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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.     636     of     2009      

Devinder @ Kala Ram & Ors.                         …… Appellants

Versus

The State of Haryana                                    ….. Respondent                   

J     U     D     G     M     E     N     T   

A.     K.     PATNAIK,     J.   

This is an appeal by way of special leave under Article  

136 of the Constitution of India against the judgment dated  

28.02.2008 of the High Court of Punjab and Haryana in  

Criminal Appeal No.157-SB of 1997.

2.   The facts very briefly are that an FIR was lodged by  

Chhotu Ram (the informant) in P.S. Gannaur on 07.08.1992  

at 4.45 P.M.  In the FIR, the informant stated thus: He got  

his daughter Krishna married to Devinder @ Kala Ram of  

village Rajpur on 19.05.1989.  From after a month of the

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marriage, Krishna kept coming to the house of the  

informant at village Tihar Malik complaining of demands of  

dowry and harassment by the members of the family of  

Devinder.  On 06.08.1992, Jai Beer Singh informed the  

informant that Krishna was dead.  The informant came  

straightway to the hospital at Sonepat and found Krishna  

dead because of burns.  A case was registered in P.S.  

Gannaur under Section 304B/341 of the Indian Penal Code  

(for short ‘the IPC’).  Investigation was conducted and  

charge-sheet was filed against Devinder, his mother Chand  

Kaur and his brother’s wife Roshni.  The appellants were  

put on trial in the Court of learned Sessions Judge,  

Sonepat.  At the trial, amongst other witnesses the  

informant Chottu Ram was examined as PW-2, his wife  

Smt. Shanti was examined as PW-3 and his two sons,  

namely, Balraj and Jai Beer, were examined as PW-4 and  

PW-5 respectively.  By the judgment dated 06.02.1997, the  

Sessions Court held all the three appellants guilty of the  

offences under Sections 498A as well as 304B, IPC.  By  

order dated 08.02.1997, the Sessions Court sentenced them  

to undergo rigorous imprisonment for a period of three  

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years each and to pay a fine of Rs.1,000/- each and in  

default to undergo rigorous imprisonment for one year for  

the offence under Section 498A, IPC, and for ten years  

rigorous imprisonment and a fine of Rs.2,000/- each and in  

default to undergo rigorous imprisonment for two years for  

the offence under Section 304B, IPC, and directed that the  

sentences shall run concurrently.  Aggrieved, the appellants  

filed Criminal Appeal No.157-SB of 1997 before the High  

Court, but by the impugned order the High Court  

maintained the convictions and sentences under Sections  

498A and 304B, IPC.

3. At the hearing of this appeal, learned counsel for the  

appellants submitted that Dr. B.D. Chaudhary, the  

Medical Officer of the Civil Hospital, who was examined  

as PW-7, has said in his evidence that Krishna was  

brought to the hospital by her husband Kala Ram and  

there was smell of kerosene in the body of Krishna when  

she was brought to the hospital.  He also referred to Ext.  

DD, which is the bed-head ticket pertaining to Krishna in  

the hospital in which PW-7 has endorsed that the patient  

had told him that she has sustained the burns while  

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cooking meals on a stove.  He submitted that Devinder  

has stated in his statement under Section 313 of the  

Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’)  

that on the day of the alleged occurrence Krishna caught  

fire while she was preparing tea and he extinguished the  

fire and as a result he received burn injuries and he  

immediately brought her to the hospital.  He submitted  

that this is, therefore, a case of the deceased getting  

burnt by kerosene from a stove and the appellant no.1  

had rushed the deceased to the hospital with a view to  

save her and this is not a case of an offence under  

Section 304B, IPC.  

4. Learned counsel for the appellants next submitted that  

PW-1, PW-2, PW-3, PW-4 and PW-5 are all near relatives  

of the deceased and are interested witnesses and their  

evidence on the demands of dowry and harassment and  

cruelty to the deceased ought not to have been believed  

by the Sessions Court and the High Court.  He argued  

that the evidence of these interested witnesses moreover  

are only bald statements and are not supported by any  

material.  He submitted that in the absence of any  

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material produced to show that the deceased was  

subjected to electric shock, the Trial Court and the High  

Court could not have held that the prosecution has  

proved beyond reasonable doubt that the appellants had  

subjected the deceased to cruelty soon before her death.  

He relied on the decision of this Court in Durga Prasad &  

Anr. v. State of M.P. [2010 CRL. L. J. 3419] in which it  

has been held that cruelty or harassment soon before  

death must be proved not just by bald statements, but by  

concrete evidence to establish the offences under Section  

304B and Section 498A, IPC.    He submitted that  

although the prosecution cited Umed Singh, Tara Chand,  

Randhir Singh and Dariya Singh as its witnesses in the  

charge-sheet, these witnesses have not been examined in  

Court and, thus, an adverse inference should not be  

drawn by the Court against the prosecution.   

