirmatively supports the prosecution allegation of

a homicidal or otherwise unexplained death attributable to dowry-

related cruelty. On that aspect, the medical evidence does not

provide the necessary corroborative assurance to the prosecution

case.

29. P.W. 9 Shatrughan Malakar has not

supported the prosecution case and was declared hostile. His

evidence also does not advance the prosecution case against any

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of the appellants.

30. P.W. 10 Moti Kumar has similarly not

supported the prosecution version and was declared hostile. Thus,

out of ten prosecution witnesses, five witnesses have not

supported the prosecution case, while the substantive allegations

are principally founded upon P.Ws. 3 to 5, whose evidence, as

noticed above, requires scrutiny both as to the nature of the

attribution and as to its proximity to the death.

31. It is settled that merely because a prosecution

witness has been declared hostile, his entire evidence does not

become non-existent. The Court is required to examine the

admissible portion of the testimony and see whether any part of

it inspires confidence or receives corroboration from other

evidence. In the present case, however, the hostile witnesses do

not furnish the missing corroborative link. The evidence which

remains against the appellants has to stand on its own strength.

32. It is also relevant to notice that the prosecution

case against the three appellants is not of the same evidentiary

value. So far as appellant Sri Ram Malakar is concerned, P.W.-5

has made a specific attribution regarding taking the deceased

back to the matrimonial home. But even such attribution has to

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be tested against the statutory requirement that the deceased

must have been subjected, soon before her death, to cruelty or

harassment by the husband or his relative for, or in connection

with, any demand for dowry.

33. So far as appellants Bal Mukund Malakar and

Meena Devi are concerned, the evidence of P.Ws. 3 to 5 is

substantially collective. No specific act, particular incident or

proximate conduct of either of them has been established by

reliable evidence so as to connect either appellant with the

alleged dowry-related cruelty soon before the death. The mere

status of being father-in-law or mother-in-law cannot be treated

as a substitute for proof of the statutory ingredients.

34. The prosecution also did not examine the

Investigating Officer during trial. It is true that non-examination

of the Investigating Officer is not an inflexible rule rendering

every prosecution case liable to fail. Its effect depends upon the

facts of the case. But where the prosecution witnesses have

made general allegations, where material contradictions or

omissions are relevant to the defence, and where the

Investigating Officer is the witness through whom the previous

statements could ordinarily be confronted in the manner known to

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law, the prejudice caused to the defence assumes importance.

35. The legal report of Hon’ble Supreme Court as

available through Rajesh Patil Vs. State of Jharkhand,

(2013) 3 SCC 791 in paragraph 18, the Hon'ble Supreme Court

recognized the prejudice which may result from non-examination

of material witnesses, including the Investigating Officer,

depending upon the nature of the defence and the evidence

required to be tested. The principle is not that non-examination is

automatically fatal, but that the Court must examine whether the

omission has materially impaired the defence or the proof of the

prosecution case. It would be apposite to reproduce para no. 18

of Rajesh Patil Case (supra), which is as under:-

18. Further, neither the doctor nor the IO has been

examined before the trial court to prove the

prosecution case. The appellant was right in bringing

to the notice of the trial court as well as the High

Court that the non-examination of the aforesaid two

important witnesses in the case has prejudiced the

case of the appellant for the reason that if the

doctor would have been examined he could have

elicited evidence about any injury sustained by the

prosecutrix on her private part or any other part of

her body and also the nature of hymen layer, etc. so

as to corroborate the story of the prosecution that

the prosecutrix suffered unbearable pain while the

appellant committed rape on her. The non-

examination of the doctor who had examined her

after 12 days of the occurrence has not prejudiced

the case of the defence for the reason that the

prosecutrix was examined after 12 days of the

offence alleged to have been committed by the

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appellant because by that time the sign of rape must

have disappeared. Even if it was presumed that the

hymen of the victim was found ruptured and no

injury was found on her private part or any other

part of her body, finding of such rupture of hymen

may be for several reasons in the present age when

the prosecutrix was a working girl and that she was

not leading an idle life inside the four walls of her

home. The said reasoning assigned by the High

Court is totally erroneous in law.

