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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1592 OF 2011   

SHER SINGH @ PARTAPA                                  …..APPELLANT

Versus

STATE OF HARYANA                                          …..RESPONDENT

J U D G M E N T

  VIKRAMAJIT SEN, J.

 1 This Appeal  has been filed against  the Judgment  dated 16.12.2010  

passed by the learned Single Judge of the High Court of Punjab and Haryana  

dismissing  the  appeal  and  affirming  the  conviction  and  sentence  passed  

against the Appellant by the Trial Court under Sections 304B and 498A of  

the Indian Penal Code.   The marriage between the deceased, Harjinder Kaur  

and  the  accused-Appellant  took  place  on  22.2.1997.   The  case  of  the  

prosecution is that two months prior to her death on one of her visits to her  

parental home, the deceased informed her two brothers of cruelty connected  

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with  dowry  demands  meted  out  to  her  by  her  husband  and  his  family  

members.    They,  thereafter,  conveyed  this  information  to  their  uncle-

Complainant, Angrej Singh viz. that the accused and his family have been  

harassing  her  with  a  demand  for  a  motorcycle  and  a  fridge.   The  

Complainant  advised  her  to  return  to  her  matrimonial  house  with  the  

assurance  that  a  motorcycle  and  a  fridge  would  be  arranged  upon  the  

marriage of her brothers.  On 7.2.1998, one Rajwant Singh informed the  

Complainant that the deceased had committed suicide by consuming some  

poisonous  substance  at  her  matrimonial  house  in  village  Danoli.   The  

Complainant, along with the brothers of the deceased and other members of  

the  village,  rushed  to  the  matrimonial  house  of  the  deceased  and  after  

confirming her death, lodged an  FIR on the next day i.e., on 8.2.1998.

2 In all, four accused persons, namely, Appellant/Sher Singh (husband),  

Devinder  Singh  (brother-in-law),  Jarnail  Singh  (father-in-law),  and  

Sukhvinder Kaur (mother-in-law) were tried by the learned Sessions Judge,  

Karnal under Sections 304B and 498A IPC.  After considering the material  

on  record  the  learned Sessions  Judge  had  convicted  all  the  accused  and  

sentenced  them to  undergo rigorous  imprisonment  for  seven years  under  

Section 304B; and to undergo rigorous imprisonment for three years and to  

pay a fine of Rs.5,000/- and, in default of payment of such fine, to further  

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undergo rigorous imprisonment for a period of  six months under Section  

498A.   

3 Two separate appeals were filed before the High Court of Punjab and  

Haryana at Chandigarh, one by Devinder Singh (brother-in-law) along with  

Jarnail Singh (father-in-law) and another by the Appellant herein.  The High  

Court  allowed the appeal  filed by Devinder Singh and Jarnail  Singh and  

acquitted them with an observation that the prosecution has failed to prove  

any torture committed by them and, therefore, Sections 304B and 498A IPC  

were not attracted.  Quite palpably, unlike the Trial Court, the High Court  

construed even Section 304B  requires the prosecution to ‘prove’ beyond  

reasonable doubt in contradistinction to ‘show’ the participative role of the  

husband’s relatives as a prelude to the deemed guilt kicking  in.  It was also  

observed by the High Court that in such cases there is a tendency of roping  

in all the family members disregarding the fact that they resided separately.  

However, the Appeal filed by the Appellant was dismissed holding that it  

was for the accused/Appellant to explain that the unnatural death of his wife  

Harjinder Kaur was not due to cruelty meted out to her in the matrimonial  

home and that he has failed in doing so.  

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4 Learned Counsel appearing on behalf of the Appellant has submitted  

that the conviction of the Appellant is liable to be set aside as there is a  

specific  finding  of  the  learned  Sessions  Court  that  there  is  no  positive  

evidence  on  record  to  the  effect  that  the  accused  persons  ever  raised  a  

demand for a motorcycle and a fridge and that both the Courts below have  

failed to fully appreciate the inconsistencies in the depositions of PWs 4 and  

7, which could not be relied upon as both were interested witnesses.  It is  

further  submitted  that  the  High  Court,  on  same  set  of  pleadings  and  

evidence, was not justified in acquitting the other accused persons, namely,  

Devinder  Singh  (brother-in-law)  and  Jarnail  Singh  (father-in-law),  while  

convicting the Appellant.  In support of this argument, learned Counsel for  

the Appellant has relied on the decision of this Court in Narayanamurthy v.  

