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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.408 OF 2017

JAGJIT SINGH ...APPELLANT(S)

VERSUS

STATE OF PUNJAB    ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. The  appeal  after  granting  special  leave  to

appeal is filed by the appellant against the judgment of

the  High  court  of  Punjab  and  Haryana  affirming  the

judgment  of  the  trial  Court  convicting  the  appellant

under Section 304-B IPC but reducing the sentence from 8

years rigorous imprisonment to a period of 7 years under

the aforesaid section.  The appellant who was tried along

with his parents and two brothers was acquitted of the

charge under Section 406 of the Indian Penal Code by the

trial Court.  In view of his conviction under Section

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304-B IPC, the trial Court did not find it necessary to

record a separate conviction under Section 498-A IPC.

2. We heard Dr. J.P. Dhanda, learned counsel for

the appellant and Ms. Jaspreet Gogia, learned counsel for

the respondent-State.

3. There is no dispute that the marriage between

the appellant and his deceased wife took place on 24th

January,  1998.  It  is  also  not  in  the  region  of

controversy that she died well within seven years of her

marriage.  It  is  undisputed  that  the  death  of  the

appellant’s wife was unnatural and she died along with

her child by way of drowning in a river. In fact, PW8 -

ASI in his deposition stated that both the dead bodies

were secured together with one chunni.  The only question

is  whether  the  death  is  to  be  attributed  to

cruelty/harassment on the part of the appellant arising

out of demand for dowry as contemplated under Section

304-B of the IPC.

4. Learned  counsel  for  the  appellant  pointed  out

that the Court did not consider the evidence given by the

appellant and that neither cruelty nor any demand for

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dowry is made out. It is contended that the appellant’s

wife apparently took her life along with that of her

daughter on account of the fact that she was consistently

taunted by PW3 – the sister of the appellant’s wife who

was  married  to  an  industrialist.   The  appellant  was

earning  a  sum  of  Rs.3000/-  per  month.  However,

notwithstanding the same, the appellant had taken care of

her by fulfilling the desire of the deceased wife to

pursue education and she was, in fact, doing her Post-

Graduation  at  the  time  of  her  untimely  death.  The

appellant’s father (we note that the appellant along with

his two brothers and mother were tried by the trial Court

and  the  trial  Court  convicted  the  appellant  and  his

mother under Section 304-B but appellant’s mother stood

acquitted by the High Court) had in fact financed the

education of the deceased wife.   

5. Learned counsel for the State pointed out that

no reliance is to be placed on the evidence of the DW6

and DW8. They were neighbours. Their evidence supporting

the case of the appellant should be perceived as born out

of their need to maintain cordial relationship with their

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neighbours.  As to what happened within the four walls of

the house, she would question as to how could they depose

before the Court.  She sought support from the evidence

of PW1 and PW3.   The evidence would indicate that there

is a proximity in a point of time between the acts, as

complained  of,  against  the  appellant  and  the  untimely

death of the deceased.

6.    Before we embark on the examination of the case

it becomes necessary to remind ourselves of the contours

of the jurisdiction of this Court in an appeal which is

maintained after grant of special leave under Article 136

of the Constitution of India.  Does the Court have the

duty as a regular court to consider an appeal or is its

jurisdiction circumscribed by the consideration that this

Court is dealing with the appeal on the basis of grant of

special leave.  

7. We  may profitably  advert to  the views  of the

majority expressed in Saravanabhavan and Govindaswamy Vs.

State of Madras AIR 1966 SC 1273, which is as under:-

“7. This is an appeal under Article 136 of the Constitution and we shall first state what this Court will ordinarily consider in such an appeal.  It is not to be forgotten that this

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Court’s  ordinary  appellate  jurisdiction  in criminal cases is to the extent laid down in Article 134 of the Constitution. Some of the appeals in that article are available as of right and others lie if a special certificate is  granted  by  the  High  Court.  This  appeal belongs  to  neither  class.  It  is  not  as  of right  and  no  special  certificate  has  been granted by the High Court. There is in our jurisdiction no “sacred right of appeal” as the French Canadian law assumes(See Mayor etc. of Montreal v. Brown, (1876) 2 AC 168 (184). Once a decision is given by the High Court, that is final unless an appeal is allowed by special  leave  of  this  Court.  No  doubt  this Court  has  granted  special  leave  to  the appellants  but  the  question  is  one  of  the principles  which  this  Court  will  ordinarily follow in such an appeal. It has been ruled in many  cases  before  that  this  Court  will  not reassess the evidence at large, particularly, when it has been concurrently accepted by the High Court and the court or courts below. In other words this Court does not form a fresh opinion as to the innocence or the guilt of the accused. It accepts the appraisal of the evidence in the High Court and the court or courts  below.  Therefore,  before  this  Court interferes something more must be shown, such as,  that  there  has  been  in  the  trial  a violation of the principles of natural justice or a deprivation of the rights of the accused or  a  misreading  of  vital  evidence  or  an improper  reception  or  rejection  of  evidence which, if discarded or received, would leave the  conviction  unsupportable,  or  that  the court or courts have committed an error of law or of the forms of legal process or procedure by which justice itself has failed. We have, in  approaching  this  case,  borne  these principles in mind. They are the principles for the exercise of jurisdiction in criminal

