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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO (S). 37 OF 2011     

Vijay Pal Singh and others … Appellant  (s)   

Versus

State of Uttarakhand … Respondent  (s)

J U D G M E N T  

KURIAN, J.:   

1. The  appellants  faced  trial  before  the  IIIrd  Additional  

Sessions Judge,  Nainital,  Camp Haldwani  in  Sessions Trial  No.  

281 of 1991 for offences punishable under Section 302 read with  

Section 34 of the Indian Penal  Code (45 of 1860) (hereinafter  

referred to as ‘IPC’), Section 304B read with Section 34 of IPC,  

Section  498A  of  IPC  and  Section  201  of  IPC.   Sessions  court  

acquitted all of them; but in appeal by the State, the High Court  

convicted them under Section 304B read with Section 34 of IPC,  

Section 498A of IPC and Section 201 of IPC and sentenced them  

for  seven  years  rigorous  imprisonment,  two  years  rigorous  

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imprisonment  with  fine  of  Rs.2,000/-  and  one  year  rigorous  

imprisonment,  respectively,  for  each  of  them.  Hence,  this  

appeal.  

2. It  is the prosecution case that the marriage between the  

second appellant-Narendra Singh-son of the first appellant-Vijay  

Pal  Singh and the  deceased Saroj  daughter  of  Ramesh Singh  

took place on 10.02.1991. PW-1 was informed on 25.05.1991, by  

the first appellant-Vijay Pal Singh through his son Rakesh Singh  

that  Saroj  was  found  missing  from  the  intervening  night  of  

23/24th May, 1991. This information, PW-1 received around 08.00  

a.m. on 25.05.1991 and, thereafter, he lodged a complaint at the  

Police Station, Jaspur. On the same day, PW-2-Samar Pal Singh,  

Village Pradhan, lodged a report at Police Station, Dillari stating  

therein that one Sukhe had informed him that he had seen a  

dead body of an unknown woman in burnt condition in the forest  

area on the side of the road. Thereafter, the case was registered  

under  Section  302  read  with  Section  201  of  IPC.  PW-8-Ashok  

Kumar  was  entrusted  with  the  investigation.  The  usual  

formalities on inquest etc. were undertaken and the body was  

sent  for  postmortem  examination.  PW-10-Dr.  S.  K.  Arora  

conducted the postmortem on 26.05.1991 at 04.40 p.m.   

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3. Ramesh  Singh-father  of  the  deceased,  on  26.05.1991,  

lodged another petition at Police Station, Dillari alleging that his  

daughter  Saroj,  aged about  20-22 years,  had  got  married  on  

10.02.1991 and after the marriage, his daughter had gone back  

to her in-laws’ house at Kasampur, Police Station, Jaspur, District  

Nainital  with her  husband Narendra Singh two times,  and the  

third time on 19.05.1991, his               son-in-law Narendra Singh  

had come at 12 noon and had taken Saroj  along with him at  

04.00 p.m. It was alleged that the appellants were continuously  

making dowry demands for television, fridge and cooler and he  

had given them an assurance to fulfill the same, if given some  

time. But due to his weak economic position, he could not fulfill  

those  demands  immediately.  When  the  husband  came  to  

Ramesh Singh’s house to take back his daughter Saroj to her  

matrimonial home for the second time, he was accompanied by  

his father Vijay Pal Singh, his younger brother-Rakesh Singh and  

his brother-in-law-Gyan Chandra and all of them had threatened  

him  with  dire  consequences  if  the  dowry  demands  were  not  

fulfilled. They also threatened to cause harm to her in case the  

dowry demand was not fulfilled. The said incident took place in  

the  presence  of  the  family  members  of  PW-1-Ramesh  Singh,  

people  in  the  neighbourhood  and  some  villagers  also.  It  was  

further  alleged that  his  son-in-law Narendra Singh went along  3

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with his daughter on the assurance that their dowry demands  

would be fulfilled. On 25.05.1991, at about 08.00 a.m., Rakesh  

Singh  came  to  his  house  and  told  him  that  Saroj  had  been  

missing  since  the  intervening  night  of  23/24th May,  1991.  

Ramesh Singh thereafter went to Kasampur and enquired about  

Saroj but could not get any information about her.