State  of  Karnataka  (2008)  16  SCC  512.   It  is  also  contended  that  the  

prosecution has not established that soon before her death, the deceased had  

been subjected to any cruelty or harassment in connection with any demand  

for dowry.   Support has been drawn from Durga Prasad v. State of Madhya  

Pradesh (2010) 9 SCC 73.

5 Out  the  outset  we  shall  briefly  analyse  the  cauldron of  legislation  

passed by Parliament on the subject which we are presently engaged with.  

Confronted with the pestilential proliferation of incidents of married women  

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being put to death because of avaricious and insatiable dowry demands, and/  

or of brides being driven to take their own lives because of cruelty meted out  

to them by their husband and his family also because of dowry expectations,  

Parliament enacted the Dowry Prohibition Act, 1961 (for short ‘the Dowry  

Act’) in an endeavour to eradicate the social evil of giving and taking of  

dowry.   Section  2  thereof  defines  ‘dowry’  as  including  any  property  or  

valuable security given or agreed to be given by one party to the other party  

around the time of marriage.   Section 3 makes it punishable to give or take  

or abet the giving or taking of dowry; the punishment for the offence being  

not less than five years, and with a fine of Rs.15,000/- or the amount of the  

value  of  such  dowry,  whichever  is  more.    Sub-section  (2)   thereof  

understandably makes an exclusion in respect of presents given at the time  

of marriage provided they are of  a customary nature and the value thereof is  

not excessive having regard to the financial status of the concerned parties.  

This Section also mandates the drawing up of a list of presents received in  

contemplation of marriage.   Section 4 makes it punishable even to demand  

dowry and if any agreement is entered into for the giving or taking of dowry,  

Section  5  makes  it  void.    Section  6  clarifies  that  where  any  dowry  is  

received by any person other than the woman in connection with whose  

marriage it  is given, it must be transferred to her within three months of  

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marriage or receipt of the dowry.  The passing of this statute, however, did  

not  eradicate  the  scourge  of  dowry  demands,  resulting  in  Parliament  

devoting its attention yet again to what was required to free society of this  

pernicious practice.   

6 As is evident from a perusal of the Statement of Objects and Reasons  

to  the Criminal  Law (Second Amendment)  Act,  1983 [Act  46 of  1983],  

Parliament continued to be concerned with the increasing number of dowry  

deaths.   By this legislation Chapter XX A was introduced into the Indian  

Penal Code (IPC) containing the solitary Section 498A, in order to “deal  

effectively not only with cases of dowry deaths, but also cases of cruelty to  

married women by their in-laws.”   Conspicuously,  this Section does not  

employ  the  word  ‘dowry’  at  all.    In  essence,  the  amendment  makes  

matrimonial cruelty to the wife punishable with imprisonment for a term  

which may extend to three years together with fine.   The Explanation to  

Section 498A defines ‘cruelty’ in Clause (a) to the Explanation to first mean  

wilful conduct as is likely to drive the woman to commit suicide or to cause  

grave injury or danger to her life.  Since there is no allusion to dowry it  

converts  cruelty,  which  would  ordinarily  entitle  the  wife  to  seek  a  

dissolution of her marriage, into a criminal act.   Parliament rightly restricted  

the  subject  offence  to  only  cruelty  perpetuated  on  women  since  their  

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emancipation, in meaningful terms, largely remains a mirage.   One can only  

optimistically  hope  that  the  increasing  literacy  amongst  females,  as  also  

amendments in Hindu Law granting a daughter a share in her father’s estate,  

will sooner than later put an end to this malaise.   As we are not concerned in  

this  Appeal  with  events  falling  within  the  ambit  of  Clause  (a)  of  the  

Explanation,  we shall  desist  from recording any further  reflection on the  

sweep and intent  and possible  incongruities  contained therein as such an  

exercise  on our  part  would  avoidably  add  to  the  bludgeoning  burden  of  

obiter dicta, which invariably causes confusion.   Secondly, broadly stated,  

Clause (b) to the Explanation of Section 498A IPC, postulates harassment  

meted out to the woman with a view to coercing her or her relatives to meet  

any unlawful demand for any property or valuable security.  Although this  

Clause does not employ the word ‘dowry’, it is apparent that its object is to  

combat this odious societal excrescence.   Act 46 of 1983 simultaneously  

incorporated  changes  in  Section  174(3)  of  the  Cr.P.C.  pertaining  to  the  