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cases, which this Court brings before itself by a grant of special leave.”

 (Emphasis supplied)

8. In  Mst.  Dalbir  Kaur  and  Others  Vs.  State  of

Punjab 1976 (4) SCC 158, the  Bench of two learned Judges

laid down as follows:-

“3. As to the principles on which special leave is granted by this Court, the same have been  clearly  and  explicitly  enunciated  in  a large number of decisions of this Court. It has been pointed out that the Supreme Court is not an ordinary court of criminal appeal and does not interfere on pure question of fact. It is only in very special cases where the court  is  satisfied  that  the  High  Court  has committed an error of law or procedure as a result  of  which  there  has  been  a  serious miscarriage  of  justice  that  the  court  would interfere with the concurrent findings of the High Court and the trial Court.  It has also been pointed out by this Court more than once that it is not in the province of this Court to reappraise the evidence and to go into the question  of  credibility  of  the  witnesses examined by the parties, particularly when the courts  below  have  after  considering  the evidence,  given  their  findings  thereon.  In other words, the assessment of the evidence by the High Court would be taken by this Court as final, unless it is vitiated by any error of law or procedure, by the principles of natural justice, by errors of record or misreading of evidence,  non-consideration  of  glaring inconsistencies in the evidence which demolish the prosecution case or where the conclusion of the High Court is manifestly perverse and unsupportable and the like. As early as 1950

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this Court in Pritam Singh v. State, 1950 SCR 453:  AIR  1950  SC  169:  51  Cri  LJ  1270, speaking through Fazl Ali, J. (as he then was) observed as follows:

The  obvious  reply  to  all  these arguments advanced by the learned Counsel for the appellant, is that this Court is not  an  ordinary  court  of  criminal  appeal and  will  not,  generally  speaking,  allow facts to be reopened, especially when two courts agree in their conclusion in regard to them and when the conclusions of fact which are challenged are dependent on the credibility  of  witnesses  who  have  been believed by the trial Court which had the advantage of seeing them and hearing their evidence.

In  arguing  the  appeal,  Mr.  Sethi proceeded  on  the  assumption  that  once  an appeal had been admitted by special leave, the  entire  case  was  at  large  and  the appellant  was  free  to  contest  all  the findings of fact and raise every point which could be raised in the High Court or the trial  Court.  This  assumption  is,  in  our opinion, entirely unwarranted.

The rule laid down by the Privy Council is based on sound principle, and, in our opinion, only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave to appeal is asked for, and it would  be  illogical  to  adopt  different standards  at  two  different  stages  of  the same case.

On a careful examination of Article 136 along with the preceding article, it seems clear  that  the  wide  discretionary  power with which this Court is invested under it is  to  be  exercised  sparingly  and  in exceptional cases only,....

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Generally speaking, this Court will not grant  special  leave,  unless  it  is  shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.

Analysing this decision, two principles appear to have been clearly laid down by this Court:

“(1)  that  in  appeals  by  special  leave against  the  concurrent  findings  of  the courts below, this Court would not go into the credibility of the evidence and would interfere only when exceptional and special circumstances  exist  which  result  in substantial and grave injustice having been done to the accused; and

(2) that even after special leave has been granted  the  appellant  is  not  free  to contest all the findings of fact, but his arguments  would  be  limited  only  to  those points,  even  at  the  final  hearing,  which could  be  urged  at  the  stage  when  the special leave to appeal is asked for.”