4. On 26.05.1991, he came to know from the police that they  

had recovered a partly burnt dead body of an unknown lady from  

the forest of village Sahaspuri on 25.05.1991 and the same had  

been  sent  to  Muradabad  for  postmortem.  On  receiving  such  

information,  Ramesh  Singh  reached  the  place  of  postmortem  

and,  by  seeing  the  dead  body  and  the  half  burnt  clothes,  

earrings, ring (anguthi),  ring (challa) and bangles on the dead  

body, he identified the dead body as that of his daughter Saroj.  

After the postmortem, he took the dead body to Supardagi for  

cremation. Ramesh Singh alleged that his son-in-law Narendra  

Singh, father of his son-in-law-Vijay Pal Singh, brother of his son-

in-law-Rakesh Singh and brother-in-law of his son-in-law, Gyan  

Chandra, had committed the murder of his daughter Saroj and  

had also tried to destroy the dead body by burning the same  

near village Sahaspuri. It was further alleged that Vijay Pal Singh  

mislead him by sending the missing information.    

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5. In view of the above complaint, another FIR was registered  

on 26.05.1991 at Police Station, Dillari and the investigation was  

taken over by Mahindra Singh Tyagi, Deputy Superintendent of  

Police-PW-9. As per his report under Section 173(2) of The Code  

of  Criminal  Procedure,  1973  (hereinafter  referred  to  as  “the  

Cr.PC.), the appellants are guilty of offences punishable under  

Sections 304B, 498A and 201 of IPC and Section 3 /  4 of the  

Dowry Prohibition Act, 1961.  

6. Charges of  offences punishable under Section 304B read  

with Section 34 of IPC, Section 302 read with Section 34 of IPC,  

Section 498A of IPC and Section 201 of IPC were framed against  

the appellants. The charges were read over and explained to the  

appellants, who pleaded not guilty and claimed to be tried.     

7. Prosecution,  in  order  to  prove  its  case,  examined  PW-1-

Ramesh Singh, complainant and father of deceased Saroj, PW-2-

Samar Pal Singh, Village Pradhan, who lodged FIR report-Exhibit-

Ka.4, PW-3-Sukhe, who first saw the dead body lying on the road  

and thereafter  informed the  Village Pradhan about  the  same,  

PW-4-Vikram  Singh,  witness  of  the  recovery  memo,  PW-5-Dr.  

Mushahid Hussain and                 PW-6-Ishwari Prasad Sharma,  

local residents of the village,                     PW-7-Braham Pal  

Singh- husband of the elder sister of the deceased, PW-8-Ashok  

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Kumar  Rawat-who  initially  conducted  the  investigation  of  the  

case,  PW-9-  Mahindra  Singh  Tyagi  -Deputy  Superintendent  of  

Police,  Investigating Officer  of the case,  PW-10-Dr.  S.K.  Arora-

who  conducted  the  postmortem,  PW-11-Hemendra  Kumar-

photographer  and  PW-12-Samar  Pal  Singh-witness  of  inquest  

report.  Thereafter,  statements  of  the  appellants/accused were  

recorded under Section 313 of Cr.PC. The oral and documentary  

evidence were put to each of them in question form, who denied  

the  allegations  made  against  them.  However,  no  oral  or  

documentary evidence was produced by them in their defence.  

8. The Additional Sessions Judge acquitted all the accused of  

all the charges mainly on two counts – (i) the dead body was not  

in  an  identifiable  condition  and (ii)  there  was  no  evidence of  

cruelty or harassment for dowry.

9. The State filed an appeal under Section 378 of Cr.PC before  

the High Court which was disposed of by the impugned judgment  

dated  10.06.2010.  The  High  Court,  after  elaborately  and  

minutely  discussing  the  evidence,  came  to  the  following  

conclusion at paragraph-33, which reads as follows:

“33. From the above said facts and circumstances, the  prosecution has established its case beyond reasonable  doubt against the respondents under Sections 304-B r/w  34 of I.P.C. and 498-A of IPC. Besides above, it is also  

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necessary to state here that P.W.-10 Dr. S.K. Arora who  conducted  the  post-mortem  of  the  dead  body  of  the  deceased found two ante-mortem injuries on the body of  the deceased, one on head and other on neck. He also  found burn injuries on the body of the deceased which  was caused after the death. Ultimately, he opined that  the  deceased  had  died  due  to  asphyxia  caused  by  strangulation. Thus, from the above facts, it transpires  that the respondents/accused first committed murder of  Saroj at their house at Village Kasampur by throttling her  neck and thereafter  in  order  to  destroy the evidence,  they burnt the dead body and planted it on road in the  forest of village Sahaspuri at a distance of 35 Kms from  Village  Kasampur  and  with  intention  to  mislead  the  complainant  Ramesh Singh,  they  sent  a  false  missing  information  of  the  deceased  through  respondent/accused  Rakesh.  Thus,  in  this  way,  the  respondents/accused  have  also  committed  offence  punishable under Section 201 IPC.”     