suicide or death of a woman within seven years of her marriage; it mandated  

the examination by the nearest Civil Surgeon of the body of the unfortunate  

woman.   In addition thereto, Section 113A was introduced into the Indian  

Evidence Act, 1872.   [Although not relevant to the present context, it is  

poignant  that  even  though  Section  113  was  under  its  active  scrutiny,  

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Parliament  did  not  think  it  necessary  to  excise  the  existing  and  entirely  

irrelevant Section 113 which speaks of the cession of ‘British’ territory to  

any ‘Native State’].   Section 113A, introduced into the Evidence Act by  

Clause 7 of Act 46 of 1983, specifies that when the question is whether the  

commission of suicide by a woman had been abetted by her husband or his  

relative  and it is shown that she has committed suicide within a period of  

seven years  from the date of  her  marriage and that  her  husband or such  

relative of her husband had subjected her to cruelty, the Court may presume,  

having regard to all the other circumstances of the case, that such suicide  

had been abetted by her husband or by relatives of her husband.

7 Within the short span of three years Parliament realized the necessity  

to make the law more stringent and effective by introducing amendments to  

the Dowry Act, as well as the IPC by enacting Act 43 of 1986.   These  

amendments,  inter  alia,  made the  offences  dealt  with  in  the  Dowry Act  

cognizable for certain purposes and also made them non-bailable as well as  

non-compoundable.   By the introduction of Section 8A of the Dowry Act  

the burden of proof was reversed in respect of prosecutions for taking or  

abetting the taking or demanding of any dowry by making the concerned  

person responsible for proving that he had not committed any such offence.  

Contemporaneously Section 304B was inserted into the IPC.   The newly  

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added Section stipulates that 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.  Sub-section (2) makes this offence punishable  

with imprisonment for a term which shall not be less than seven years and  

which may extend to imprisonment  for  life.    Section  113B was further  

incorporated into the Evidence Act; [yet again ignoring the futility, if not  

ignominy, of retaining the withered appendage in the form of the existing  

Section 113, and further perpetuating an anachronism.]     Be that as may be,  

the newly introduced Section 113B states that when the question is whether  

a person has committed the death of a married woman and it is shown that  

soon before her death such woman had been subjected by such person to  

cruelty  or  harassment  or  in  connection  with  any demand for  dowry,  the  

Court  shall  presume  that  such  person  has  caused  dowry  death.   The  

Explanation harks back to the simultaneously added Section 304B of the  

IPC for  the definition of  dowry death,  clarifying thereby that  the person  

alluded to in this Section is her husband or any relative of her husband.   It is  

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noteworthy that whilst Section 113A of the Evidence Act reposes discretion  

in the Court to draw a presumption so far as the husband’s abetment in his  

wife’s  suicide,  Parliament  has  mandated  the  Court  to  draw  at  least  an  

adverse inference under Section 113B in the event of a dowry death.   It  

seems to us that where a wife is driven to the extreme step of suicide it  

would be reasonable to assume an active role of her husband, rather than  

leaving it to the discretion of the Court.

8 The legal  regime pertaining to the death of  a woman within seven  

years of her marriage thus has numerous features, inter alia:  

(i) the meaning of “dowry” is as placed in Section 2 of the Dowry  

Prohibition Act.

(ii) dowry death stands defined for all purposes in Section 304B of  

the IPC. It does exclude death in normal circumstances.  

(iii)  If death is a result of burns or bodily injury, or otherwise than  

under normal circumstances, and it occurs within seven years of  

the marriage and, it is ‘shown’ in contradistinction to ‘proved’  

that  soon  before  her  death  she  was  subjected  to  cruelty  or  

harassment by her husband or his relatives, and the cruelty or  

harassment is connected with a demand of dowry, it shall be a  

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dowry death, and the husband or relative shall  be  deemed to  

have caused her death.

(iv) To  borrow  from  Preventive  Detention  jurisprudence  –  there  

must be a live link between the cruelty emanating from a dowry  

demand and the death of a young married woman, as is sought  

to be indicated by the words “soon before her death”, to bring  

Section  304B into  operation;  the  live  link  will  obviously  be  

broken if the said cruelty does not persist in proximity to the  

untimely and abnormal death.   It cannot be confined in terms  

of time; the query of this Court in the context of condonation of  

delay  in  filing  an  appeal  –  why  not  minutes  and  second  –  

remains apposite.

(v) the  deceased  woman’s  body  has  to  be  forwarded  for  

examination by the nearest Civil Surgeon.

(vi)   once the elements itemised in (iii) above are shown to exist the  

husband or relative   shall be deemed to have caused her death.