8.  Thus  the  principles  governing interference  by  this  Court  in  a  criminal appeal by special leave may be summarised as follows:

“(1)  that  this  Court  would  not  interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were  to  take  a  different  view  on  the evidence;

(2) that the Court will not normally enter into  a  reappraisement  or  review  of  the

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evidence, unless the assessment of the High Court  is  vitiated  by  an  error  of  law  or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular  evidence  is  totally  inconsistent with the medical evidence and so on;

(3)  that  the  Court  would  not  enter  into credibility of the evidence with a view to substitute its own opinion for that of the High Court;

(4)  that  the  Court  would  interfere  where the High Court has arrived at a finding of fact  in  disregard  of  a  judicial  process, principles  of  natural  justice  or  a  fair hearing  or  has  acted  in  violation  of  a mandatory  provision  of  law  or  procedure resulting in serious prejudice or injustice to the accused;

(5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence.

It is very difficult to lay down a rule of universal  application,  but  the  principles mentioned above and those adumbrated in the authorities of this Court cited supra provide sufficient guidelines for this Court to decide criminal appeals by special leave. Thus in a criminal appeal by special leave, this Court at the hearing examines the evidence and the judgment of the High Court with the limited purpose of determining whether or not the High Court has followed the principles enunciated above.  Where  the  Court  finds  that  the  High Court  has  committed  no  violation  of  the various principles laid down by this Court and has  made  a  correct  approach  and  has  not ignored or overlooked striking features in the

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evidence which demolish the prosecution case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the  circumstances  of  the  case  would  not  be disturbed.”

 (Emphasis supplied)

9. We may also notice the judgment rendered by this

Court in Sushil Ansal v. State Through Central Bureau of

Investigation 2014  (6)  SCC  173.   Therein,  in  the

judgment rendered by the T.S. Thakur,J. as His Lordship

then was, it is inter alia held in para 55 as follows:

“55. ....Perversity  in  the  findings, illegality or irregularity in the trial that results in injustice or failure to take into consideration an important piece of evidence are  some  of  the  situations  in  which  this Court may reappraise the evidence adduced at the trial but not otherwise...."

 (Emphasis supplied)

10. We lastly notice a recent judgment of this Court

in the case of Mohd. Ali alias Guddu v. State of Uttar

Pradesh 2015 (7) SCC 272 wherein the Court  inter alia

held as follows:

“17. In Ganga Kumar Srivastava v. State of Bihar, (2005)6 SCC 211 : 2005 SCC (Cri) 1424, the  Court  after  referring  to  a  series  of decisions on exercise of the power of this Court under Article 136 of the Constitution,

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culled out the following principles: (SCC p. 217, para 10)

“(i)  The  powers  of  this  Court  under Article 136 of the Constitution  are very wide  but in criminal appeals this Court does  not  interfere  with  the  concurrent findings  of  fact  save  in  exceptional circumstances.

(ii)  It  is  open  to  this  Court  to interfere with the findings of fact given by the High Court, if the High Court has acted  perversely or otherwise improperly.

(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional  circumstances  as  and  when  a question  of  law  of  general  public importance arises or a decision shocks the conscience of the Court.

(iv)  When the evidence adduced by the prosecution    fell short of  the test of reliability and acceptability   and as such it is highly unsafe to act upon it.

(v) Where  the  appreciation  of  evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the  evidence, or where the conclusions of the High Court are  manifestly perverse and unsupportable from the evidence on  record.”

       (Emphasis supplied)

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11. Learned  counsel  for  the  appellant  drew  our

attention to the recent judgment of this Court in  the

case  of  Major  Singh  and  Another  v.  State  of  Punjab

reported  in 2015  (5)  SCC  201.   It  was  a  case  of

unnatural death.  Therein the prosecution witnesses, the

complainant-father and brother of the deceased deposed

that they saw the accused dragging the deceased towards

the room inside the house and that she was trembling and

on seeing the witnesses, all the four accused ran away

and  the  deceased  breathed  her  last.   The  father  had

spoken about the information he had given to the village

panchayat.  The Court proceeded inter alia as follows:

“10.  To  sustain  the  conviction  under Section  304-B  IPC,  the  following  essential ingredients are to be established:

(i) the  death  of  a  woman  should  be caused  by  burns  or  bodily  injury  or otherwise  than  under  a  'normal circumstance';

(ii)such a death should have occurred within seven years of her marriage;

(iii) she  must  have  been  subjected to  cruelty  or  harassment  by  her husband  or  any  relative  of  her husband;

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(iv)such cruelty or harassment should be for or in connection with demand of dowry; and

(v) such  cruelty  or  harassment  is shown to have been meted out to the woman soon before her death.”