36. In the present case, the non-examination of the

Investigating Officer becomes relevant because the prosecution

evidence which remains is substantially dependent upon the

statements of close relatives and general allegations against

several accused persons. The defence was deprived of the

opportunity to test, through the Investigating Officer, the precise

omissions and contradictions in such statements. This

circumstance, therefore, cannot be brushed aside while

determining whether the prosecution has established the case

beyond reasonable doubt.

37. The central question now is whether the

evidence on record satisfies the statutory ingredients of Section

304-B IPC, which is as under:-

“304-B. 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

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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 purposes of this sub-section,

‘dowry’ shall have the same meaning as in section 2

of the Dowry Prohibition Act, 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.”

38. Section 113-B of the Indian Evidence Act, 1872

provides for a statutory presumption in relation to dowry death.

However, the presumption is conditional and cannot be invoked

merely because the death has occurred within seven years of

marriage.

39. The legal report of Hon’ble Supreme Court as

available through Sandeep Kumar Vs. State of Uttarakhand,

(2022) 14 SCC 544, where in paragraph 36, the Hon'ble

Supreme Court has stated the ingredients of Section 304-B IPC

and has specifically observed that Section 113-B of the Evidence

Act comes into operation when the foundational ingredients are

established, including the fact that soon before the death the

deceased was subjected to cruelty or harassment on account of

dowry demand. It would be apposite to reproduce para no. 36 of

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the Sandeep Kumar Case (supra), which is as under:-

The findings by the High Court in the impugned

judgment [Harendra Singh Pal v. Sandeep

Kumar, 2017 SCC OnLine Utt 1942]

36. Though at the solemnization of marriage, there

is no discussion of dowry, however, after 2-3

months, the accused and his family members

(appellants) started demanding dowry. Thereafter,

reference is made to PW 8, who deposed that

panchas opined that it was a case of poisoning. The

High Court finds that the evidence of DW 1 does not

reveal that the deceased was suffering from

tuberculosis and that she had eosinophilia. Referring

to the evidence of DW 2 Dr Mamta Tyagi, the High

Court says that the deceased was only complaining

of stomach ache and discharge of white fluid. The

patient has never told the doctor about her

tuberculosis. The treatment also did not relate to the

tuberculosis. The doctor has admitted that

tuberculosis can be cured after six to seven months

of treatment. The High Court, thus, concludes that it

is in evidence of DW 1 and DW 2 that the deceased

was not suffering from tuberculosis. Thereafter, the

High Court goes through evidence of DW 4 and finds

that the doctor had admitted that once the

treatment was taken ten years back for tuberculosis,

there was no question of recurrence of the disease.

The deceased had gone to her on 2-12-2009 for the

postponement of her menstrual cycle and the

marriage took place on 9-12-2009. The deceased

has never told the symptoms of tuberculosis after 2-

12-2009.

40. The expression ‘soon before' does not mean

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‘immediately before'. However, this principle cannot be

stretched to dispense with proximity altogether. In Sher Singh

@ Partapa Vs. State of Haryana, (2015) 3 SCC 724, in

paragraph 16, the Hon'ble Supreme Court explained that the

demand should not be stale and that the cruelty or harassment

must retain a continuing causal or live link with the death. It

would be apposite to reproduce para no. 16 of the Sher Singh

Case (supra), which is as under:-

16. As is already noted above, Section 113-B of the

Evidence Act and Section 304-B IPC were

introduced into their respective statutes

simultaneously and, therefore, it must ordinarily be

assumed that Parliament intentionally used the word

“deemed” in Section 304-B 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 [(1953) 1 SCC

826 : AIR 1953 SC 333] and State of T.N. v.

Arooran Sugars Ltd. [(1997) 1 SCC 326] , requiring

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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 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 304-B 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 her 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 304-B; 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

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should be the continuing cause for the death under

Section 304-B or the suicide under Section 306 IPC.

Once the presence of these concomitants is

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 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

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

41. The same principle has been reiterated through

the legal report of Hon’ble Supreme Court in Rajinder Singh Vs.

State of Punjab, (2015) 6 SCC 477, paragraph 24, where the

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Hon'ble Supreme Court held that the word ‘soon' is a relative

expression and that what is required is that the demand should

not be stale but should be a continuing cause for the death. It

would be apposite to reproduce para no. 24 of Rajinder Singh

Case (supra), which is as under:-

24. We endorse what has been said by these two

decisions. Days or months are not 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.