5. Learned counsel for the appellants finally submitted that  

the appellant no.3, Roshni, was the wife of the brother of  

Devinder, namely, Attar Singh, and the case of the  

defence before the Sessions Court was that Roshni lived  

separately with her husband Attar Singh in another  

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house.  He submitted that PW-8, the Investigating Officer,  

has admitted in his evidence that he had come to know  

that Roshni had been living separately with her husband  

in another house.  He argued that there was absolutely  

no evidence before the Court that Roshni, appellant no.3,  

was living in the family house of the appellant nos. 1 and  

2 and she has been falsely implicated as an accused in  

this case.

6. In reply, learned counsel for the State submitted that the  

High Court has held in the impugned judgment that PW-

7 before making any endorsement was required to certify  

that Krishna was fit and conscious to make a statement,  

but PW-7, while making the endorsement in Ext. DD that  

the patient herself told her that she sustained burn  

injuries while cooking meals on a stove, has not given  

this certificate.  He submitted that the High Court has,  

therefore, held that the endorsement was wrongly made  

so as to ensure that the truth did not come to the  

surface.  He submitted that the High Court has further  

taken note of the scaled map (Ext. PC) of the place where  

Krishna was preparing tea on the stove which has an  

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open courtyard and had she caught fire while preparing  

tea on the stove in the open courtyard, she would have  

certainly run for safety and the flames of the fire would  

not have engulfed her to such an extent as to cause 95%  

burns.  He vehemently argued that Section 113B of the  

Indian Evidence Act, 1872 is clear that when the  

question as to whether a person has committed 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.  He argued that in  

this case, as there was sufficient evidence brought before  

the Court through PW-2 and PW-3 that Krishna was  

being subjected to cruelty or harassment for and in  

connection with demand for dowry, there is a  

presumption of dowry death caused by the appellants  

and this presumption has not been rebutted by the  

appellants.  He submitted that the Trial Court and the  

High Court are, therefore, right in holding the appellants  

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guilty of the offences under Section 498A as well as  

Section 304B, IPC.    

7. The first question that we have to decide is whether the  

Trial Court and the High Court are right in convicting the  

appellants under Section 498A of IPC.  We have gone  

through the evidence of PW-2, PW-3, PW-4 and PW-5 and  

we find that the evidence therein fully support the finding  

of the High Court that from a few days after marriage till  

her death, the deceased was subjected to harassment in  

connection with the demand of dowry by all the three  

appellants.  We find from the evidence of PW-2, PW-3,  

PW-4 and PW-5 that the deceased was subjected to  

harassment by the appellants in connection with  

demands of TV, sofa set, electric press, sewing machine,  

tables and chairs, utensils and cash of Rs.20,000/- for  

recruitment of Devinder and Rs.15,000/- for construction  

of house.  In the lengthy cross-examinations of PW-2,  

PW-3, PW-4 and PW-5, their evidence with regard to such  

demands of dowry and harassment has not been shaken.  

Moreover, in this case, there is evidence to show that  

Roshni, the appellant No.3, also caused harassment to  

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the deceased in connection with demand of dowry.  

Therefore, the fact that she was living separately with her  

husband even if true, does not make her not liable for the  

offence under Section 498-A, IPC.  Hence, the Sessions  

Court and the High Court, in our considered opinion,  

have rightly held the appellants guilty of the offence  

under Section 498A, IPC.

8. The second question that we have to decide is whether  

the Sessions Court and the High Court were right in  

holding the appellants guilty of the offence under Section  

304B, IPC.  Section 304B of the IPC and Section 113B of  

the Indian Evidence Act,1872 are to be read together and  

are quoted hereinbelow:

“304B. Dowry death.—(1) Where the death of  a woman is caused by any burns or bodily  injury or occurs otherwise than under normal  circumstances within seven years of her  marriage and it is shown that soon before her  death she was subjected to cruelty or  harassment by her husband or any relative of  her husband for, or in connection with, any  demand for dowry, such death shall be called  “dowry death”, and such husband or relative  shall be deemed to have caused her death.

Explanation.—For the purpose of this sub- section, “dowry”  shall have the same meaning  

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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 extent to imprisonment for life.”

“113B. Presumption as to dowry death.— When the question is whether a person has  committed the dowry death of a woman and it  is shown that soon before her death such  woman has been subjected by such person to  cruelty or harassment for, or in connection  with, any demand for dowry, the Court shall  presume that such person had caused the  dowry death.

Explanation.—For the purposes of this section,  “dowry death” shall have the same meaning as  in section 304B of the Indian Penal Code (45 of  1860).”