The Court also proceeded to hold as follows:

“14.  The prosecution has not examined any independent witness or the panchayatdars to prove that there was demand of dowry and that  the  deceased  was  subjected  to  ill- treatment.  Ordinarily,  offences  against married woman are being committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available. But when PW-3 has specifically stated that the demand of dowry by  the  accused  was  informed  to  the panchayatdars and that panchayat was taken to Village Badiala, the alleged ill-treatment or cruelty of Karamjit Kaur by her husband or relatives  could  have  been  proved  by  the examination  of  the  panchayatdars.  The  fact that the deceased was subjected to harassment or cruelty in connection with demand of dowry is not proved by the prosecution. It is also pertinent to note that both the courts below have  acquitted  all  the  accused  for  the offence punishable under Section 498-A IPC.”

12. We noticed that it was a case where the courts

had  acquitted  all  the  accused  for  the  offence  under

Section 498-A of the IPC.  The Court noted that the case

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of the prosecution is that there is a demand for scooter

and proceeded to hold inter alia as follows:

“18. Applying these principles to the instant case, we find that there is no evidence as to the  demand  of  dowry  or  cruelty  and  that deceased Karamjit Kaur was subjected to dowry harassment  “soon  before  her  death”.  Except the demand of scooter, there is nothing on record  to  substantiate  the  allegation  of dowry demand. Assuming that there was demand of  dowry,  in  our  view,  it  can  only  be attributed to the husband Jagsir Singh who in all probability could have demanded the same for his use. In the absence of any evidence that the deceased was treated with cruelty or harassment in connection with the demand of dowry  “soon  before  her  death”  by  the appellants, the conviction of the appellants under Section 304-B IPC cannot be sustained. The trial court and the High Court have not analysed  the  evidence  in  the  light  of  the essential  ingredients  of  Section  304-B  IPC and the conviction of the appellants under Section 304-B IPC is liable to be set aside.”

 (Emphasis supplied)

13. In this connection it is to be noticed that the

appellants in the said case was not the husband, but

they were the parents-in-law of the deceased.

14. We  have  already  noticed  that  the  essential

ingredients  of  Section  304-B  IPC  as  noticed  by  this

Court  in  Major  Singh  &  Another  vs.  State  of  Punjab

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(supra). Parliament has inserted Section 113-B in the

Evidence Act.  In order that the presumption therein has

to be applied it must be established that soon before

her death, such woman must have been subjected by such

person to cruelty or harassment for, or in connection

with  any  demand  of  dowry.  Upon  this  fact  being

established,  undoubtedly,  the  court  is  mandated  to

assume that the person has indeed caused the dowry death

as  contemplated  in  Section  304-B  IPC.  Therefore,  the

presumption cannot apply unless it is established that

soon before her death, a woman has been subjected to

cruelty  or  harassment  for  or  in  connection  with  any

demand for dowry.  The words “soon before” her death has

also been considered in a large number of cases.

15. We  need  only  to  advert  to  a  recent  judgment

rendered by a Bench consisting of three learned Judges

in Rajinder Singh v. State of Punjab reported in 2015(6)

SCC 477 only for the purpose of appreciating the words

“soon before” occurring in Section 304-B IPC.  This is

what the Court has to see

“24.  We  endorse  what  has  been  said  by these two decisions.  Days or months are not

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what is to be seen.  What must be borne in mind is that the word “soon” does not mean “immediate”.   A  fair  and  pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is  a  relative  expression.  Time-lags  may differ  from  case  to  case.  All  that  is necessary is that the demand for dowry should not  be  stale  but  should  be  the  continuing cause  for  the  death  of  the  married  woman under Section 304-B.”

16. Having regard to the aforesaid statements of the

law, we embark on a consideration of the appeal.  The

prosecution case as projected through PW1 complainant –

Mohinder  Singh,  the  father  of  the  deceased  is  as

follows:-  the deceased was married on 24th January, 1998

and  he  had  given  dowry  beyond  his  capacity  in  the

marriage. After some time of the marriage, all the five

accused  started  beating  the  deceased.  They  started

taunting her that she had brought meagre dowry and that

her parents had not given a Maruti car in the marriage

due  to  which  they  had  felt  belittled  in  their

neighbourhood. The deceased conveyed this fact to the

complainant on telephone. The daughter was aged about

1½ years at the time of her death. In December 2000, the

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deceased  accompanied  by  her  sister  went  to  see  her

