Arijit Pasayat, J.-
1. Challenge in this appeal is to
the judgment of a learned Single Judge
of the Rajasthan High Court at Jodhpur allowing the appeal filed by the
State of Rajasthan questioning correctness of the judgment of acquittal
passed by a learned Sessions Judge, Sriganganagar. The appellant and two
others faced trial for alleged commission of offence punishable under
Sections 306 and 304 Part-B of the Indian Penal Code, 1860 (in short the
`IPC') and Section 4 of the Dowry Prohibition Act, 1961 (in short `Dowry
2. Prosecution version unfolded during trial is as follows:-
On 23-04-1988 at about 2.05 p.m., the accused Krishnalal lodged an
oral report Ex.P/12 before Jagmalram (PW-11) SHO, Police Station Purani
Abadi, Sri Ganganagar stating inter-alia that he was married with Smt.
(hereinafter referred to as the deceased) in the year 1984 and his
already died before 15 years back and since then he was living with his
mother Prem Kanwar, the present appellant and uncle Puran Chand and he
was not in service and thus was unemployed. On that day, he went out
his house for some work and when he returned back at about 1.30 p.m. he
found crowd near his house and also found fire in his house and people
were extinguishing the fire and he came to know that his wife, the
was burnt and had died and, therefore, he had come to inform the police.
On this report, police registered the FIR No. 7/88 and started
During investigation, postmortem of the dead body of the deceased
was got conducted and the post mortem report is Ex. P/3, where the
opined that the cause of the death of the deceased was asphyxia due to
When the investigation in FIR No. 7/88 was going on, PW 1 Bachna
Ram, father of the deceased, lodged a written report Ex. P/1 on
before police station Purani Abadi, Sri Ganganagar stating inter-alia
the three accused have murdered his daughter (deceased) by burning her
he had also come to know that a report was also lodged on behalf of the
accused stating therein that the deceased had committed suicide, but the
was that all the three accused have killed her. It was further stated in
report that all the three accused used to harass and torture her as she
illiterate lady and accused no 1 Krishnalal (husband of the deceased)
educated person and accused used to say that in dowry nothing was given
them and thus, they used to torture, harass and humiliate her. It was
stated in the report that action be taken against the accused for
daughter (deceased) by burning.
On this report, police chalked out FIR Ex. P/2 for the offence u/Ss.
306, 304 B IPC and started investigation.
After usual investigation, police submitted challan against the
accused respondents for the offence u/Ss. 306, 304 B IPC in the court of
3 agistrate holding inter alia that it was a case of dowry death.
the case was committed to the Court of Session.
As the accused persons denied the allegations trial was held. Eleven
witnesses were examined to establish the accusations. Learned Sessions
Judge directed acquittal inter-alia holding as follows:
1. That it is a case of suicide by the deceased.
2. That death of the deceased was caused due to burning
and has taken place within seven years of the marriage.
3. That Bachnaram (PW.l) father of the deceased took the
deceased to his house at the time of marriage of his son
and kept the deceased in his house for 12 months and
during that period nobody came from her-in-laws' house
to take her back.
4. That at the time of marriage of son of Rairam (PW-4),
Bachnaram (PW-1) and PW.4 went to the house of her
in-laws to take deceased where accused Prem Kanwar
(mother-in-law of the deceased) expressed her
displeasure and told that deceased be taken away by
them and her clothes were thrown away.
5. That above facts were admitted by the learned Sessions
Judge at pages 19 and 20 of his impugned judgment.
However, he observed that this statement of accused
Prem Kanwar (mother-in-law of the deceased) is to some
extent objectionable, but no case of dowry death or
abetment of suicide is made from this part of her
6. That prosecution has not been able to prove its case
beyond all reasonable doubts against the accused
respondents for the offence under Sections 306 and 304B
IPC and Section 4 of the Dowry Prohibition Act."
It is to be noted that the three accused persons were related to the
deceased in the following manner:
Krishnalal is the husband of he deceased, Puran Chand is the Uncle-
in-law and Prem Kanwar, the present appellant is the mother-in-law.
