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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1097/2012

JAGDISH & ORS.                           ..Appellants

Versus

STATE OF UTTARANCHAL             ..Respondent

J U D G M E N T

R. BANUMATHI, J  .   

This  appeal  arises out of  judgment dated 29.12.2011  

passed  by  High  Court  of  Uttarakhand  in  Criminal  Appeal  

No.215/2002,  in  and  by  which,  the  High  Court  confirmed  the  

conviction of the appellants under Sections 304B,  498A and 201  

IPC and the sentence of life imprisonment imposed on each of  

them.

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2. Briefly stated, case of the prosecution is that marriage  

between complainant–Meharchand’s daughter Seema (deceased)  

and accused- Late Chandrahas was solemnized in the month of  

May 1991.    As per  his  capacity and status,  PW-1-complainant  

gave  sufficient  dowry  and  articles.   But  within  few  days  of  

marriage, Chandrahas alongwith his parents and relatives, started  

harassing  Seema  on  account  of  non-fulfillment  of  demand  of  

dowry.  PW-1- father of the deceased, having poor resources, was  

unable to meet these ever increasing demands. PW-1, repeatedly  

requested Chandrahas and his family members not to harass his  

daughter, but they remained firm in their demands of motorcycle  

and dowry amount.  PW-1 could collect only meagre amount of  

Rs.2,000/- and gave it to the family of Chandrahas and requested  

them not to ill-treat his daughter.

3. Thereafter,  in August 1994,  the deceased after being  

severely beaten, was ousted from her matrimonial home and she  

was told that she should only return with Rs.20,000/- cash and a  

Hero Honda motorcycle and Seema  came to her father’s house.  

On seeing her condition, PW-1 took the deceased to Saharanpur  

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District Hospital, where she was medically examined and treated  

for  her  injuries.   On  4.9.1994,  with  the  intervention  of  the  

Panchayat and assurances on the part of Chandrahas (husband)  

and his  family,  the  parties  arrived  at  a  settlement  and it  was  

decided that  Seema was to  be  taken back to  her  matrimonial  

house  and  that  they  will  not  torture  Seema.  Based  on  the  

settlement and the assurance thereon,  PW-1 left  Seema in her  

matrimonial  house.   However,  after  one  month,  the  deceased  

again  wrote  a  letter  to  her  father  describing  the  harassment  

meted  out  to  her.  PW-1  was  unable  to  visit  his  daughter  

immediately on account of the then ongoing work of crop cutting.  

On 12.5.1995, Subhash Chandra (PW-4) came to the house of PW-

1–Meharchand and informed him that Seema had been killed by  

her in-laws and burnt to death.   Hearing this, PW-1–Meharchand  

alongwith some villagers went to Churiyala–Chandrahas’s village;  

but  there  was  none  at  the  house.   On  being  informed  of  the  

incident by the villagers, PW-1 reached the cremation ground and  

found the pyre still burning.    

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4. PW-1–Meharchand lodged a complaint at Police Station  

Bhagwanpur,  Village Churiyala, District Haridwar, on the basis of  

which FIR No. 42/95 for the offences under Sections 498A, 304B  

IPC  and  Sections  3  and  4  of  the  Dowry  Prohibition  Act  was  

registered against all the persons namely Chandrahas–Husband,  

Sukhbir-father-in-law, Jagdish-elder brother of Sukhbir,  Yogendra  

(jeth)-  elder  brother  of  Chandrahas,  Chandraprakash-Dewar  

(brother-in-law),  Pushpa-mother-in-law and Savita (Jethani)- wife  

of  Yogendra.   After  due  investigation,  chargesheet  was  filed  

against all of them.

5. To bring home the guilt of the accused, prosecution has  

examined eight witnesses and exhibited documents and material  

objects.    Sessions  Court  found all  the accused persons  guilty  

under Sections 304B, 498A and 201 IPC and sentenced each of  

the accused to undergo life  imprisonment under Section 304B,  

two  years  rigorous  imprisonment  under  Section  498A and  two  

years  rigorous  imprisonment  under  Section  201  IPC.   Being  

aggrieved, appellants Jagdish–elder brother of Sukhbir, Yogendra–

elder brother of Chandrahas,  and Savita–wife of Yogendra filed  

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an appeal before the High Court of Uttarakhand.  Husband of the  

deceased-Chandrahas  and  his  parents,  namely,  Sukhbir  and  

Pushpa have all passed away and the case against them abated.  