parents  at  Amao  Farm,  PS  Khatima.  She  informed  the

complainant that she was being subjected to harassment

by her in-laws. She also told him that the accused had

threatened her that she could return to her matrimonial

home only if she brought a sum of Rs.2 lacs from her

parents  for  the  purchase  of  a  Maruti  car.  The

complainant then got prepared a fixed deposit receipt

for  Rs.30,000/- and handed it over to the deceased. The

complainant has also informed at that time to accused

Jagjit Singh on phone that he would visit Ludhiana after

the sale of the crops and would pay the accused the sum

of Rs.2 lacs demanded by them. He also requested him not

to harass the deceased. However, even then the accused

gave  beatings  to  the  deceased  and  turned  her  out  of

their house. The deceased wife then went to the house of

Avtar Singh (nephew of the complainant), and he took her

to  the  house  of  the  accused  and  also  paid  them

Rs.2000/-  and  requested  him  to  treat  the  deceased

nicely. On February 16, 2001 at about  11:30 a.m. the

deceased  made  a  telephone  call  from  the  PCO  to  the

complainant that all the five accused were subjecting

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her to extensive harassment and that she was feeling

depressed also informed him that on that date also the

accused had given her beatings and turned her and her

daughter out of the matrimonial home. She also told him

that she was making this telephone call from the PCO.

The complainant consoled the deceased and told her that

he was coming to Ludhiana and advised her to return to

her matrimonial home. It is also stated that his nephew

on being contacted told them that the accused and his

mother  approached  the  house  of  Avtar  Singh  in  the

evening and enquired about the deceased from him and

from his other relations. It is alleged that Avtar Singh

told  that  they  had  not  visited  him  nor  he  had  any

information  about  them.  It  is  the  case  of  the

prosecution  that  complainant  lodged  the  FIR  on

17.02.2001.

17. PW1, father of the deceased inter alia states as

follows:

The marriage between the appellant and his daughter

(deceased) took place on 24.1.1998.  After a good period

of marriage all the accused persons in the home started

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beating the deceased for not bringing sufficient dowry.

He states that they also used to taunt his daughter for

bringing insufficient dowry. The appellant also demanded

a Maruti car.  This fact was brought to the notice by

his  daughter  on  telephone.  A  female  child  was  born.

Thereafter,  he  states  that  the  deceased  went  to  her

house, two months before the untimely death took place

namely in December 2000.  He states that his daughter

alongwith PW3(another daughter) came to his farm.  He

states that his daughter told him all the accused were

harassing and demanding Maruti car or Rupees two lacs

for purchasing the car.  The deceased daughter told him

that the accused misbehaved with her and she will not go

to  her  in-laws  house  as  they  used  to  beat  her  and

further (it may be noted that there is no allegation

that the accused appellant used to beat her) he deposed

that she told him that they would kill her.  He states

that  his  brother  Ram  Singh  and  daughter  PW3  were

present.  He further states that he send his daughter to

her in-laws house after consoling her.  Also a FDR for

Rs.30,000/- (Rupees Thirty Thousand only) was given to

her.   He  phoned  up  the  accused  not  to  maltreat  his

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daughter and he promised to give Rupees two lacs after

selling the crop.  He next says that all the accused re-

started giving the beatings and sent away his daughter

to the house of his nephew Avtar Singh.  Avtar Singh, it

is alleged brought this to his notice  and gave Rupees

two  lacs  to  the  accused.   PW1  states  that  the

maltreatment,  however,  continued.   Thereafter,  he

relates  about  one  event  that  is  on  16.2.2001  the

deceased daughter phoned him up from a PCO. She informed

that all the accused were maltreating and she was very

much upset and the accused threw her out from the house

and that the accused told her that the accused shall not

allow her without Maruti car.  In cross examination, PW1

stated  that  the  deceased  daughter  was  preparing  for

examination B.A. Part-I which she was doing as a private

candidate and that she did graduation after the marriage

by studying in her matrimonial home.  He also states

that at the time of her death, she was preparing for the

M.A  examination.   He  claims  to  have  made  payment  of

Rs.935/- as the admission fee, which according to the

accused-appellant, was paid by his father but he does

admit that bank draft of Rs.935/- was got prepared by

21

the father of the appellant.  He says that he does not

know whether the appellant was working as turner.  He

says he might be working but he does not know that he is

earning Rs.2000/- or Rs.2500/- per month.  He admits the

photograph  of  his  deceased  daughter  apparently  in

connection  with  the  marriage  of  the  ‘Devar’  of  the

daughter of Iqbal Singh (father of the appellant).  He

admits that his other daughter (PW3) is married to a

person having his own industry which is being run by his

son-in-law,  his  brother  and  father.  He  admits  that

neither his brother who is lawyer nor the sister’s son

who appears to be a Superintendent in the BPO Office,

Ludhiana  made  any  report  to  the  police  station  or

elsewhere about the harassment.  He further states that

he did not convene any panchayat in this regard.  He has

denied the suggestion that he used to tell his deceased

daughter to separate from the parents-in-law.  He denies

the suggestion (apparently that his daughter took her

life) on the basis of the FIR lodged by him.