(vii)   the consequences and ramifications of this ‘deeming’ will be  

that the prosecution does not have to prove anything more, and  

it is on the husband or his concerned relative that the burden of  

proof shifts as adumbrated in Section 113B, which finds place  

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in Chapter VII of the Evidence Act.    This Chapter first covers  

‘burden of proof’ and then “presumption”, both being constant  

bed-fellows.    In  the  present  context  the  deeming  or  

presumption of responsibility of death are synonymous.  

  9 Death can be accidental, suicidal or homicidal.   The first type is a  

tragedy and no criminal  complexion is  conjured up,  unless  statutorily  so  

devised, as in Section 304A; but even there the culpable act is that of the  

person actually causing the death.  It seems to us that Section 304B of the  

IPC,  inasmuch  as  it  also  takes  within  its  contemplation  “the  death  of  a  

woman  …..  otherwise  than  under  normal  circumstances”,  endeavours  to  

cover murders masquerading as accidents.    Justifiably, the suicidal death of  

a married woman who was meted out with cruelty by her husband, where  

her demise occurred within seven years of marriage in connection with a  

dowry demand should lead to prosecution and punishment under Sections  

304B and/or 306 of the IPC.    However, if the perfidious harassment and  

cruelty by the husband is conclusively proved by him to have had no causal  

connection  with  his  cruel  behaviour  based  on  a  dowry  demand,  these  

provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007)  

11 SCC 205, although some reservation may remain regarding the reach of  

Section 306.   

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 10 It is already empirically evident that the prosecution, ubiquitously and  

in dereliction of duty, in the case of an abnormal death if  a young bride  

confines its charges to Section 304B because the obligation to provide proof  

becomes least burdensome for it; this is the significance that attaches to a  

deeming provision.  But, in any death other than in normal circumstances,  

we see no justification for not citing either Section 302 or Section 306, as  

the circumstances of the case call for.   Otherwise, the death would logically  

fall in the category of an accidental one.   It is not sufficient to include only  

Section 498A as  the punishment  is relatively light.    Homicidal  death is  

chargeable and punishable under Sections 302 and 304B if circumstances  

prevail triggering these provisions.   This Court has repeatedly reiterated this  

position, including in State of Punjab v. Iqbal Singh, 1991 (3) SCC 1 and  

quite recently in Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7)  

SCC 256.

11 Some  doubts  remain  on  the  aspect  of  presumption  of  innocence,  

deemed culpability and burden of proof.  One of our Learned Brothers has in  

Pathan Hussain Basha v. State of Andhra Pradesh (2012) 8 SCC 594, after  

extensively  extracting  from the  previous  judgment  authored by him (but  

without indicating so) expressed two opinions – (a) that Article 20 of the  

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Constitution of India contains a presumption of innocence in favour of a  

suspect and, (b) that the concept of deeming fiction is hardly applicable to  

criminal jurisprudence.   The logical consequence of both these conclusions  

would lead to the striking down of Section 8A of the Dowry Act, Section  

113B of the Evidence Act, and possibly Section 304B of the IPC, but neither  

decision does so.  So far as the first conclusion is concerned, suffice it to  

reproduce Article 20 of the Constitution:  

20.  Protection in respect of conviction for offences.-(1) No  person shall be convicted of any offence except for violation of  a law in force at the time of the commission of the act charged  as an offence, nor be subjected to a penalty greater than that  which might have been inflicted under the law in force at the  time of the commission of the offence. (2) No person shall be prosecuted and punished for the same  offence more than once. (3) No person accused of any offence shall be compelled to be a  witness against himself.

 Even though there may not be any Constitutional protection to the concept  

of presumption of innocence, this is so deeply ingrained in all Common Law  

legal  systems so as to render it  ineradicable even in India,  such that  the  

departure or  deviation from this  presumption demands statutory sanction.  

This is what the trilogy of dowry legislation has endeavoured to ordain.

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12 In our opinion, it is beyond cavil that where the same word is used in  

a section and/or in sundry segments of a statute, it should be attributed the  

same meaning, unless there are compelling reasons to do otherwise.  The  

obverse is where different words are employed in close proximity, or in the  

same section,  or in the same enactment, the assumption must  be that the  

legislature  intended  them  to  depict  disparate  situations,  and  delineate  

dissimilar and diverse ramifications.  Ergo, ordinarily Parliament could not  

have proposed to ordain that the prosecution should “prove” the existence of  

a  vital  sequence  of  facts,  despite  having employed the word “shown” in  

Section 304B.  The question is whether these two words can be construed as  

synonymous.   It  seems to us that if  the prosecution is required to prove,  

which always means beyond reasonable doubt, that a dowry death has been  

committed, there is a risk that the purpose postulated in the provision may be  

reduced to a cipher.  This method of statutory interpretation has consistently  

been disapproved and deprecated except in exceptional instances where the  

syntax permits reading down or reading up of some words of the subject  

provisions.