42. The legal report of Hon’ble Supreme Court as

available through Baijnath Vs. State of Madhya Pradesh,

(2017) 1 SCC 101, from paragraphs 29 to 32, the Hon'ble

Supreme Court has explained that the presumption under Section

113-B of the IPC is founded upon proof of cruelty or harassment,

or in connection with, demand for dowry and that the

foundational facts must first be established by the prosecution. It

would be apposite to reproduce para no(s). 29 to 32 of Baijnath

Case (supra), which is as under:-

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29. Noticeably this presumption as well is founded

on the proof of cruelty or harassment of the woman

dead for or in connection with any demand for

dowry by the person charged with the offence. The

presumption as to dowry death thus would get

activated only upon the proof of the fact that the

deceased lady had been subjected to cruelty or

harassment for or in connection with any demand

for dowry by the accused and that too in the

reasonable contiguity of death. Such a proof is thus

the legislatively mandated prerequisite to invoke the

otherwise statutorily ordained presumption of

commission of the offence of dowry death by the

person charged therewith.

30 [Ed. : Para 30 corrected vide Official

Corrigendum No. F.3/Ed.B.J./93/2016 dated 3-7-

2017.] . A conjoint reading of these three

provisions, thus predicate the burden of the

prosecution to unassailably substantiate the

ingredients of the two offences by direct and

convincing evidence so as to avail the presumption

engrafted in Section 113-B of the Act against the

accused. Proof of cruelty or harassment by the

husband or his relative or the person charged is thus

the sine qua non to inspirit the statutory

presumption, to draw the person charged within the

coils thereof. If the prosecution fails to demonstrate

by cogent, coherent and persuasive evidence to

prove such fact, the person accused of either of the

abovereferred offences cannot be held guilty by

taking refuge only of the presumption to cover up

the shortfall in proof.

31. The legislative primature of relieving the

prosecution of the rigour of the proof of the often

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practically inaccessible recesses of life within the

guarded confines of a matrimonial home and of

replenishing the consequential void, by according a

presumption against the person charged, cannot be

overeased to gloss over and condone its failure to

prove credibly, the basic facts enumerated in the

sections involved, lest justice is the casualty.

32. This Court while often dwelling on the scope and

purport of Section 304-B of the Code and Section

113-B of the Act have propounded that the

presumption is contingent on the fact that the

prosecution first spell out the ingredients of the

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

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

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

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

State of Haryana, (2013) 16 SCC 640 : (2014) 6

SCC (Cri) 346] . In the latter pronouncement, this

Court propounded that one of the essential

ingredients of dowry death under Section 304-B of

the Code is that the accused must have subjected

the woman to cruelty in connection with demand for

dowry soon before her death and that this ingredient

has to be proved by the prosecution beyond

reasonable doubt and only then the Court will

presume that the accused has committed the offence

of dowry death under Section 113-B of the Act. It

referred to with approval, the earlier decision of this

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

Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC

217 : 2003 SCC (Cri) 271] to the effect that to

attract the provision of Section 304-B of the Code,

one of the main ingredients of the offence which is

required to be established is that “soon before her

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death” she was subjected to cruelty and harassment

“in connection with the demand for dowry”.

43. The statutory scheme does not reverse the

ordinary criminal burden at the very threshold. The prosecution

must first establish the facts which activate the presumption.

Only thereafter does the statutory presumption operate. This

principle is also consistent with the broader criminal jurisprudence

expressed by the Hon'ble Supreme Court in Kali Ram Vs. State

of Himachal Pradesh, (1973) 2 SCC 808, paragraph 23, that

the accused is presumed innocent until the prosecution

establishes guilt and that even where a statutory presumption

exists, the prosecution must first prove the facts necessary for

drawing that presumption. It would be apposite to reproduce para

no. 23 of Kali Ram Case (supra), which is as under:-

23. Observations in a recent decision of this Court,

Shivaji Sahabrao Bobade v. State of Maharashtra

[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] to

which reference has been made during arguments

were not intended to make a departure from the rule

of the presumption of innocence of the accused and

his entitlement to the benefit of reasonable doubt in

criminal cases. One of the cardinal principles which

has always to be kept in view in our system of

administration of justice for criminal cases is that a

person arraigned as an accused is presumed to be

innocent unless that presumption is rebutted by the

prosecution by production of evidence as may show

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him to be guilty of the offence with which he is