18. We  may  also  advert  to  what  PW3  has  actually

said.  Sometime after the marriage, the accused started

22

taunting her deceased sister by saying that she brought

insufficient dowry and that there is a demand for dowry.

She says that this is disclosed about 5 or 6 months

after the marriage.  Thereafter, she repeatedly told her

about  the  harassment  at  the  hands  of  the  accused  on

account of dowry.  Thereafter, she refers to meeting her

parents in December 2000 along with the deceased.  She

speaks  along  the  same  lines  as  her  father.   On

16.2.2001, it is alleged that the deceased came to her

house  and  wept  bitterly.   She  told  her  that  in  the

preceding day, her husband (appellant) has hurled abuses

at  her  father  on  phone  and  at  that  time  she  was

accompanied  by  her  daughter.  That  all  the  five  (5)

accused used to beat her and she told her that when she

prevented  her  husband  from  abusing  her  father,  the

appellant gave her more beating.  She specifically says

that when the appellant went to take meal, her daughter

also  started  sharing  meal  with  her  and  then  the

appellant slapped her.  The deceased also told her that

when  she  protested,  Balwant  Singh  (brother  of  the

appellant)  also  beat  her  and  abused  her.   It  is

thereafter she goes to a PCO and makes the call which

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PW1 has spoken about.  She does say that the appellant's

mother  came  to  her  house  to  make  enquiry  about  the

deceased and she told her that the deceased was under

depression and has gone to make a call at the PCO and

she should take her home. The appellant's mother told

her that she would herself return home.

19. In  her  cross  examination  she  does  state  as

follows:

Her husband and father-in-law are running their own

industry.  More importantly, she says it is correct that

the status of the accused was lower than that of her in-

laws.  They had represented that they had applied for

industrial  connection  and  would  start  their  own

industry.  She admits that the deceased continued with

her studies and was preparing for M.A. Examination at

the time of her death so as to become self-reliant.  She

denies the suggestion made to the effect that it is on

account of his financial status that the appellant used

to shun the company of her husband.  She also states

that  her  uncle,  an  Advocate  was  informed  about  the

harassment but he never lodged any complaint or FIR with

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a  view  to  ensure  settlement  of  the  deceased  in  her

matrimonial home.  She states that on 16.2.2001, the

deceased spent about 5 – 7 minutes with her.  She denies

the allegation that she also taunted the deceased that

the  birth  of  her  daughter  has  further  increased  the

liability and therefore, the deceased committed suicide.

20. No doubt we notice that PW5 is examined to show

that he was at the PCO from where the deceased made a

call on 16.2.2001 that he just saw but did not hear her

talk.  She was weeping, the witness deposed.  Though

there is a definite role for the nephew namely, Av tar

Singh, which is referred to in the deposition of both

PW1  and  PW3,  the  prosecution  has  given  up  the  said

witness as being won over by the accused.

21. Having adverted to the evidence which is the

basis for imputing the charge against the appellant, we

may now examine what is the defence evidence.  DW5 is

the father-in-law of the appellant's brother (Sarabjit

Singh).  Be it noted that Sarabjit Singh was also an

accused in the trial. He says that after 6 years of

marriage, his daughter and son-in-law separated from the

25

parents.  He states that his daughter always remained

happy in the house of her husband.  He states that PW3

is married into an affluent family.  PW3 used to tell

that  she  has  been  married  in  a  poor  family.   The

deceased  had  told  her  that  she  would  get  higher

education and bring herself to the level of PW3.  Upon a

daughter being born, again PW3 reminded her of the fact

that she is married in a poor family and asked her to

get rid of the appellant.  This is how the deceased

started remaining under depression. He  says  that  the

accused never demanded dowry from the deceased-wife of

the appellant. In cross examination he would say that he

used to visit the house of the appellant after about a

fortnight.   

22. DW6 is a neighbour. His house is just opposite

the house of the Iqbal-appellant's father. He has stated

that family of the accused is a nice family.  He never

heard or saw the accused harassing the deceased with the

demand of dowry.  He denies the allegation that being

neighbour he tried to depose in favour of the accused.