13 In Section 113A of the Evidence Act Parliament has, in the case of  a  

wife’s suicide, “presumed” the guilt of the husband and the members of his  

family.    Significantly,  in Section 113B which pointedly refers to dowry  

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deaths, Parliament has again employed the word “presume”.    However, in  

substantially similar circumstances, in the event of a wife’s unnatural death,  

Parliament has in Section 304B “deemed” the guilt of the husband and the  

members of his family.   The Concise Oxford Dictionary defines the word  

“presume” as:  supposed to be true, take for granted;  whereas “deem” as:  

regard, consider; and whereas “show” as: point out and prove.  The Black’s  

Law Dictionary (5th Edition) defines the word “show” as- to make apparent  

or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge,  

believe, condemn, determine, construed as if true; “presume” as- to believe  

or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of  

law,  statutory  or  judicial,  by  which finding of  a  basic  fact  gives  rise  to  

existence of presumed fact, until presumption is rebutted.”   The Concise  

Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct  

definition of burden of proof which is worthy of reproduction:

“Burden of Proof: The duty of a party to litigation to prove a  fact or facts in issue.  Generally the burden of proof falls upon  the party who substantially asserts the truth of a particular fact  (the  prosecution  or  the  plaintiff).   A  distinction  is  drawn  between the  persuasive (or  legal) burden, which is carried by  the party who as a matter of law will lose the case if he fails to  prove the fact in issue; and the  evidential burden (burden of   adducing evidence  or  burden of going forward), which is the  duty  of  showing that  there  is  sufficient  evidence  to  raise  an  

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issue  fit  for  the  consideration  of  the  trier  of  fact  as  to  the  existence or non-existence of a fact in issue.

The  normal  rule  is  that  a  defendant  is  presumed  to  be  innocent until he is proved guilty; it is therefore the duty of the  prosecution to prove its case by establishing both the actus reus  of  the  crime  and  the  mens  rea.  It  must  first  satisfy  the  evidential burden to show that its allegations have something to  support them. If it cannot satisfy this burden, the defence may  submit or the judge may direct that there is no case to answer,  and the judge must direct the jury to acquit.  The prosecution  may  sometimes  rely  on  presumptions  of  fact  to  satisfy  the  evidential  burden  of  proof  (e.g.  the  fact  that  a  woman  was  subjected to violence during sexual  intercourse will  normally  raise a presumption to support a charge of rape and prove that  she  did  not  consent).   If,  however,  the  prosecution  has  established a basis for its case, it must then continue to satisfy  the persuasive burden by proving its  case beyond reasonable  doubt (see proof beyond reasonable doubt).  It is the duty of the  judge to tell the jury clearly that the prosecution must prove its  case and that it must prove it beyond reasonable doubt; if he  does not give this clear direction, the defendant is entitled to be  acquitted.

There  are  some  exceptions  to  the  normal  rule  that  the  burden of proof is upon the prosecution.  The main exceptions  are as follows. (1) When the defendant admits the elements of  the crime (the  actus reus  and  mens rea) but pleads a special  defence, the evidential burden is upon him to prove his defence.  This may occur, the example, in a prosecution for murder in  which the defendant raises a defence of self-defence. (2) When  the defendant pleads automatism, the evidential burden is upon  him. (3) When the defendant pleads insanity, both the evidential  and persuasive burden rest upon him.  In this case, however, it  is sufficient if he proves his case on a balance of probabilities  (i.e. he must persuade the jury that it is more likely that he is  telling the truth than not). (4) In some cases statute expressly  places  a  persuasive  burden on the defendant;  for  example,  a  person who carries an offensive weapon in public is guilty of an  offence  unless  he  proves  that  he  had  lawful  authority  or  a  reasonable excuse for carrying it”.  