High Court confirmed the conviction and sentence imposed on the  

accused-appellants and dismissed the appeal.  This appeal assails  

the  correctness  of  the  judgment  of  the  High  Court  affirming  

appellants’ conviction and the sentence of imprisonment imposed  

on them.

6. Mr.  V.  Giri  learned Senior  Counsel  for  the  appellants  

contended that to raise presumption under Section 113B of the  

Evidence Act, prosecution has to prove that there was demand of  

dowry and that  cruelty  and harassment  was meted out  to  the  

deceased ‘soon before her death’.   It was submitted that none of  

the witnesses deposed about the involvement of the appellants  

and  there  is  no  reliable  evidence  to  establish  the  essential  

ingredients of Section 304B IPC or to justify invoking presumption  

under Section 113B of the Evidence Act.  It was contended that  

the appellants are living separately and they were only witnesses  

to the compromise Ex A-3 and are in no way connected with the  

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day to day family life of Seema and Chandrahas and the courts  

below erred in convicting the appellants under Sections  304B,  

498A and 201 IPC.  

7. Mr. Pankaj Bhatia, learned Counsel for the respondent  

submitted  that  the  prosecution  has  adduced  overwhelming  

evidence to prove that Seema was subjected to harassment and  

cruelty  ‘soon  before  her  death’  and  upon  appreciation  of  

evidence, courts below by concurrent findings rightly convicted  

the appellants and the impugned judgment does not suffer from  

any infirmity.   

8.  We have carefully considered the submissions and gone  

through the impugned judgment and the evidence and materials  

on record.

9. Where the death of a woman caused by burns or bodily  

injuries occurs otherwise than under normal circumstances within  

seven  years  of  her  marriage  and  evidence  reveals  that  ‘soon  

before her death’ she was subjected to cruelty or harassment by  

her husband or any of his relatives for or in connection with any  

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demand  for  dowry,  such  death  is  described  as  ‘dowry  death’  

under  Section  304B  IPC  for  which  the  punishment  extends  to  

imprisonment for life but not less than imprisonment for seven  

years.  By virtue of Section 113B of the Evidence Act, the Court  

has to raise a presumption of ‘dowry death’ if the same has taken  

place within seven years of marriage and there is evidence of the  

woman having been subjected to cruelty and/or harassment.  It  

must be remembered that cruelty and harassment on a married  

woman and demand of dowry are generally committed within the  

four walls of residential houses and in secrecy, thereby making it  

difficult  to  get  direct  evidence.  That  is  why  the  legislature  by  

introducing Section 113B in the Evidence Act tried to strengthen  

the  prosecution  case  by  enabling  the  Court  to  raise  the  

presumption if certain basic facts are established and that death  

has taken place within seven years of marriage.  Considering the  

scope of Section 304B IPC and presumption under Section 113B of  

the Evidence Act, due weightage is to be given to the evidence of  

the father, brother, sister and other relatives of the deceased with  

regard to the case put forth relating to demand of dowry.

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10. In the instant  case,  deceased Seema was married to  

Chandrahas in the month of May 1991.  From the said wedlock, a  

male child was born in 1993. Seema died in the month of May  

1995.   PW-1-the father of the deceased, Meharchand, at the time  

of his daughter’s marriage had given the dowry and other articles  

as  per  his  capacity  and status.   As  per  the  evidence of  PW-1  

sometime  after  the  marriage,  Chandrahas  and  his  family  

members started demanding motorcycle and dowry and harassed  

Seema.  The  demand  of  dowry  and  harassment  was  

communicated by Seema to her father.   PW-1, Meharchand had  

taken his relatives to the house of Chandrahas and informed them  

about  his  poor  resources and that  he  will  not  be  able  to  give  

motorcycle.  After that, complainant-PW-1 received a letter from  

his daughter Seema to bring money or otherwise her husband and  

in-laws would kill her.  Again   PW-1 Meharchand took his relatives  

to the Village Churiyala and requested Chandrahas  and his family  

members   not  to  harass  his  daughter.   In  his  evidence  PW-1  

stated that the accused Jagdish, Yogendra and Savita demanded  

motorcycle  and  persisted  in  their  demands.   PW-1  could  only  

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arrange Rs.2,000/- and requested  Chandrahas and other accused  

not to harass Seema; but it was of no avail.   In 1993, Seema was  

physically  beaten  and  she  was  taken  to  the  District  Hospital  

Saharanpur.  PW-6-Dr. R.K. Verma had noticed three injuries on  

the body of Seema viz., on the left side of head, on back of the  

chest  lower  part  and  complain  of  pain  on  front  of  chest  of  

abdomen and issued Wound Certificate Ex A-8.          PW-6–Dr.  