The High Court found that the conclusion of the trial Court that the
case was one of suicide was not established. The High Court found that
possibility that before burning the deceased was murdered was clear from
3. Learned counsel for the appellant submitted that considering the
limited nature of the scope of interference in a matter of acquittal,
Court ought not to have interfered, particularly, when it found that the
acquittal was in order so far as the other co-accused persons are
It was submitted that the High Court's conclusion that the skull bones
broken, which rules out the case of suicide, is contrary to medical
The High Court noted that to bring in application of Section 304 Part B,
is immaterial whether the death is suicidal or homicidal.
4. With reference to the evidence of Dhanni Devi (PW-5) it was
submitted that her evidence was not sufficient to fasten the guilt on
5. In response, learned counsel for the respondent-State supported the
judgment of the High Court.
6. In order to attract Section 304B IPC, the following ingredients are
i) The death of a woman must have been caused by
burns or bodily injury or otherwise than under normal circumstances.
ii) Such death must have occurred within 7 years of the
iii) Soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or any
relative of her husband; and
iv) Such cruelty or harassment must be in connection with
the demand of dowry.
Sections 304B and Section 498A read as follows:
"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 cruelty or harassment by
her husband or any relative of her husband for, or in
connection with any demand for dowry, such death shall
be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this sub-section
`dowry' shall have same meaning as in Section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to imprisonment
"498-A: Husband or relative of husband of a woman
subjecting her to cruelty- Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also
be liable to fine.
Explanation - For the purpose of this section `cruelty'
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand."
7. The term "dowry" has been defined in Section 2 of the Dowry
Prohibition Act, 1961 (in short `Dowry Act') as under:-
"Section 2. Definition of `dowry' - In this Act, `dowry'
means any property or valuable security given or agreed
to be given either directly or indirectly -
(a) by one party to a marriage to the other party
to the marriage; or
(b) by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person, at or before or any time after the marriage in connection
with the marriage of the said parties, but does not
include dower or mehr in the case of persons to whom
the Muslim personal law (Shariat) applies.
Explanation I- For the removal of doubts, it is hereby
declared that any presents made at the time of a marriage
to either party to the marriage in the form of cash,
ornaments, clothes or other articles, shall not be deemed
to be dowry within the meaning of this section, unless
they are made as consideration for the marriage of the
Explanation II- The expression `valuable security' has
the same meaning in Section 30 of the Indian Penal
Code (45 of 1860)."
8. Explanation to Section 304-B refers to dowry "as having the same
meaning as in Section 2 of the Act", the question is : what is the
of the dowry as defined therein ? The argument is, there has to be an
agreement at the time of the marriage in view of the words "agreed to be
given" occurring therein, and in the absence of any such evidence it
not constitute to be a dowry. It is noticeable, as this definition by
amendment includes not only the period before and at the marriage but
the period subsequent to the marriage. This position was highlighted in
Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).
9. The offence alleged against the accused is under Section 304-B IPC
which makes "demand of dowry" itself punishable. Demand neither
conceives nor would conceive of any agreement. If for convicting any
offender, agreement for dowry is to be proved, hardly any offenders
come under the clutches of law. When Section 304-B refers to "demand of
dowry", it refers to the demand of property or valuable security as
to in the definition of "dowry" under the Act. The argument that there
demand of dowry, in the present case, has no force. In cases of dowry
and suicides, circumstantial evidence plays an important role and
can be drawn on the basis of such evidence. That could be either direct
indirect. It is significant that Section 4 of the Act, was also amended
means of Act 63 of 1984, under which it is an offence to demand dowry
directly or indirectly from the parents or other relatives or guardian
bride. The word "agreement" referred to in Section 2 has to be inferred
the facts and circumstances of each case. The interpretation that the
seek, that conviction can only be if there is agreement for dowry, is
misconceived. This would be contrary to the mandate and object of the
"Dowry" definition is to be interpreted with the other provisions of the
including Section 3, which refers to giving or taking dowry and Section
which deals with a penalty for demanding dowry, under the Act and the
IPC. This makes it clear that even demand of dowry on other ingredients
being satisfied is punishable. It is not always necessary that there be
agreement for dowry.