26

He says Sarabjit Singh is also a joint resident with the

present accused.

23. Finally, DW8 is examined.  He says that he knows

the  family  of  the  accused  Iqbal  (appellant's  father)

very  well.   He  states  that  the  deceased-wife  of  the

appellant used to visit his house and used to address as

Mausaji.  His house is opposite to the house of the

accused.  He says that the deceased never complained to

him against the accused.  He says that PW1 used to visit

his  house  sometimes  and  that  PW3  is  married  at  a

distance of 4th streets from his house.  The family of

PW3 is well off whereas the family of the accused is an

average family.  The deceased intended to open a private

school  in  the  house  after  completing  her  study.   He

deposed that once in his presence PW3 told the deceased

that while she was married in an affluent family, the

deceased was married in a poor family.  He states that

PW1 visited the matrimonial home of the deceased once or

twice after the marriage but thereafter he never visited

their house.  PW3 is alleged to have taken the deceased

away from the matrimonial home on the morning of the day

27

by telling her that father had come to visit his sister

in  village  Rampur.   He  states  that  the  deceased

absolutely  had  no  problem  while  staying  with  the

accused.  In cross examination he would depose that the

deceased used to meet him sometime.  He is not able to

remember the date of marriage of the deceased.  He did

not attend the marriage either from this side of the

deceased or from the side of the complainant.  He also

did not attend the marriage of PW3 from either side (In

this regard PW3 is the elder sister of the deceased).

He  deposed  that  PW1  did  not  visit  the  house  of  the

appellant as they were poor.   

24. A reading of Section 304-B of the IPC along with

Section 113-B of the Evidence Act would establish that

once the prosecution shows that soon before the death of

the  wife,  she  has  been  subjected  to  cruelty  or

harassment  for  or  in  connection  with  any  demand  for

dowry, the court shall presume that such person caused

the dowry death within the meaning of Section 304-B IPC.

The  words  'shall  presume'  in  Section  113-B  of  the

Evidence Act, while it mandates that the Court is duty

28

bound to proceed on the basis that the person has caused

the dowry death, the presumption is rebuttable and it is

open to the relative to prove that the ingredients of

Section  304-B  IPC  are  not  satisfied.   See  in  this

regard, the following statement of law contained in the

case of G.V. Siddaramesh v. State of Karnataka 2010 (3)

SCC 152:

“26. Section 113-B of the Evidence Act raises a presumption against the accused and reads:

“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  had  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).”

A reading of Section 113-B of the Evidence Act shows that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption  can  be  drawn  that  a  person  has committed the dowry death of a woman. It is then  up  to  the  appellant  to  discharge  this presumption.”

29

25. We  may  also  notice  the  statement  of  law

contained in the decision of this Court in the case

of Ashok Kumar v. State of Haryana reported in 2010

(12)SCC 350 which reads as under:

“24. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were  not  satisfied,  rebut  the  same.  While referring  to  raising  of  presumption  under Section  304-B  of  the  Code,  this  Court,  in Kaliyaperumal  v.  State  of  T.N.;(2004)  9  SCC 157: 2004 SCC (Cri) 1417, stated the following ingredients which should be satisfied: (SCC p. 162, para 4)

“(1) The question before the court must be whether the 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 death.”

26. In  the  perspective  of  aforesaid  state  of  the

law, two issues would arise. Whether there is material

within the meaning of Section 113-B of the Evidence Act

30

for the Court to have come to the conclusion that soon

before the death, the deceased was treated with cruelty

or harassed for or in connection with demand for dowry.

In this regard we have noticed that there is a material

in the form of testimony of PW1 and PW3.  The marriage

between the accused-appellant and the deceased took place

on 24.1.1998 and it survived only for a little over three

(3) years.  It is on 16.2.2001 that the deceased goes to

the house of PW3, her elder sister, spent 5 to 7 minutes,

according to the said witness, complained of cruelty or

harassment by the accused and her own daughter was with

her.  On the same day, she goes to the PCO, phones her

father PW1 and tells him about the harassment.  PW4 the

person working at the PCO has also stated that she was

weeping and the she made a call.  PW1 has spoken about

the contents of the telephonic conversation namely, all

the accused were maltreating and taunting her and that

she was very much upset and the accused had thrown her

out from their house with the daughter and that she will

not  be  allowed  to  come  back  without  a  Maruti  car  or

Rupees two lakhs.  If he is to be believed (In fact, two

courts have), this would amount to cruelty/harassment in

31

connection with demand for dowry.  Therefore, the law

enjoins under Section 113-B of the Evidence Act drawing

of the presumption that the accused has committed the

dowry death.   