charged. The burden of proving the guilt of the

accused is upon the prosecution and unless it

relieves itself of that burden, the courts cannot

record a finding of the guilt of the accused. There

are certain cases in which statutory presumptions

arise regarding the guilt of the accused, but the

burden even in those cases is upon the prosecution

to prove the existence of facts which have to be

present before the presumption can be drawn. Once

those facts are shown by the prosecution to exist,

the Court can raise the statutory presumption and it

would, in such an event, be for the accused to rebut

the presumption. The onus even in such cases upon

the accused is not as heavy as is normally upon the

prosecution to prove the guilt of the accused. If

some material is brought on the record consistent

with the innocence of the accused which may

reasonably be true, even though it is not positively

proved to be true, the accused would be entitled to

acquittal.

44. In the present case, there is no dispute that the

marriage was within seven years of the death, but that

circumstance by itself does not complete the offence under

Section 304-B IPC. The prosecution must establish the remaining

ingredients, particularly the nature of the death and, more

importantly in the facts of the present case, the existence of

dowry-related cruelty or harassment soon before the death and

the proximate or live link between such conduct and the death.

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45. On careful consideration of the evidence of

P.Ws. 3, 4 and 5, this Court finds that the prosecution has

established allegations of demand in a broad and general manner.

What is lacking is reliable evidence demonstrating a continuous

and proximate course of dowry-related cruelty immediately

preceding the death. The evidence does not disclose with

sufficient clarity the last incident of dowry demand, the date of

such incident, the person who made the demand, the specific act

of cruelty committed thereafter and its proximity to the death.

46. The expression ‘soon before' is a relative

expression, but it is not an expression which permits the Court to

dispense with a live link altogether. The prosecution has to

establish that the alleged cruelty was not a stale or isolated event

but continued as a proximate cause connected with the death.

The evidence in the present case does not satisfactorily establish

that link.

47. The prosecution version also requires

consideration in the light of the medical evidence. The post-

mortem report does not record injuries of such nature as would

independently corroborate the allegation of physical violence

resulting in death. The two abrasions on the right wrist, in the

circumstances available on record, do not by themselves establish

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that the deceased was assaulted in a manner causing her death.

The doctor did not initially ascertain the cause of death. The

defence material, including the treatment records and medical

evidence, provides an alternative explanation which cannot be

termed fanciful.

48. It is not the requirement of criminal law that

the accused must establish the defence version with the same

standard as the prosecution. Where the prosecution evidence

itself, fails to establish the foundational facts and the defence

version introduces a reasonable possibility consistent with

innocence, the resulting doubt must ensure to the benefit of the

accused.

49. The constitutional dimension of criminal

adjudication cannot lose the sight of Article 21 of the Constitution

of India, which protects life and personal liberty and requires a

fair procedure, in accordance with law. A criminal conviction,

carrying serious consequences upon personal liberty and

reputation must, therefore, rest upon evidence satisfying the

standard prescribed by criminal law. Article 14 also embodies the

principle that State action affecting liberty must conform to non-

arbitrariness and fairness. The statutory presumption under

Section 113-B of the Indian Evidence Act is a legislative aid to

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the prosecution, it cannot be converted into a substitute for proof

of the foundational circumstances which Parliament has made

conditions for its operation.

50. The presumption of innocence is not a mere

technical formula. It is a fundamental principle of criminal

jurisprudence. In Kali Ram Case (supra), paragraph 23, the

Hon'ble Supreme Court has emphasized that the burden of

proving guilt rests upon the prosecution and that where material

consistent with innocence reasonably exists, the accused is

entitled to acquittal.

51. It is equally settled that suspicion, however

grave, cannot take the place of proof. A court of criminal

jurisdiction has to distinguish between a case which raises

suspicion against an accused and a case in which the evidence

establishes guilt beyond reasonable doubt. The former cannot be

converted into the latter merely because the death is unfortunate

or occurred within the matrimonial home.