10. Section 113-B of the Evidence Act is also relevant for the case at
hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were
inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of
1986 with a view to combat the increasing menace of dowry deaths.
113-B reads as follows:-
"113-B: Presumption as to dowry death- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation - For the purposes of this section `dowry
death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
11. The necessity for insertion of the two provisions has been amply
analysed by the Law Commission of India in its 21st Report dated 10th
August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the
impediment in the pre-existing law in securing evidence to prove dowry
related deaths, legislature thought it wise to insert a provision
presumption of dowry death on proof of certain essentials. It is in this
background presumptive Section 113-B in the Evidence Act has been
inserted. As per the definition of `dowry death' in Section 304-B IPC
the wording in the presumptive Section 113-B of the Evidence Act, one of
the essential ingredients, amongst others, in both the provisions is
concerned woman must have been "soon before her death" subjected to
cruelty or harassment "for or in connection with the demand of dowry".
Presumption under Section 113-B is a presumption of law. On proof of the
essentials mentioned therein, it becomes obligatory on the Court to
presumption that the accused caused the dowry death. The presumption
shall be raised only on proof of the following essentials:
(1) The question before the Court must be whetherthe accused has committed the dowry death of a
woman. (This means that the presumption can be raised
only if the accused is being tried for the offence under
Section 304-B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her
12. A conjoint reading of Section 113-B of the Evidence Act and Section
304-B IPC shows that there must be material to show that soon before her
death the victim was subjected to cruelty or harassment. Prosecution has
rule out the possibility of a natural or accidental death so as to bring
within the purview of the `death occurring otherwise than in normal
circumstances'. The expression `soon before' is very relevant where
Section 113-B of the Evidence Act and Section 304-B IPC are pressed into
service. Prosecution is obliged to show that soon before the occurrence
there was cruelty or harassment and only in that case presumption
Evidence in that regard has to be led by prosecution. `Soon before' is a
relative term and it would depend upon circumstances of each case and no
strait-jacket formula can be laid down as to what would constitute a
of soon before the occurrence. It would be hazardous to indicate any
period, and that brings in the importance of a proximity test both for
proof of an offence of dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The expression `soon before her
death' used in the substantive Section 304-B IPC and Section 113-B of
Evidence Act is present with the idea of proximity test. No definite
has been indicated and the expression `soon before' is not defined. A
reference to expression `soon before' used in Section 114. Illustration
the Evidence Act is relevant. It lays down that a Court may presume that
man who is in the possession of goods `soon after' the theft, is either
thief or has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can
within the term `soon before' is left to be determined by the Courts,
depending upon facts and circumstances of each case. Suffice, however,
indicate that the expression `soon before' would normally imply that the
interval should not be much between the concerned cruelty or harassment
and the death in question. There must be existence of a proximate and
link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and
become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
13. The Medical evidence is found in the statement of Dr. Rajendra
Kuinar Gupta. (PW-6). He stated that for conducting the postmortem of
dead body of the deceased, a Medical Board was constituted on 25-04-1988
and apart from him, Dr. O.P. Sharma and Dr. Avinash Sardana were
members of the Board. He further stated that dead body of the deceased
received on 23-04-1988 at about 8.00 p.m. and same was kept on ice and
post mortem of the dead body of the deceased was conducted on 25-04-1988 and on examination, following aspects were noticed:
1. That whole body was burnt.
2. That hairs of head of the deceased were totally burnt.
3. That outer portion of the skull had come out.
4. That there were nine bangles and one kada in the Left 14 forearm of
5. That bones of skull of the deceased were broken.
14. The doctors opined that cause of
death of the deceased was Asphyxia due to ante mortem burns. He has
proved the post mortem report Ex.P/3.