27. Undoubtedly,  the  presumption  is  rebuttable  at

the  hands  of  the  accused  by  adducing  evidence  and

discharging  the  reverse  burden.   Whether  any  such

evidence  in  discharge  with  reverse  burden  has  been

successfully adduced and whether it has been considered,

is the next question.  The judgment of the trial Court

would  show  that  there  is  indeed  a  reference  to  the

contents of the deposition of PW5, PW6 and PW8.

28. Power  under  Article  136  seemingly,  transcends

all limitations in regard to matters save where it is

expressly  excluded.  However,  by  way  of  self  imposed

intrusions into such power, as also by way of deference

to the scheme of the Constitution, the principles we have

alluded to stand culled out. Apposite to the facts of

this appeal, the following principles must inform us:

1. Credibility of witnesses as commended to Courts

below is not ordinarily reappraised.

32

2. Is there misreading of evidence?

3.  Is  there  any  non-consideration  of  glaring

inconsistency in the evidence which demolishes the

prosecution’s case?

4. Are the findings inconsistent with the evidence?

5. Have the courts overlooked striking features in

the  evidence  or  is  their  failure  to  consider

important piece of evidence?

6. Whether the evidence adduced by the prosecution

fall  short  of  the  test  of  reliability  and

acceptability and it is therefore unsafe to act

upon it?

29. The marriage took place on 24.1.1998.  According

to PW3 about 6 months after the marriage, demands were

raised for dowry.  Either a Maruti car or Rs.2 lakhs was

the demand.  There was physical cruelty according to PW1

father, and PW3 sister.  In December, 2000 the deceased,

meet both PW1 along with PW3 and complained about threats

and beatings. The death took place in February, 2001.

33

30.  The Troubling features -  There is evidence, which

establishes that the father of the appellant contributed

to the continued higher education of the deceased.  Is

that compatible with treating his daughter-in-law with

cruelty.  The father-in-law stands acquitted by the trial

Court.  The mother-in-law even according to PW3 met her

on 16.2.2001 and enquired about her daughter-in-law.  PW3

told her that her sister was depressed and asked  her to

take her home.  PW3 states that the deceased told her

that on the night previous to 16.2.2001, the appellant

had hurled abuse on her father and when she prevented the

appellant from abusing her father, she was beaten even

more.  If this be true, indeed, it is cruelty  near, in

point of time and bearing a link proximate to the time of

her  death  immediately  thereafter.  (The  doctor  has

conducted post mortem on 28.2.2001.  He has opined that

the probable time which elapsed between death and post-

mortem was about 12 days).  This mean that the tragic

death took place on the 16th or 17th of February, 2001. But

PW1 does not depose a word about the telephone call made

on the eve of 16.2.2001. There is evidence of PW3 that in

their estimation the status of the appellant was lower

34

and that they had represented that they had applied for

an  industrial  connection  and  would  start  their  own

industry.  That apart, Avtar Singh, the nephew of PW1,

who is referred to by PW1, as having direct knowledge of

certain aspects is not examined.  

31.  The trial Court has carefully discussed the two

versions  canvassed.  The  questions  which  we  posed as

troubling, most of them, was present in its mind.  The

High  Court  has  also  referred  to  the  defence  evidence

including DW6 and DW8.

32.  The  trial  Court,  however,  finds  solace  in

rejecting the defence version on the score that it cannot

be squared with the deceased visiting the home of PW3 on

16-02-2001, and it takes the view that she would have

been the last person for her to visit. It is also found

that the deceased did not go on being called by PW3. The

trial Court had the advantage of watching the demeanor of

the witnesses.  We cannot hold that the view taken by the

trial  Court  as  affirmed  by  the  High  Court  is  not

warranted as such by the materials on record.  We cannot

possibly  hold  that  the  view  taken  by  the  courts  is

35

manifestly perverse or that it is based on no evidence.

Even if we are persuaded to take a different view as

canvassed by the appellant we would not be justified in

interfering.  See the observations in Mst. Dalbir Kaur's

case (supra).

33. The upshot of the above discussion is that we

are not persuaded to interfere.  The appeal shall stand

dismissed.

…………………………….J.    (Ranjan Gogoi)

…………………………….J.    (Navin Sinha)

……………………………J.     (K.M. Joseph)

New Delhi; September  26, 2018