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   14 As is  already noted above,  Section 113B of the Evidence Act and  

Section  304B  of  the  IPC  were  introduced  into  their  respective  statutes  

simultaneously and, therefore, it must ordinarily be assumed that Parliament  

intentionally used the word ‘deemed’ in Section 304B to distinguish this  

provision from the others.   In actuality, however, it is well nigh impossible  

to give a sensible and legally acceptable meaning to these provisions, unless  

the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’  

as freely interchangeable with the word ‘deemed’.  In the realm of civil and  

fiscal  law, it  is  not  difficult  to import  the ordinary meaning of  the word  

‘deem’ to denote a set of circumstances which call to be construed contrary  

to what they actually are.   In criminal legislation, however, it is unpalatable  

to  adopt  this  approach  by  rote.   We  have  the  high  authority  of  the  

Constitution  Bench  of  this  Court  both  in  State  of  Travancore-Cochin  v.  

Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil  

Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to  

ascertain the purpose behind the statutory fiction brought about by the use of  

the word ‘deemed’ so as to give full effect to the legislation and carry it to  

its logical conclusion.   We may add that it is generally posited that there are  

rebuttable  as  well  as  irrebuttable  presumptions,  the  latter  oftentimes  

assuming an artificiality as actuality by means of a deeming provision.   It is  

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abhorrent  to  criminal  jurisprudence  to  adjudicate  a  person  guilty  of  an  

offence  even  though  he  had  neither  intention  to  commit  it  nor  active  

participation in its commission.   It is after deep cogitation that we consider  

it imperative to construe the word ‘shown’ in Section 304B of the IPC as to,  

in fact, connote ‘prove’.   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  

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of proof upon him and requiring him to produce evidence dislodging his  

guilt, beyond reasonable doubt.  It seems to us that what Parliament intended  

by using the word ‘deemed’ was that only preponderance of evidence would  

be insufficient to discharge the husband or his family members of their guilt.  

This interpretation provides the accused a chance of proving their innocence.  

This is also the postulation of Section 101 of the Evidence Act.  The purpose  

of Section 113B of the Evidence Act and Section 304B of the IPC, in our  

opinion,  is  to  counter  what  is  commonly  encountered  –  the  lack  or  the  

absence of evidence in the case of suicide or death of a woman within seven  

years  of  marriage.     If  the  word “shown”  has  to  be  given its  ordinary  

meaning then it  would only require the prosecution to merely present  its  

evidence in Court, not necessarily through oral deposition, and thereupon  

make  the  accused  lead  detailed  evidence  to  be  followed  by  that  of  the  

prosecution.   This  procedure  is  unknown to Common Law systems,  and  

beyond the contemplation of the Cr.P.C.    

15 The width and amplitude of a provision deeming the guilt of a person  

in a legal system founded on a Constitution needs to be briefly reflected on.  

The Constitution is the grundnorm on which the legal framework has to be  

erected and its plinth cannot be weakened for fear of the entire structure  

falling to the ground.   If  the Constitution expressly affirms or  prohibits  

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particular  state  of  affairs,  all  statutory  provisions  which  are  incongruent  

thereto must be held as  ultra vires and, therefore, must not be adhered to.  

We  have  already  noted  that  Article  20  of  our  Constitution  while  not  

affirming the presumption of innocence does not prohibit it, thereby, leaving  

it  to  Parliament  to  ignore  it  whenever  found  by  it  to  be  necessary  or  

expedient.   A percutaneous scrutiny reveals that some legal principles such  

as presumption of innocence can be found across a much wider legal system,  

ubiquitously in the Common Law system, and restrictively in the Civil Law  

system.  It seems to us that the presumption of innocence is one such legal  

principle  which  strides  the  legal  framework  of  several  countries  owing  

allegiance  to  the  Common  Law;  even  International  Law  bestows  its  

imprimatur thereto.   Article 11.1 of  the Universal  Declaration of  Human  

Rights, 1948 states – “Everyone charged with a penal offence has the right  

to be presumed innocent until proved guilty according to law in a public trial  

at which he has had all the guarantees necessary for his defence.”   Article  

14(3)(g) of the International Covenant on Civil and Political Rights, 1966,  

assures  as  a  minimum  guarantee  that  everyone  has  a  right  not  to  be  

compelled to testify against himself or to confess guilt.   Article 6 of the  

European Convention for the Protection of  Human Rights and Fundamental  

Freedoms, firstly,  promises the right to a fair trial and secondly, assures that  

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anyone charged with a criminal offence shall  be presumed innocent until  

proved guilty according to law.   We may immediately emphasise that the  

tenet of presumed innocence will always give way to explicit legislation to  

the contrary.   The presumption of innocence has also been recognised in  

certain  circumstances  to  constitute  a  basic  human  right.    Parliament,  

however,  has  been  tasked  with  the  responsibility  of  locating  myriad  

competing,  if  not  conflicting,  societal  interests.   It  is  quite  apparent  that  

troubled  by  the  exponential  increase  in  the  incidents  of  bride  burning,  