52. The death occurred within seven years of

marriage is undoubtedly a circumstance which requires serious

judicial scrutiny, but the statutory provision requires something

more. If the Court were to treat the period of marriage and the

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place of death as sufficient, the words relating to cruelty,

harassment, dowry demand and ‘soon before her death’ would

lose their independent statutory meaning. Such an interpretation

would not be consistent with the scheme of Section 304-B IPC.

53. The evidence against appellant Sri Ram

Malakar, considered at its highest, shows allegations of dowry

demand and an occasion where he took the deceased back to her

matrimonial home. However, there is no sufficient reliable

evidence establishing that the alleged dowry-related cruelty

continued as a proximate and live cause up to the death. The

prosecution, therefore, has not proved the essential statutory

ingredients beyond reasonable doubt.

54. As regarding appellant Bal Mukund Malakar and

appellant Meena Devi, the evidentiary deficiency is more

pronounced. The allegations against them are substantially

omnibus. No specific and proximate act of dowry-related cruelty

or harassment has been established against either of them. The

principle of constructive or common liability cannot be used to fill

the evidentiary gap in the foundational ingredients of Section

304-B IPC.

55. Section 34 of the IPC also cannot be employed

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as a device to cure the failure of the prosecution to prove the

substantive ingredients of the offence. Common intention is a

principle of joint liability, it does not dispense with proof of the

act and circumstances constituting the substantive offence. When

the prosecution fails to establish the very ingredients of dowry

death against the individual accused, Section 34 of the IPC

cannot independently create the missing foundation.

56. The evidence of the related witnesses has not

been discarded merely on the ground of relationship. Rather,

their evidence has been assessed on the touchstone of

consistency, specificity, corroboration and proximity. The

prosecution has to succeed on the strength of its own evidence.

The fact that the allegation is made by a mother or another

relative does not lower the burden of proof resting upon the

prosecution.

57. The five hostile witnesses also assume

significance in the overall evaluation. Their hostility does not by

itself destroy the prosecution case, but their failure to support the

allegation means that the corroborative support expected from

the prosecution's own witnesses is absent. The remaining

evidence, therefore, has to be sufficiently cogent on its own. In

the present case, the remaining evidence does not cure the

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defects already noticed.

58. It is also material that the prosecution did not

examine the Investigating Officer. In a case where the surviving

substantive evidence is general and collective and where the

defence specifically relies upon omissions and contradictions, the

inability to confront the witnesses through the Investigating

Officer causes a degree of prejudice which has to be taken into

account while determining whether the prosecution has

established the case beyond reasonable doubt. The principle

noticed in Rajesh Patil Case (supra), paragraph 18, is

therefore relevant on the facts of the present case.

59. The criminal process also requires that every

incriminating circumstance which is proposed to be relied upon

must have been fairly put to the accused in accordance with

Section 313 of the Cr.P.C. The Hon’ble Supreme Court in

Sukhjit Singh Vs. State of Punjab, (2014) 10 SCC 270,

paragraphs 10 to 14, has emphasized that Section 313 of the

Cr.P.C. is not an empty formality and that material incriminating

circumstances must be put to the accused so that he gets a fair

opportunity to explain them. The present judgment, however,

does not rest solely on Section 313 of the Cr.P.C. the principal

reason for interference is the failure of the prosecution to

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establish the foundational ingredients of Section 304-B IPC. It

would be apposite to reproduce para no(s). 10 to 14 of Sukhjit

Singh Case (supra), which is as under:-

10. On a studied scrutiny of the questions put under

Section 313 CrPC in entirety, we find that no

incriminating material has been brought to the notice

of the accused while putting questions. Mr Talwar

has submitted that the requirement as engrafted

under Section 313 CrPC is not an empty formality.

To buttress the aforesaid submission, he has drawn

inspiration from the authority in Ranvir Yadav v.

State of Bihar [(2009) 6 SCC 595 : (2009) 3 SCC

(Cri) 92] . Relying upon the same, he would contend

that when the incriminating materials have not been

put to the accused under Section 313 CrPC it

tantamounts to serious lapse on the part of the trial

court making the conviction vitiated in law.