10. On the basis of the above conclusion, the following finding  

was entered:

“34. Therefore,  in  view of  the above-said discussion,  I  am of the considered view that the trial court was not  correct and justified in acquitting the respondents for the  offence punishable u/Ss 304-B r/w Section 34 IPC, 498-A  and 201 of IPC. The prosecution has successfully proved  its  case  against  the  respondents/accused  beyond  reasonable doubt under the aforesaid sections and they  are accordingly convicted.”

 11. On the basis of above finding, the following sentence was  

passed:

“35. Accordingly,  the appeal  preferred by the State is  allowed.  The  judgment  and  order  dated  22.7.1995  passed  by  Third  Additional  Sessions  Judge,  Nainital,  Camp Haldwani in Sessions Trial No. 281 of 1991, State  Vs.  Vijay  Pal  and  others,  is  hereby  set  aside.  The  respondents-accused  Vijay  Pal  Singh,  Narendra  Singh,  

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Rakesh and Gyan Chandra are hereby convicted under  Section 304-B IPC r/w Section 34 IPC and each of them  are  sentenced  to  seven  years’  R.I.  Each  of  them  is  further convicted u/s 498-A and are sentenced to further  two years’ R.I. with fine of Rs.2,000/- each and in default,  the defaulter shall undergo further six months’ R.I. They  are further convicted u/s 201 IPC and each of them is  sentenced to  one year’s  R.I.  All  the sentences except  that of fine shall run concurrently. Let the respondents- accused be taken into custody forthwith in order to serve  out the sentence as awarded against each of them. The  period already undergone by the respondents-accused  during  the  period  of  investigation  and  trial  shall  be  adjusted.”

12. Learned Counsel appearing for the appellants, Mr. P.K. Dey  

submitted that this Court may not disturb the acquittal granted  

to the appellants by the trial court merely because a different  

view is possible. It was contended that the prosecution having  

miserably failed to establish the ingredients of the offence under  

Section 304B of IPC, the impugned judgment is liable to be set  

aside. Mr. Dey, learned Counsel further contended that the trial  

court having acquitted the appellants, the High Court should not  

have interfered with the findings entered by the trial court which  

alone had the opportunity to first appreciate the evidence while  

recording it.  It was further contended that in any case, being an  

incident  of  1991,  this  Court  may  not  sustain  the  sentence  

awarded to the appellants. At any rate, Mr. Dey submitted that  

there is absolutely no evidence so as to connect the third and  

the fourth appellants who are the younger brother of the second  8

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appellant,  husband  of  the  deceased  and  the  brother-in-law,  

husband of the sister of Narendra Singh. And the last contention  

of Mr. Dey is that the matter should be remanded to the High  

Court since the court has not followed the mandatory procedure  

under  Section  235  of  Cr.PC,  in  having  been  denied  an  

opportunity to the appellants to make submissions on sentence.  

13. Learned  Counsel  appearing  for  the  respondent–State,  

Mr.  Tanmaya Agarwal,  however,  contends that  the findings of  

the  trial  court  being  absolutely  perverse,  High  Court  is  fully  

justified  in  reversing  the  finding  and  reaching  a  correct  

conclusion. According to the learned Counsel for the State, all  

the  ingredients  of  Section  304B  have  been  made  out  in  the  

present case and the punishments awarded to all the appellants  

are liable to the sustained.  

14. The postmortem report shows the following injuries on the  

body:

“i) Lacerated wound 10 cm x 4 cm x skull deep on the  occipital  region of  head underneath occipital,  left  parietal, temporal bone fractured.

ii) Contusion semi-circular 20 cm x 3 cm on the front  of  neck  underneath  blood  vessel  lacerated  and  clotted  blood  present  and  cornua  of  hyoid  bone  both side fractured.

One post-mortem injury was also found on the dead  body of the deceased, which reads as under:-

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i) P.M burn whole of body including both extremities,  abdomen, chest, face and back.”  

15. The cause of death, according to the postmortem report is  

asphyxia caused by strangulation.  