R.K. Verma opined that the injuries could have been caused by  

blunt object.   

11. The demand for motorcycle and Rs. 20,000/- continued  

and in  1994,  PW-1 lodged a complaint against all  the accused  

alleging  demand  of  dowry  and  that  Seema  was  subjected  to  

cruelty.  In 1994, a Panchayat was convened in Churiyala Village  

and Ex A-3 compromise deed was executed and all the accused  

signed in the same.  Ex A-3, compromise deed refers to complaint  

lodged  by      PW-1-Meharchand  for  beating,  torturing  and  

harassing Seema regarding dowry demand and issuance of notice  

by family of Chandrahas against Meharchand. As per the terms of  

the  compromise,  Chandrahas  and  his  family  has  to  deposit  

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Rs.50,000/- in the name of Seema as security amount and after so  

depositing   the amount  in  her   name,  accused can  take back  

Seema  and  all  the  accused  agreed  and  had  undertaken  that  

Seema would not be harassed or tortured.  The appellants and all  

the accused have signed Ex A-3, compromise deed.  In terms of  

Ex A-3, Rs.50,000/- was to be deposited in the name of  Seema  

and  after  depositing   the  same,  she  was  taken  back  to  the  

matrimonial house. Ex A-3, compromise deed dated 4.9.1994 is a  

material evidence substantiating prosecution case.  Inspite of Ex  

A-3,  compromise  deed  and  the  assurance,  the  cruelty  and  

harassment for dowry demand continued.

12. PW-2  Rikhiram,  resident  of  Village  Beherki  and  a  

neighbour of  PW-1 corroborated the version of  PW-1 in  all  the  

essential particulars as to demand of motorcycle and dowry.  PW-

2 stated about demand of dowry by the accused and the letter  

written by Seema alleging cruelty by the accused and also about  

the convening of Panchayat and Ex A-3–compromise deed.  There  

is nothing in cross-examination of PWs 1 and 2 to hold that they  

are not reliable witnesses, there is no reason to disbelieve them.  

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13. There  is  overwhelming  evidence  that  there  was  

demand  of  dowry  and  that  Seema  was  subjected  to  physical  

violence  and  cruelty.   When  the  essential  ingredient  that  the  

victim was subjected to cruelty or harassment in connection with  

demand for dowry ‘soon before her death’ is proved, presumption  

under Section 113B of the Evidence Act has to be invoked. When  

such  presumption  is  raised,  it  is  for  the  accused to  rebut  the  

presumption  by  adducing  cogent  evidence.   In  his  statement  

under  Section  313  Cr.P.C,  late  Chandrahas  (husband  of  the  

deceased) stated that on 12.5.1995 smoke was coming out from  

the room where firewood was kept and the door had been closed  

from  inside,  roof  was  cut,  entered  inside  the  room  and  they  

opened  the  door  and  that  the  death  of  Seema was  either  an  

accident  or  suicide.   The  theory  of  accident  put  forth  by  the  

defence  completely  falls  through  on  careful  analysis  of  the  

evidence  and  the  attendant  circumstances.   Had  it  been  an  

accident or in the manner as alleged by the defence, the accused  

would not have hurried with cremation without informing PW-1–

Meharchand about the death of Seema or to the police?  There  

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was no reason for the accused to hurriedly conduct the cremation  

without  even  waiting  for  the  victim’s  father  and  furthermore  

without lodging a complaint.

14. As rightly pointed out by the courts below, conducting  

cremation hurriedly and burning the dead body of Seema without  

informing  PW-1–Meharchand  and  his  relatives  is  a  strong  

militating circumstance  against the accused.   It has come on  

evidence  that  the  distance  between  Beherki  and  Churiyala  is  

about 20-25 kms.   As pointed out by the courts below, the pyre  

was lit even before the father and relatives of the victim arrived.  