11. In this context, we may profitably refer to a

four-Judge Bench decision in Tara Singh v. State

[1951 SCC 903 : AIR 1951 SC 441 : (1951) 52 Cri

LJ 1491] wherein, Bose, J. explaining the

significance of the faithful and fair compliance with

Section 342 of the Code as it stood then, opined

thus: (AIR pp. 445-46, para 30)

“30. I cannot stress too strongly the importance of

observing faithfully and fairly the provisions of

Section 342 of the Criminal Procedure Code. It is

not a proper compliance to read out a long string of

questions and answers made in the committal court

and ask whether the statement is correct. A question

of that kind is misleading. It may mean either that

the questioner wants to know whether the recording

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is correct, or whether the answers given are true, or

whether there is some mistake or misunderstanding

despite the accurate recording. In the next place, it

is not sufficient compliance to string together a long

series of facts and ask the accused what he has to

say about them. He must be questioned separately

about each material circumstance which is intended

to be used against him. The whole object of the

section is to afford the accused a fair and proper

opportunity of explaining circumstances which

appear against him. The questioning must therefore

be fair and must be couched in a form which an

ignorant or illiterate person will be able to appreciate

and understand. Even when an accused person is

not illiterate, his mind is apt to be perturbed when

he is facing a charge of murder. He is therefore in

no fit position to understand the significance of a

complex question. Fairness therefore requires that

each material circumstance should be put simply and

separately in a way that an illiterate mind, or one

which is perturbed or confused, can readily

appreciate and understand. I do not suggest that

every error or omission in this behalf would

necessarily vitiate a trial because I am of opinion

that errors of this type fall within the category of

curable irregularities. Therefore, the question in each

case depends upon the degree of the error and upon

whether prejudice has been occasioned or is likely to

have been occasioned. In my opinion, the disregard

of the provisions of Section 342 of the Criminal

Procedure Code, is so gross in this case that I feel

there is grave likelihood of prejudice.”

12. In Hate Singh Bhagat Singh v. State of Madhya

Bharat [1951 SCC 1060 : AIR 1953 SC 468 : 1953

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Cri LJ 1933] , Bose, J. speaking for a three-Judge

Bench highlighting the importance of recording of

the statement of the accused under the Code

expressed thus: (AIR pp. 469-70, para 8)

“8. Now the statements of an accused person

recorded under Sections 208, 209 and 342, Criminal

Procedure Code are among the most important

matters to be considered at the trial. It has to be

remembered that in this country an accused person

is not allowed to enter the box and speak on oath in

his own defence. This may operate for the protection

of the accused in some cases but experience

elsewhere has shown that it can also be a powerful

and impressive weapon of defence in the hands of

an innocent man. The statements of the accused

recorded by the Committing Magistrate and the

Sessions Judge are intended in India to take the

place of what in England and in America he would be

free to state in his own way in the witness box.”

13. The aforesaid principle has been reiterated in

Ajay Singh v. State of Maharashtra [(2007) 12 SCC

341 : (2008) 1 SCC (Cri) 371] in following terms:

(SCC pp. 347-48, para 14)

“14. The word ‘generally’ in sub-section (1)(b) does

not limit the nature of the questioning to one or

more questions of a general nature relating to the

case, but it means that the question should relate to

the whole case generally and should also be limited

to any particular part or parts of it. The question

must be framed in such a way as to enable the

accused to know what he is to explain, what are the

circumstances which are against him and for which

an explanation is needed. The whole object of the

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section is to afford the accused a fair and proper

opportunity of explaining circumstances which

appear against him and that the questions must be

fair and must be couched in a form which an

ignorant or illiterate person will be able to appreciate

and understand. A conviction based on the accused's

failure to explain what he was never asked to

explain is bad in law. The whole object of enacting

Section 313 of the Code was that the attention of

the accused should be drawn to the specific points in

the charge and in the evidence on which the

prosecution claims that the case is made out against

the accused so that he may be able to give such

explanation as he desires to give.”

14. In view of the aforesaid enunciation of law,

there can be no scintilla of doubt that when the

requisite questions have not been put to the accused

it has caused immense prejudice to him, more so,

when there is no evidence to establish his complicity

in the alleged abduction.

60. The appellate court, while exercising jurisdiction

under Section 374(2) of the Code, is required to re-appreciate

the entire evidence. The appellate scrutiny is not confined to the

reasons assigned by the trial court. The Court has to determine

whether the conviction is sustainable on the evidence legally

available on record and whether the prosecution has discharged

the burden imposed upon it by law.