Parliament thought it prudent, expedient and imperative to shift the burden  

of proof in contradistinction to the onus of proof on to the husband and his  

relatives  in  the  cases  where  it  has  been  shown  that  a  dowry  death  has  

occurred.   The inroad into or dilution of the presumption of innocence of an  

accused has, even de hors statutory sanction, been recognised by Courts in  

those cases where death occurs in a home where only the other spouse is  

present; as also where an individual is last seen with the deceased.   The  

deeming provision in Section 304B is, therefore, neither a novelty in nor an  

anathema to our criminal law jurisprudence.[See Mir Mohammad Omar and  

Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.

16 It has already been pointed out that both in Pathan Hussain Basha as  

well as in Ashok Kumar v. State of Haryana 2010 (12) SCC 350, authored  

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by our same learned Brother, the use of word “shown” in Section 304B has  

palpably  not  been  given  due  weightage  inasmuch  as  it  has  been  freely  

substituted  by  the  word  “proved”.    To  the  contrary  in  Nallam  Veera  

Stayanandam v. Public Prosecutor 2004 (10) SCC 769, it has been opined  

that “it is for the defence in this case to satisfy the Court that irrespective of  

the prosecution case in regard to dowry demand and harassment, the death of  

the deceased has not occurred because of that and that the same resulted  

from a cause totally alien to such dowry demand or harassment.”

17  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” in Section 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,  

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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 that Section 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  

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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.  

18 Now, to the case in hand.  It has been contended before us, as was also  

unsuccessfully argued before both the Courts below that there was a ‘delay’  

in lodging the FIR.   There is no perversity in the concurrent views that its  

lodgement after ten hours on the day next after the tragedy, i.e. 8/02/98 did  

not constitute inordinate delay such as would justifiably categorising the FIR  

as an after-thought or as contrived.  The Complainant along with family and  

friends had to travel to another village; he would have had to first come to  

terms  with  the  tragedy,  make  enquiries  and  consider  the  circumstances,  

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before recording the FIR.  Equally preposterous is the argument that once  

the High Court had seen fit to acquit the other accused, namely, Davinder  

Singh  (brother-in-law)  and  Jarnail  Singh  (father-in-law)  the  

husband/Appellant  should  have  been  similarly  acquitted.    It  cannot  be  

ignored that the accused was not living with his parents and brother, and it is  

justified  nay  necessary  to  require  stronger  proof  to  implicate  the  family  

members of the husband.   It has been essayed by the learned counsel for the  

Appellant to impress upon us that the cruelty postulated in this provision has  

not been shown to have occurred “soon before her death”.  This argument,  

assumes on a demurrer, that statutory cruelty had, in fact, been committed.  

The deceased and the Appellant were married in February,  1997 and the  

former committed suicide within one year; to even conjecture that it was not  

soon before death, has only to be stated to be stoutly shot down.    

19 We must consider,  lastly,  whether the prosecution has successfully  

‘shown’ that  the deceased was subjected to cruelty which was connected  

with  dowry  demands.    We  may  usefully  reiterate  here  that  keeping  in  

perspective the use of “shown” instead of “proved” the onus would stand  

satisfied on the anvil of preponderance of evidence.

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20 The  two  prosecution  witnesses,  on  whom  the  entire  episode  is  

predicated,  are  PW4  and  PW7.   The  Complainant/PW4-Angrez  Singh  

appears to be the eldest in the family as he has stated that his brother, i.e. the  

father  of  the  deceased,  had already died.   He  has  stated   that  sufficient  

kanyadan was given at the time of marriage; that two months prior to her  

death the deceased had, on one of her visits to their home, conveyed to her  

brothers  that  her  husband  and  his  family  were  harassing  her  for  dowry,  

especially a motorcycle and fridge.   On learning of these demands PW4 had  

told her that these goods would be provided at the time of the marriage of  

her brothers.   PW4 was told by Rajwant Singh that his niece had committed  

suicide.   The Complainant  has  admitted that  there  were  no demands for  

dowry either at the betrothal or at the time of marriage.     Her maternal  

uncle  Gurdip  Singh  avowedly  fixed/mediated/arranged  the  unfortunate  

marriage, yet he was not apprised of the dowry demands by Angrez Singh.  