9. On a plain reading of Section 304B of the IPC, it is clear  

that where the death of a woman is caused by any burns  

or bodily injury 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 husband shall be deemed to have caused  

dowry death.  Thus, where death of a woman has been  

caused by burns as in the present case, the prosecution  

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has to show: (i) that such death has taken place within  

seven years of her marriage and (ii) that soon before her  

death she has been subjected to cruelty or harassment  

by her husband or any relative of her husband for, or in  

connection with, any demand for dowry.  Once these two  

facts are established by the prosecution, the husband or  

the relative shall be “deemed”  to have caused the dowry  

death of the woman.  The word “deemed”  in Section  

304B, IPC, however, does not create a legal fiction but  

creates a presumption that the husband or relative of the  

husband has caused dowry death.  

10.    Section 113B of the Indian Evidence Act, 1872 also  

provides that once it is shown that soon before her death  

a 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.  The expression “shall presume”  

has been defined in Section 4 of the Indian Evidence Act,  

1872, relevant part of which is extracted hereinbelow:

“’Shall presume’.—Whenever it is directed by  this Act that the Court shall presume a fact, it  

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shall regard such fact as proved, unless and  until it is disproved.”    

Thus, Section 113B read with Section 4 of the Indian  

Evidence Act, 1872 would mean that unless and until it is  

proved otherwise, the Court shall hold that a person has  

caused dowry death of a woman if it is established before  

the Court 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.   

11. Section 3 of the Indian Evidence Act, 1872 states that  

unless a contrary intention appears from the context, the  

word “disproved” would mean a fact is said to be disproved  

when, after considering the matters before it, the Court  

either believes that it does not exist, or considers its non-

existence so probable that a prudent man ought, under the  

circumstances of the particular case, to act upon the  

supposition that it does not exit.  Thus, if after considering  

the matters before it, the Court believes that the husband or  

the relative of the husband has not caused dowry death, the  

Court cannot convict such person or husband for dowry  

death under Section 304B of the IPC.  Section 304B, IPC,  

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and Section 113B of the Indian Evidence Act, 1872, in other  

words, only provide what the Court shall presume if the  

ingredients of the provisions are satisfied, but if the  

evidence in any case is such that the presumptions stand  

rebutted, the Court cannot hold that the accused was guilty  

and was punishable for dowry death.   

12.  In the facts of the present case, we find that PW-7, the  

Medical Officer of the Civil Hospital, examined the case of  

the deceased on 06.08.1992 at 6.30 A.M. and he has clearly  

stated in his evidence that on examination she was  

conscious and that there were superficial to deep burns all  

over the body except some areas on feet, face and perineum  

and there was smell of kerosene on her body.  He also  

stated in his evidence that the deceased was brought to the  

hospital by her husband Kala Ram (appellant no.1).  He has  

proved the bed-head ticket pertaining to the deceased in the  

hospital (Ext. DD) as well as his endorsement at Point ‘A’ on  

Ext. DD, from which it is clear that he was told by the  

patient herself that she sustained burns while cooking  

meals on a stove.  This statement of the deceased recorded  

by PWs is relevant under Section 32 of the Indian Evidence  

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Act, 1872 which provides that statements, written or verbal,  

of relevant facts made by a person who is dead, are  

themselves relevant facts when the statement is made by a  

person as to the cause of his death, or as to any of the  

circumstances of the transaction which resulted in his  

death, in cases in which the cause of that person’s death  

comes into question.  Moreover, the appellant no.1 in his  

statement under Section 313, Cr.P.C., has stated:  

“On that day of the alleged occurrence  Krishna deceased was preparing tea and  incidentally caught fire.  I extinguished the  fire, as a result of which I received burn  injuries and immediately brought her to  General Hospital, Sonepat, and on the advice  of the M.O. I was taking her for better  treatment to Delhi but unfortunately she  died.”  

13.    The evidence of PW-7 and the endorsement marked  

‘A’  in Ext. DD are evidence produced by the prosecution  

before the Court and such evidence produced by the  

prosecution before the Court supports the explanation of  

the appellant no.1 in his statement under section 313,  

Cr.P.C., that the deceased caught fire while she was  

preparing tea on the stove.  The presumption in Section  

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304B of the IPC and Section 113B of the Indian Evidence  

Act, 1872 that they had caused dowry death of the  

deceased, thus, stood rebutted by the evidence in this  

case.  We find that the High Court has disbelieved the  

evidence of PW-7 and the endorsement marked ‘A’ in Ext.  

DD merely on suspicion and has ignored the relevant  

provisions of the Indian Evidence Act, 1872, which we  

have discussed.

14. In the result, we allow this appeal in part, set  

aside the conviction and sentences for the offence under  

Section 304B, IPC, and sustain the conviction and  

sentences under Section 498A, IPC.  The appellant no.2 is  

already on bail.  If appellant nos.1 and 3 have already  

undergone the sentence under Section 498A, IPC, they  

shall be released forthwith.                 

.……………………….J.                                                                 (A. K. Patnaik)

………………………..J.                                                                 (Swatanter  Kumar) New Delhi, October 18, 2012.    

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