61. On a cumulative appreciation of the evidence,

this Court finds that the prosecution has succeeded in

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establishing the factum of marriage within seven years and has

brought on record allegations of dowry demand through P.Ws. 3

to 5, but the prosecution has not established beyond reasonable

doubt that soon before her death the deceased was subjected to

cruelty or harassment by the appellants, or in connection with,

demand for dowry in such a manner as to maintain the requisite

proximate and live link with her death.

62. Consequently, the foundational facts necessary

for invoking the presumption under Section 113-B of the Indian

Evidence Act have not been established. The statutory

presumption, therefore, cannot be raised against the appellants.

The burden cannot be shifted to the accused in the absence of

proof of the very circumstances which activate the presumption.

63. The medical evidence, the absence of significant

injuries, the unresolved cause of death at the stage of post-

mortem, the defence medical material, the collective nature of

the allegations, the absence of a clear proximate incident of

dowry-related cruelty soon before the death, the lack of

individualized allegations against the father-in-law and mother-in-

law, the hostile evidence of P.Ws. 1, 2, 7, 9 and 10 and the non-

examination of the Investigating Officer, when considered

cumulatively, create a reasonable doubt which cannot be brushed

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aside in a criminal trial.

64. This Court is conscious of the social object

behind the enactment of Section 304-B IPC. The provision was

introduced to address the serious social evil of dowry deaths and

to ensure that cases in which direct evidence is ordinarily difficult

to obtain do not fail merely because of the nature of the domestic

setting, but the social purpose of a penal provision cannot

authorize the Court to dilute the statutory ingredients or the

constitutional requirement of a fair criminal adjudication.

65. The law laid down in Sher Singh Case (supra)

and the subsequent decisions makes it clear that the prosecution

has to first prove the concomitant circumstances of dowry death.

Once those circumstances are established, the statutory

presumption has substantial force. In the present case, the first

stage itself has not been crossed. The prosecution has not

supplied the necessary factual foundation for the statutory

presumption.

66. The principle of benefit of doubt is not an

artificial benefit created for the accused. It is the consequence of

the prosecution's failure to prove guilt according to the standard

prescribed by criminal law. As observed in Kali Ram Case

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(supra), where two views are reasonably possible on the

evidence, the view favorable to the accused must be adopted.

67. In the facts of the present case, it may be a

case which gives rise to suspicion regarding the circumstances

surrounding the death of Soni Kumari @ Rubi Kumari, but it is

not permissible to convert grave suspicion into proof of dowry

death in the absence of the necessary foundational evidence. The

prosecution has to answer the material question as to what was

the last dowry-related demand or act of cruelty, who committed

it, when it occurred, and how it retained a proximate and live

connection with the death. The evidence on record does not

answer these questions with the degree of certainty required in a

criminal prosecution.

68. Hence, in view of the aforesaid discussion, it

appears that the prosecution fails to establish its case beyond

reasonable doubt against the appellants. The benefit of doubt

must, therefore, be extended to them.

69. Accordingly, both these appeals stand allowed.

70. The impugned judgment of conviction dated

03.08.2017 and order of sentence dated 04.08.2017 passed by

learned Fast Track Court-I, Khagaria in Sessions Trial No.105 of

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2016/94 of 2017, arising out of Khagaria P.S. Case No.451 of

2015 corresponding to G.R. Case No.1730 of 2015, are hereby

quashed and set aside.

71. Resultantly, the appellant Sri Ram Malakar in

Criminal Appeal (SJ) No.2688 of 2017 and appellants Bal

Mukund Malakar and Meena Devi, in Criminal Appeal (SJ)

No.2469 of 2017 are acquitted of the charges levelled against

them by the learned trial court, extending benefit of doubts.

72. Since the appellants are on bail, they are

discharged from the liabilities of their respective bail bonds and

sureties. Fine, if any, deposited by the appellants, be returned to

them forthwith in accordance with law.

73. Let a copy of this judgment along with the Trial

Court Records be sent to the learned Trial Court forthwith.

S.Tripathi/-

(Chandra Shekhar Jha, J.)

AFR/NAFR AFR

CAV DATE 19.09.2026

Uploading Date 09.10.2026

Transmission Date 09.10.2026