Supreme Court Acquits Husband in Dowry Death Case: Holds Prosecution Failed to Prove Cruelty or Harassment “Soon Before Death,” Presumption Under Section 113-B Evidence Act Not Applicable Due to Contradictory Testimonies

In the cross-examination, PW-7 stated that police had recorded his statements on 3rd April 1998 and 7th April 1998, which were marked as exhibits DG and DH, respectively. He accepted that the allegation that the Accused used to maltreat his sister on account of insufficient dowry given in the marriage and having brought broken furniture is not found in both the police statements. He also stated that the demand for a refrigerator, a motorcycle, and a mixi does not find place in both statements. Therefore, the version of PW-7 in his examination-in-chief about the demands of dowry is a significant and relevant omission. Hence, this amounts to a contradiction. The public prosecutor claimed that the demand for a refrigerator, a motorcycle, and a mixi was mentioned in his third statement, which was recorded on 23rd June 1998. The third statement, recorded belatedly, obviously appears to be an afterthought. As regards his statement that the Accused used to give a beating to his sister, it seems that he got this information when he visited the matrimonial home of his sister three months after the marriage. It is a very vague allegation. Moreover, the witness has not stated that this was disclosed to him by his deceased sister. Assuming that what he has said is correct, this incident of beating must have taken place between 25th June 1996 till end of September 1996. Therefore, this incident did not happen soon before the death. It is not his case that when the deceased allegedly visited his house nine to ten days before the incident, she complained about any cruelty or any harassment. Thus, none of the three statements of the witnesses contain any specific instances of cruelty or harassment.

{Para 16}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1076 of 2014

Decided On: 31.01.2025

Karan Singh Vs. State of Haryana

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka,  and Ujjal Bhuyan, , JJ.

Author:Abhay Shreeniwas Oka, J.

 Citation: 2025 INSC 133,MANU/SC/0132/2025.

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What are essential ingredients of offence of dowry death?

 The essential ingredients of dowry death under Indian criminal law remain consistent between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), with Section 304B of IPC now replaced by Section 80 of BNS.

Essential Ingredients of Dowry Death

The following four essential ingredients must be established to prove dowry death under both legal frameworks:

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Whether demand of money for construction of a house can be treated as a demand for dowry?

 In the light of the above provision that defines the word “dowry” and takes in its ambit any kind of property or valuable security, in our opinion, the High Court fell into an error by holding that the demand of money for construction of a house cannot be treated as a dowry demand. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.”

[emphasis added] {Para 12}

Supreme Court

CHIEF JUSTICE OF INDIA N. V. RAMANA JUSTICE A. S. BOPANNA JUSTICE HIMA KOHLI

STATE OF MADHYA PRADESH Vs. JOGENDRA & ANR.

CRIMINAL APPEAL NO. 190 OF 2012

11th January 2022

Author: Hima Kohli, J.

Citation:  2022 ALL SCR (ONLINE) 29

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Supreme Court: Precaution to be taken by the court while suspending the sentence of a convict of dowry death

Section 389 provides that, pending any appeal by a convicted

person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against, be suspended and, also, if he is in confinement, that he be released on bail. 

27. As the discretion under Section 389(1) is to be exercised

judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal.

31. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr (2004) 7 SCC 528, this Court held:-

“11. The law in regard to grant or refusal of bail is very well

settled. The Court granting bail should exercise its

discretion in a judicious manner and not as a matter of

course. Though at the stage of granting bail a detailed

examination of evidence and elaborate documentation of

the merits of the case need not be undertaken, there is a

need to indicate in such orders reasons for prima facie

concluding why bail was being granted particularly where

the accused is charged of having committed a serious

offence. Any order devoid of such reasons would suffer from

non-application of mind.”

36. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under  Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra).However, in case of post conviction bail, by suspension of  operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 520 OF 2020

PREET PAL SINGH  Vs  THE STATE OF UTTAR PRADESH 

Indira Banerjee, J.

Dated: AUGUST 14, 2020

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Whether court can convict accused for an offence U/S 306 of IPC if he was charged under S 498A and 304B of IPC?

 Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word "cruelty" as mentioned in the Explanation below Section 113A of the Evidence act has been given the same meaning as contained in the Explanation below Section 498A, IPC. On the fact found, 'the wilful' conduct of the husband in forcing the deceased to part with her land which she had received in marriage as "stridhana" and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of 'dowry death' punishable under Section 304B, IPC is not found liable to be disturbed.

20. The learned counsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be convicted under the said Section.

21. From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 498A and Section 304B of IPC. 

22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence.

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 1457 of 1995

Decided On: 25.10.2002

 K. Prema S. Rao  Vs.  Yadla Srinivasa Rao and Ors.

Hon'ble Judges/Coram:

M.B. Shah, K.G. Balakrishnan and D.M. Dharmadhikari, JJ.

Citation: MANU/SC/0890/2002,(2003) 1 SCC 217

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Whether court can convict accused of an offence U/S 304B of IPC if he was charged only under S 302 of IPC?

Be that as it may. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of section 304B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.{Para 14}

15. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits "to convict the accused" of the offence of which he is shown to have committed though he was not charged with it." But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.

16. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The Section permits the court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different, situation. "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."

17. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.

18. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "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."

19. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

22. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." (emphasis supplied)

23. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

24. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment 1977(1) A E R 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

25. One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audi alteram partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

26. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304B IPC without the same being included as a count in the charge Section 304B has been brought on the statute book on 9-11-1986 as a package along with Section 113B of the Evidence Act. Section 304B(1) IPC reads thus:

"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."

27. In the Explanation to the Section it is said that the word "dowry" shall be understood as defined in the Dowry Prohibition Act, 1961.

28. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death."

29. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.

30. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death "the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc." When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

31. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

32. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

33. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

34. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.

35. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the count affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

36. As the appellant was convicted by the High Court under Section 304B IPC, without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. 

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 907 of 1998

Decided On: 24.01.2001

Shamnsaheb M. Multtani Vs  State of Karnataka

Hon'ble Judges/Coram:

K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.

Citation: Citation : AIR 2001 SC 921,(2001) 2 SCC 577, MANU/SC/0047/2001

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Whether husband can be prosecuted under S 304B and S 498A of IPC even if he is not legally married with prosecutrix?

Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B Indian Penal Code. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 25 of 2004

Decided On: 08.01.2004

Reema Aggarwal  Vs.  Anupam and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: MANU/SC/0022/2004,(2004)3 SCC 199

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Supreme Court: Accused prosecuted for an offence U/S 304(B) of IPC can get default bail only on completion of 90 days

 In a case involving offence punishable under Section 304(B) is the period for filing challan 90 days or 60 days?

8. A bare reading of Section 304(B) IPC shows that whoever commits "dowry death" in terms of Section 304(B) IPC shall be punished with an imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment for life can be awarded in respect of an offence punishable under Section 304(B) IPC. Proviso to Sub-section (2) of Section 167 consists of three parts. The first part relates to power of Magistrate to authorise detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorize detention of the accused in custody, under this paragraph [meaning Sub-section (2)(a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable under death, imprisonment for life or imprisonment for a terms of not less than 10 years (ii) 60 days where the investigation relates to any other offences. The period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life; or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304(B) is an offence "punishable" with imprisonment for life.  A bare reading of Rajiv Chaudhary's case (supra) shows that the same related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This Court held that the expression "not less than" means that the imprisonment should be 10 years or more to attract 90 days period. In that context it was said that for the purpose of Clause (i) of proviso (a) of Section 167(2) Cr.PC the imprisonment should be for a clear period of 10 years or more.

The position is different in respect of the offence punishable under Section 304(B) IPC. In case of Section 304(B) the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is "punishable". The word "punishable" as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.

10. While dealing with a case relating to Punjab Borstal Act, 1926, this Court held that a person convicted under Section 302 IPC and sentenced to life imprisonment is not entitled to benefit of Section 5 of the said Act as offence of murder is punishable with death. (See Sube Singh and Ors. v. State of Haryana and Ors. MANU/SC/0515/1988 : 1989CriLJ297 .

11. Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court's view in the impugned order that permissible period of filing of challan is 90 days is the correct view.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 757 of 2006

Decided On: 13.07.2006

Bhupinder Singh  Vs.  Jarnail Singh and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and S.H. Kapadia, JJ.