He has also denied that any panchayat was convened regarding these dowry  

demands, whereas Sukhwant Singh PW7, the real brother of the deceased,  

has categorically stated in cross-examination that a panchayat comprising  

both  Angrez  Singh  and  Gurdip  Singh  and  several  others  had  held  

deliberations.  

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21 In cross-examination, the complainant has admitted that the deceased  

never spoke to him about her domestic problems or regarding demand of  

dowry by the accused except once, on the last occasion of her visit.  He has  

further admitted that even her brothers had not conveyed any information to  

him in this  regard.    On the fateful  day PW4 stated that  he reached the  

village where the deceased resided and where she had committed suicide at  

about 7.00 pm on 7.2.1998 and that he immediately left for that place along  

with several others after ascertaining facts; the following morning he lodged  

the report at P.S. Assandh.   What is important from his deposition is that he  

has deposed of only one alleged demand of dowry.  

22 Sukhwant Singh, the real brother of the deceased has been examined  

as PW7 and he has deposed that the deceased visited their house two months  

prior to her death and narrated that the Appellant, his younger brother, their  

father and mother used to harass and torture her and demand   dowry in the  

form of motorcycle and fridge and that he had told these facts to their uncle,  

Angrez Singh, as well as to his elder brother Jaswant Singh.   He has further  

stated that he made the deceased understand about their financial difficulties  

and promised to give motorcycle and fridge after his marriage and that of her  

brother.    He was informed of the death of the deceased on 7.2.98 by Angrez  

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Singh/PW4.  In cross-examination even this witness has admitted that no  

dowry demands were made prior to or at the time of marriage.     He has also  

deposed about a panchayat which included Gurdeep Singh (maternal uncle)  

as  well  as  Angrez  Singh/PW4  who,  as  has  already  been  noted,  has  

categorically stated that no such Panchayat took place.  The version of the  

Appellant was put to him and denied, namely, that the deceased was hot  

tempered, wanted him to shave his hair, forced him to live separately from  

his parents, wanted him to shift to Karnal and start a business, all of which  

were against his wishes.  The fundamental and vital question that the Court  

has to ask itself and find a solid answer to, is whether this evidence even  

preponderantly  proves  that  the  Appellant  had  treated  the  deceased  with  

cruelty connected with dowry demands.   It is only if the answer is in the  

affirmative  will  the  Court  have  to  weigh  the  evidence  produced  by  the  

Appellant  to  discharge  beyond  reasonable  doubt,  the  assumption  of  his  

deemed guilt.   We have not lost sight of the fact that the deceased was  

pregnant  at  the  time  of  her  suicide  and  that  only  extraordinary  and  

overwhelming factors would have driven her to take her life along with that  

of her unborn child.   The fact remains that she did so.  What motivated or  

compelled her to take this extreme and horrific step will remain a mystery,  

as we are not satisfied that the prosecution has proved or even shown that  

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she was treated with such cruelty, connected with dowry demands, as led her  

to commit suicide.   In the normal course dowry demands are articulated  

when the marriage is agreed upon and is certainly reiterated at the time when  

it  is  performed  and  such  demands  continue  into  a  couple  of  years  of  

matrimony.  In normal course, if a woman is being tortured and harassed,  

she would not remain reticent of this state of affairs and would certainly  

repeatedly inform her  family.    This  is  specially  so before she takes  the  

extreme step of taking her own life.   Added to this are the inconsistencies  

and contradictions between the statements of PW4 and PW7 with regard to  

the panchayat and the presence of and knowledge of Gurdip Singh.   It is for  

these  reasons  that  we  are  of  the  opinion  that  the  prosecution  has  not  

shown/presented and or proved even by preponderance of probabilities that  

the deceased had been treated with cruelty emanating from or founded on  

dowry demands.    It  is in the realm of a possibility that the ingestion of  

aluminium phosphate may have been accidental.

23 We  may  only  observe  that  in  his  examination  under  Section  313  

Cr.P.C. the accused has proffered details of his defence.   This is not a case  

where he has merely denied all the questions put by the Court to him.   As  

already  stated  above,  because  of  the  insufficiency  or  the  unsatisfactory  

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nature of the facts or circumstances shown by the prosecution, the burden of  

proving his innocence has not shifted to the Appellant, in the present case.

24 In this analysis,  the Appeal is allowed and the impugned Judgment  

convicting and punishing the Appellant is set aside.  

                    ............................................J.            [VIKRAMAJIT SEN]

                      ............................................J.

          [KURIAN JOSEPH] New Delhi; January 09, 2015.

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