Trial court as well as the High Court  upon appreciation of oral and  

documentary evidence accepted the version of the prosecution  

that Seema was harassed and subjected to cruelty in connection  

with non-fulfillment of  demand of dowry  made by the husband  

and in-laws.    

15. First  appellant–Jagdish  is  Taya i.e.  elder  brother  of  

father-in-law  of  Seema.   To  prove  the  guilt  of  the  appellant–

Jagdish   prosecution relied upon:- (i) the evidence of PWs 1 and 2  

that Jagdish also demanded dowry;  (ii) Jagdish also signed in the  

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memo of compromise.  To attract the provisions of Section 304B  

IPC,  the  deceased  must  have  been  subjected  to  cruelty  or  

harassment  for  or  in  connection  with  dowry  ‘soon  before  her  

death’.  Going by the evidence of PWs 1 and 2, appellant-Jagdish  

along with other accused also demanded dowry.  A mere demand  

of dowry at one or two instances may not attract the provisions of  

Section  304B  IPC  though  such  demand  might  be  an  offence  

punishable under Section 498A IPC.  There is no material to show  

that there was persistent demand of dowry by appellant–Jagdish.

16. In  his  statement  under  Section  313  Cr.P.C.,  first  

appellant–Jagdish has stated   that he has no wife or child and  

that  he  is  living  separately  in  Village  Churiyala  and  that  his  

brother  Sukhbir  was  living  with  his  wife  and  children.   First  

appellant has further stated that he has been living separately  

even prior to the marriage of Chandrahas and that he has his own  

food prepared.  We find no reason to disbelieve the statement of  

the  first  appellant-       Jagdish.   Insofar  as  signature  of  first  

appellant–Jagdish in Ex A-3 compromise deed is concerned, being  

elder member of the family and to ensure peaceful married life of  

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Chandrahas,  first  appellant  perhaps  might  have  signed  in  the  

compromise deed.  The first appellant who is stated to be living  

separately could not have persistently subjected Seema to dowry  

harassment and cruelty and the first appellant is to be acquitted  

of the charge of 304B IPC.    For the alleged demand of dowry by  

the first appellant as spoken by PWs 1 and 2, the first appellant is  

to  be  convicted  under  Section  498A  IPC.   As  seen  from  the  

materials on record, first appellant-Jagdish was about 70 years of  

age in the year 1996.  Considering his age, lenient view has to be  

taken  in  imposing  the  sentence  for  the  offence  under  Section  

498A IPC.

17.    Insofar as appellants 2 and 3 (Yogenda-jeth and Savita-

jethani), during  their  questioning  under  Section  313  Cr.P.C.  

though they have stated that they are living separately they have  

not  produced any ration card or  other  document  to  show that  

they  are  living  separately.   In  his  statement,  first  appellant–

Jagdish  has  stated  that  Sukhbir  was  living  with  his  wife  and  

children thereby indicating that the second and third appellants  

were  living  with  Sukhbir  as  a  joint  family.   Upon  proper  

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appreciation of evidence, the Courts below convicted appellants 2  

and 3 under Section 304B IPC and we find no infirmity in  the  

concurrent findings recorded by the Courts below.

18. So far  as the sentence of appellants 2 and 3,  it  was  

stated  that  appellants  2  and  3  are  having  a  physically  

handicapped  child and they are also taking care of the son of  

deceased–Seema.  Considering the passage of time and the facts  

and circumstances of the case, in our view, extreme penalty of  

life imprisonment is not justified and ends of justice would be met  

by  reducing  the  sentence  of  imprisonment  awarded  against  

appellants 2 and 3 to seven years rigorous imprisonment.

19. In the result, conviction of first appellant–Jagdish under  

Section 304B IPC is set aside and he is convicted under Section  

498A IPC and is sentenced to the period already undergone by  

him.    While  maintaining the conviction of  appellants  2  and 3  

(Yogendra &   Savita) under Section 304B IPC, sentence of life  

imprisonment  awarded  to  them  is  reduced  to  seven  years  

rigorous imprisonment.  The appeal is partly allowed to the extent  

indicated above.  Bail bonds executed by first appellant–Jagdish  

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stand discharged.   Appellants Yogendra and Savita be taken into  

custody forthwith for serving out the remaining sentence awarded  

to them.      

…………………………J. (T.S. Thakur)    

…………………………J. (Adarsh Kumar Goel)

………….………………J. (R. Banumathi)

New Delhi; November 25, 2014  

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