Citation: (2006) 6 SCC 277

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What is distinction between 304-B (Dowry death) and 498-A IPC?

There is a succinct distinction between the offences under Section
304-B and 498-A IPC. For an offence being brought within the purview
of dowry death, it is imperative on part of the prosecution to establish
that the death of the woman is caused within seven years of her marriage
and only when it is established that before her death she was subjected to
harassment or cruelty by her husband or any relative for or in connection
with the demand for dowry. However, in case of Section 498-A IPC, the
husband or the relative of the husband who subject a woman to cruelty
are liable for punishment and the meaning of the term ‘cruelty’ is set out
in clauses (a) and (b) to Explanation appended to the said section, which
contemplate to mutually exclusive contingencies. Thus, Section 498-A
and Section 304-B IPC make out two distinct offences. The cruelty
defined in Explanation to Section 498-A IPC may be the same which is
contemplated under Section 304-B IPC. However, under Section 498-A
IPC cruelty itself is made punishable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.503 OF 2002

Mandakini Balasaheb Kalbhor  Vs. The State of Maharashtra 

CORAM : PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI DANGRE, J.

PRONOUNCED ON : 4th SEPTEMBER, 2019.
JUDGMENT:- [Per: Smt. Bharati Dangre, J.]

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Leading Judgment on dowry death

 In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [MANU/SC/0296/2000 : (2000) 5 SCC 207: 2000 SCC (Cri.) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222-23, para 15)

15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.

22. In another recent judgment in Sher Singh v. State of Haryana MANU/SC/0022/2015 : 2015 (1) SCALE 250, this Court said:

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 Indian Penal Code. 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 of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. (at page 262)

23. 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 304B 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 304B.

24. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana MANU/SC/0364/2014 : 2014 (5) SCALE 641 in which the law was stated thus:

The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case. (at page 646)

25. We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2321 of 2009

Decided On: 26.02.2015

 Rajinder Singh Vs. State of Punjab

Hon'ble Judges/Coram:

T.S. Thakur, Rohinton Fali Nariman and Prafulla C. Pant, JJ.

Citation: AIR 2015 SC 1359

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When unnatural death of married woman would not amount to dowry death?

 In Pushpender Singh v. State, Criminal Appeal No. 160/2015, (2015) SCC OnLine Del 12748, decided by a division bench (of which I was a member) on 12.10.2015, similar questions were examined. After referring to the provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act, and various judgments thereupon, it was observed thus:

“102. Broad principles emerging from above noted case law, to the extent germane to the issues raised before us, may be culled out as under:—

(i) The death of a married woman within seven years of the marriage, otherwise than under normal circumstances must result in a serious attempt on the part of the investigating agency, and the court, to inquire if it is a case of culpable homicide;

(ii) If the evidence shows the husband or any of his relatives to be the actual or direct participant in the commission of the acts resulting in the death, the trial must proceed on the charge of culpable homicide;

(iii) If the evidence is forthcoming to show that the unnatural death of the married woman within seven years of her marriage was preceded “soon before” her death by she being subjected to cruelty or harassment for or in connection with demand for dowry by the husband or any of his relatives, the charge of “dowry death” is to be invoked as an “alternative charge”, or even as a single or main charge against others not implicated by reason of abetment, conspiracy etc.

(iv) The offence of “dowry death” is neither a substitute, nor “minor offence”, nor “included” in the offence of “culpable homicide”;

(v) To bring home the charge of “culpable homicide”, the prosecution must prove the accused to have intentionally committed the act causing death or causing bodily injury resulting in death. In contrast, to bring home the charge of “dowry death”, direct nexus on the part of the accused with the act(s) causing death, or resulting in bodily injury causing death, need not be shown. The prosecution needs to prove only the fact of death being otherwise than under normal circumstances (to put it simply, it being an unnatural death), coupled with the fact that the deceased (necessarily a married woman) had been subjected to cruelty or harassment for or in connection with the demands for dowry by the husband, or any of his relatives, the death having occurred within seven years of the marriage. Upon such proof, the Court is bound to presume that the husband, or the relative, who is party to the cruelty or harassment of the specified nature is responsible for the “dowry death”;

(vi) For the charge of “dowry death”, the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the acts leading to the death;