15. Thus, from the post mortem
report Ex.P/3 and by the statement of Dr. Rajendra Kumar Gupta (PW-6),
the fact that deceased died because of burns is very well established
and at the time of post mortem of the dead body of the deceased, her
skull bones were found broken.
16. In the case of burning the
fracture of skull is not a necessary corollary but in the present case
the skull bones were broken. Therefore, the fact remains that she was
killed before death. Therefore, the High Court was justified in holding
that the Sessions Judge erroneously concluded that it was a case of
17. Jasvinder Singh (PW-7) is an
independent witness who is neighbour of the accused. His evidence is of
considerable importance. According to him, while he was standing at the
place where the deceased was burning the witness told Ramdev for
extinguishing the fire upon which the appellant said that the deceased
has been burnt and let her burn and it is no use extinguishing the fire.
This statement has been rightly highlighted by the High Court to show
that her role as alleged by the prosecution has been established.
18. The principles which would
govern and regulate the hearing of appeal by the High Court against an
order of acquittal passed by the trial Court have been set out in
innumerable cases of this Court and in Ajit Savant Majagavi v. State
of Karnataka (AIR 1997 SC 3255) the following principles have been
1. In an appeal against an order of
acquittal, the High Court possesses all the powers and nothing less than
the powers it possesses while hearing an appeal against an order of
conviction.2. The High Court has the power to reconsider the whole
issue, reappraise the evidence and come to its own conclusion and
findings in place of the findings recorded by trial Court, if the said
findings are against the weight of the evidence on record, or in other
3. Before reversing the finding of
acquittal, the High Court has to consider each ground on which the order
of acquittal was based and to record its own reasons for not accepting
those grounds not subscribing to the view expressed by the trial court
that the accused is entitled to acquittal.
4. In reversing the finding of
acquittal, the High Court has to keep in view the fact that the
presumption of innocence is still available in favour of the accused and
the same stands fortified and strengthened by the order of acquittal
passed in his favour by the trial court.
5. If the High Court on a fresh
scrutiny and re-appraisal of the evidence and other material on record,
is of the opinion that there is another view which can be reasonably
taken, then the view which favours the accused should be adopted.
6. The High Court has also to keep
in mind that the trial court had the advantage of looking at the
demeanor of witnesses and observing their conduct in the Court
especially in the witness box.
7. The High Court has also to keep
in mind that even at that stage, the accused was entitled to benefit of
doubt. The doubt should be such as a reasonable person would honestly
and conscientiously entertain as to the guilt of the accused.
19. In this respect, the decisions
of this Court in Balbir Singh Vs. State of Punjab (AIR 1957 SC 216)
Ram Kumar Vs. State of Haryana (AIR 1995 SC 280), Bharwad
Jakshibhai Nagjibhai Vs. State of Gujarat (AIR 1995 SC 2505), Hari
Chand Vs. State of Delhi (AIR 1996 SC 1477), Raghbir Singh Vs. State
of Haryana (JT 2000 (5) SC 21), and Hari Ram Vs. State of
Rajasthan (JT 2000 (6) SC 254) may be seen.
Ashok Kumar Vs. State of Rajasthan (AIR 1990 SC 2134) this
Court has held as under :
"While caution is the watchword, in appeal against acquittal as the
trial Judge has occasion to watch demeanour of witnesses interference
should not be made merely because a different conclusion could have been
arrived at. Prudence demands restraint on mere probability or
possibility but in perversity or misreading interference is imperative
otherwise existence of power shall be rendered meaningless. In the
present case the order of the trial Court is vitiated as part from
deciding the case on irrelevant consideration the most serious error of
which he was guilty and which rendered the order infirm which could be
set aside by the High Court was that he misread the evidence and
indulged in conjectural inferences and surmises.
21. The evidence of PWs 1, 2, 3, 4
and 5 clearly shows the greed of the accused who was persistently
taunting and harassing the deceased for not having brought sufficient
dowry. Therefore, the High Court was justified in upsetting the order of
acquittal passed by the trial Court and directing her conviction. We
find no merit in this appeal which is accordingly dismissed.
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