(vii) To bring home a charge of dowry death, there must be “proximity” or a “live link” between the cruelty and harassment based on dowry demands and the consequential death leading to inference that said conduct was indulged in “soon before” the death;

(viii) The past events of cruelty or harassment, they not having become stale, continue to be relevant for raising the presumption, if the evidence shows continuity of the incriminating conduct proximate enough in terms of time to the unnatural death, even if interspersed by tentative efforts at resolution or compromise;

(ix) A case of unnatural death of the married woman would not amount to “dowry death”, if it is shown to have occurred on account of an accident or as a result of acts of commission or omission on the part of a third person, i.e a person other than the husband or any of his relatives, or for reasons not connected with demands for dowry; and,

(x) The accused against whom presumption is raised may dispel its effect by showing that he had no hand at all, in the death, and he may do so either by showing that the death was accidental or brought about by another person unconnected with the cruelty or harassment relating to the demands for dowry.”

In the High Court of Delhi at New Delhi

(Before R.K Gauba, J.)

Shiv Ram & Ors. v. State of Delhi

 Citation: 2018 SCC OnLine Del 13127

Crl. A. 496/2002

Decided on December 7, 2018

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Short notes on Dowry Death And S 498A of IPC

In 1986, a new section,S 304B was inserted into IPC to provide for stringent punishment in respect of dowry death.

Ingredients of S 304B

It is clear that before this offence is said to have been committed, the following conditions must be satisfied:

1) The wife should have died because of burns or any bodily injury;

2) Her death should have occurred otherwise than under normal circumstances.

3)Such death should have taken place within seven years from the date of her marriage.

4)Soon before her death, she should have been subjected to cruelty or harassment by her husband or any of his relatives.

5) Such cruelty or harassment should be for, or in connection with any demand for dowry.

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What is dowry?

For the purpose of S 304B, the word dowry has the same meaning as S 2 of Dowry prohibition Act,which defines the word as follows:

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 parents of either party to a marriage or by any other person,to either party to the marriage or to any other person-

at, before or any time after the marriage in connection with the marriage of said parties.

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Whether demand of property in connection with marriage amounts to dowry demand?

Learned counsel for the appellants heavily relied upon the following observations made by this Court in the case of Appasaheb1:

A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.

The above observations of this Court must be understood in the context of the case. That was a case wherein the prosecution evidence did not show 'any demand for dowry' as defined in Section 2 of the 1961 Act. The allegation to the effect that the deceased was asked to bring money for domestic expenses and for purchasing manure in the facts of the case was not found sufficient to be covered by the 'demand for dowry'. Appasaheb1 cannot be read to be laying down an absolute proposition that a demand for money or some property or valuable security on account of some business or financial requirement could not be termed as 'demand for dowry'. It was in the facts of the case that it was held so. If a demand for property or valuable security, directly or indirectly, has a nexus with marriage, in our opinion, such demand would constitute 'demand for dowry'; the cause or reason for such demand being immaterial.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 831 of 2006

Decided On: 08.02.2011

 Bachni Devi  Vs. State of Haryana through Secretary, 

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

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Whether accused can be punished for major offence after being charged with minor offence?

Section 215 Cr.P.C. provides that omission to frame charge will not be treated as material unless it has resulted in any failure of justice by accused being misled by such error or omission. Such failure of justice includes violation of legal rights of accused. In judging a question of prejudice, the court must act with broad vision and look to the substance of the case and main concern should be to ensure as to whether the accused knew what he was being tried for and whether the facts established were explained to him fairly and whether the accused had been given full and fair opportunity to defend him. Provisions of Section 222(1) CrPC provides that when accused is charged with one offence, he may be convicted for other minor offence of similar nature. The question remains to be considered is as to whether accused can be punished for major offence after being charged with minor offence, if there is no prejudice and quantum of punishment is not more than that of minor offence. 

18. In this matter, the accused-appellant was charged for offence under Section 304-B I.P.C., in which maximum punishment was imprisonment for life, but he was punished for the charge under Section 302 I.P.C., which was a major offence, in which maximum punishment is death sentence. Apart from it, the nature of both the offences are different and law of evidence relating to both the offences are entirely different. Therefore, it is immaterial that in present case, this finding of learned Sessions Judge may be correct that having knowledge of facts of the charge, nature of evidences adduced. In spite of the understanding of accused to defend the charge of murder, the questions put to him under Section 313 Cr.P.C. regarding offence of murder and opportunity to adduce evidence apparently for the murder charge, there is always a possibility that accused-appellant was not heard and afforded opportunity to defend his case for major offence of Section 302 I.P.C. Because of not being charged for the same. Therefore, considering the verdict of Apex Court in Shamnsaheb M. Multtani's case (supra), as above, this appeal deserves to be allowed for him only. 

ALLAHABAD HIGH COURT

 JAIL APPEAL No. - 4846 of 2011 

Tejveer @ Pappi V  State 

Hon'ble Arvind Kumar Tripathi, J. 

Hon'ble Pramod Kumar Srivastava, J. 

Citation: 2017 CRLJ(NOC) 144 ALL

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When prosecution U/S 304B and S 498A of IPC is liable to be quashed on ground of territorial jurisdiction?

In the instant case, the question of territorial jurisdiction
was just one of the grounds for quashing the proceedings
along with the other grounds and, therefore, the High Court
should have examined whether the case was fit to be quashed
on other grounds or not. Nandini Sharma committed suicide
in her matrimonial home at Ambala. The information with
regard to the said incident was forwarded to the Police Station
Mulana, District Ambala. On 22.09.1999, post mortem on the
body was conducted and the case was closed by submitting a
final report before the SDM stating that there was no sign of
foul play in the occurrence. Since the appellant No. 1 was a
Flying Officer at the relevant time, a Court of Inquiry (CoI) was
also convened to investigate into the alleged role of the
appellant No. 1 herein which was finally closed on 25.07.2000.
None of the family members of the deceased raised any doubt
on the death of Nandini or named anyone in the appellant’s
family especially when the father, brother and other relatives
of the deceased were present at Ambala during the period
when the investigation was carried on. On a correct
appreciation of record, we do not find even a whisper about
the cruelty meted out to her soon before her death. In fact, it
is on record that the appellant No. 1 visited Durg several times
after the death of Nandini and stayed with in-laws.
15) The territorial jurisdiction of a court with regard to a
criminal offence would be decided on the basis of the place of
occurrence of the incident. In the instant case, the suicide
was committed at Ambala. The Ambala police closed the case
after fulfilling the requirements of Section 174 of the Code
holding that there was no foul play in the incident and also
there was no requirement of lodging FIR under Section 154 as
none of the family members of the deceased raised any
suspicion over the death even though the death was
committed within seven years of marriage. Also, there is no
evidence of it being a continuing offence. Hence, the offence
alleged cannot be said to have been committed wholly or partly
within the local jurisdiction of the Magistrate’s Court at Durg.
Prima facie, none of the ingredients constituting the offence
can be said to have occurred within the local jurisdiction of
that Court.
16) In the case on hand, as per the materials on record, in
Crime No. 194 of 2005, charge sheet has been filed and the
Judicial Magistrate First Class, Durg has taken cognizance of
the proceedings. In the present fact situation, we are of the
considered opinion that the Court at Durg has no territorial
jurisdiction to try the case and the proceedings are liable to be
quashed on the ground of lack of territorial jurisdiction since
the entire cause of action for the alleged offence had
purportedly arisen in the city of Ambala.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 775 OF 2013
Manoj Kumar Sharma & Ors. V State of Chhattisgarh & Anr. 
Dated:AUGUST 23, 2016.
Citation: AIR 2016 SC 3930,(2016) 9 SCC1

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How to interprete word "shown" in used Section 304B of IPC?(Dowry death)

 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" inSection 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, 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 thatSection 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 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.1

Supreme Court of India

Sher Singh @ Partapa vs State Of Haryana on 9 January, 2015

Bench: Vikramajit Sen, Kurian Joseph

Citation; 2015 ALLMR(cri)2817 SC

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Interpretation of word "soon" before death under S 304B of IPC(dowry death)

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 of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. 

Supreme Court of India

Sher Singh @ Partapa vs State Of Haryana on 9 January, 2015

Bench: Vikramajit Sen, Kurian Joseph

 Citation;(2015) 3 SCC 724

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