16. It  is rather strange that the High Court having entered a  

finding as extracted by us at paragraph-8 that it  is  a case of  

murder committed by the appellants herein, declined to award  

appropriate punishment under Section 302 of IPC. It  is a case  

where the appellants had faced trial under Section 302 of IPC  

and,  therefore,  the  High  Court  could  have,  awarded  an  

appropriate  punishment.  The  probable  reasons  why  the  High  

Court declined to do so, we shall discuss later.

17. Since, the victim in the case is a married woman and the  

death  being  within  seven  years  of  marriage,  apparently,  the  

court  has  gone only  on one tangent,  to  treat  the same as  a  

dowry death. No doubt, the death is in unnatural circumstances  

but if there are definite indications of the death being homicide,  

the first approach of the prosecution and the court should be to  

find out as to who caused that murder. Section 304B of IPC is not  

a substitute for Section 302 of IPC. The genesis of Section 304B  

of IPC introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates  

back to  the 91st Report  of  the Law Commission of  India.  It  is  

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significant  to  note that  the subject  was taken up by the Law  

Commission suo motu. Paragraph-1.3 of the Report reads thus:

“1.3. If, in a particular incident of dowry death, the facts  are such as to satisfy the legal ingredients of an offence  already  known to  the law,  and if  those facts  can  be  proved without much difficulty, the existing criminal law  can be resorted to for bringing the offender to book. In  practice, however, two main impediments arise-

(i) either the facts do not fully fit into the pigeon-hole  of any known offence; or

(ii) the  peculiarities  of  the  situation  are  such  that  proof  of  directly  incriminating  facts  is  thereby  rendered difficult.

The  first  impediment  mentioned  above  is  aptly  illustrated by the situation where a woman takes her  life with her own hands, though she is driven to it by ill- treatment.  This situation may not fit into any existing  pigeon-hole  in  the  list  of  offences  recognized by  the  general criminal law of the country, except where there  is definite proof of instigation, encouragement or other  conduct  that  amounts  to  “abetment”  of  suicide.  Though,  according  to  newspaper  reports,  there  have  been judgments of lower courts which seem to construe  “abetment” in this context widely,  the position is not  beyond doubt.  

The  second  situation  mentioned  above  finds  illustration in those incidents in which, even though the  circumstances raise a strong suspicion that the death  was not accidental, yet, proof beyond reasonable doubt  may not be forthcoming that the case was really one of  homicide. Thus, there is need to address oneself to the  substantive  criminal  law  as  well  as  to  the  law  of  evidence.”  

18. In the Statement of Objects and Reasons for the Act 43 of  

1986, in the Bill, it is stated as follows:

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“The  Dowry  Prohibition  Act,  1961  was  recently  amended by the Dowry Prohibition (Amendment) Act,  1984 to give effect to certain recommendations of the  Joint Committee of the Houses of Parliament to examine  the question of  the working of  the Dowry Prohibition  Act, 1961 and to make the provisions of the Act more  stringent and effective. Although the Dowry Prohibition  (Amendment)  Act,  1984 was an improvement  on the  existing legislation,  opinions have been expressed by  representatives from women’s voluntary organizations  and others to the effect that the amendments made are  still  inadequate  and  the  Act  needs  to  be  further  amended.

2. It is, therefore, proposed to further amend the  Dowry Prohibition Act, 1961 to make provisions therein  further stringent and effective. …”

19. However, it is generally seen that in cases where a married  

woman  dies  within  seven  years  of  marriage,  otherwise  than  

under normal circumstances, no inquiry is usually conducted to  

see whether  there is  evidence,  direct  or  circumstantial,  as  to  

whether the offence falls under Section 302 of IPC. Sometimes,  

Section 302 of IPC is put as an alternate charge. In cases where  

there  is  evidence,  direct  or  circumstantial,  to  show  that  the  

offence  falls  under  Section  302  of  IPC,  the  trial  court  should  

frame the charge under Section 302 of IPC even if the police has  

not  expressed any opinion in  that  regard in  the report  under  

Section 173(2) of the Cr.PC. Section 304B of IPC can be put as an  

alternate charge if the trial court so feels. In the course of trial, if  

the court finds that there is no evidence, direct or circumstantial,  

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and proof beyond reasonable doubt is not available to establish  

that  the  same  is  not  homicide,  in  such  a  situation,  if  the  

ingredients  under  Section  304B of  IPC  are  available,  the  trial  

court should proceed under the said provision. In Muthu Kutty  

and  another  v.  State  by  Inspector  of  Police,  T.N.1,  this  

Court addressed the issue and held as follows:

“20. A reading of Section 304-B IPC and Section 113- B,  Evidence  Act  together  makes  it  clear  that  law  authorises  a  presumption  that  the  husband  or  any  other relative of the husband has caused the death of a  woman  if  she  happens  to  die  in  circumstances  not  normal and that there was evidence to show that she  was treated with cruelty or harassed before her death  in connection with any demand for dowry. It, therefore,  follows that  the husband or the relative,  as the case  may be, need not be the actual or direct participant in  the commission of the offence of death. For those that  are direct participants in the commission of the offence  of  death there are already provisions incorporated in  Sections 300, 302 and 304. The provisions contained in  Section 304-B IPC and Section 113-B of the Evidence  Act  were  incorporated  on  the  anvil  of  the  Dowry  Prohibition (Amendment) Act, 1984, the main object of  which is to curb the evil of dowry in the society and to  make it severely punitive in nature and not to extricate  husbands or their relatives from the clutches of Section  302 IPC if  they directly cause death.  This conceptual  difference was not kept in view by the courts below. But  that cannot bring any relief if the conviction is altered  to Section 304 Part  II.  No prejudice is  caused to  the  accused-appellants as they were originally charged for  offence punishable  under  Section 302 IPC  along with  Section 304-B IPC.”

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(2005) 9 SCC 113

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20. In  a  recent  decision,  this  Court  in  Jasvinder  Saini  and  

others v. State (Government of NCT of Delhi)2,  observed  

thus:

“15. It  is  common  ground  that  a  charge  under  Section 304-B IPC is  not a substitute for  a  charge of  murder punishable under Section 302. As in the case of  murder in every case under Section 304-B also there is  a  death  involved.  The question  whether  it  is  murder  punishable  under  Section  302  IPC  or  a  dowry  death  punishable under Section 304-B IPC depends upon the  fact situation and the evidence in the case. If there is  evidence whether direct or circumstantial to prima facie  support a charge under Section 302 IPC the trial court  can  and  indeed  ought  to  frame  a  charge  of  murder  punishable under Section 302 IPC, which would then be  the main charge and not  an alternative charge as is  erroneously  assumed  in  some  quarters.  If  the  main  charge of murder is not proved against the accused at  the  trial,  the  court  can  look  into  the  evidence  to  determine  whether  the  alternative  charge  of  dowry  death punishable  under  Section 304-B is  established.  The  ingredients  constituting  the  two  offences  are  different, thereby demanding appreciation of evidence  from the perspective relevant to such ingredients. The  trial court in that view of the matter acted mechanically  for  it  framed an additional  charge under Section 302  IPC without adverting to the evidence adduced in the  case and simply on the basis of the direction issued in  Rajbir  case.  The  High  Court  no  doubt  made  a  half- hearted attempt  to  justify  the  framing of  the charge  independent  of  the  directions  in  Rajbir  case,  but  it  would have been more appropriate to remit the matter  back  to  the  trial  court  for  fresh  orders  rather  than  lending support to it in the manner done by the High  Court.”

21. Though in the instant case the accused were charged by  

the Sessions Court under Section 302 of IPC, it is seen that the  2 (2013) 7 SCC 256

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trial court has not made any serious attempt to make an inquiry  

in that regard. If  there is evidence available on homicide in a  

case of dowry death, it is the duty of the investigating officer to  

investigate  the  case  under  Section  302  of  IPC  and  the  

prosecution to proceed in that regard and the court to approach  

the  case  in  that  perspective.  Merely  because  the  victim is  a  

married woman suffering an unnatural death within seven years  

of  marriage and there  is  evidence that  she was subjected  to  

cruelty  or  harassment  on  account  of  demand  for  dowry,  the  

prosecution and the court cannot close its eyes on the culpable  

homicide  and  refrain  from  punishing  its  author,  if  there  is  

evidence in that regard, direct or circumstantial.  

22. In  the  instant  case,  the  prosecution  has  not  made  any  

attempt to explain the ante-mortem injuries which conclusively  

point to the cause of death as asphyxia caused by strangulation.  

Yet,  no  serious attempt,  it  is  disturbing to  note,  was done to  

connect the murder to its author(s).  

23. No  doubt,  nothing  prevents  this  Court  from  putting  the  

appellants on notice as to why the punishment should not be  

appropriately enhanced but why we reluctantly decline to do so,  

we shall explain in the later part of the judgment.

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24. In  two  of  the  early  decisions  of  this  Court,  after  the  

introduction  of  Section  304B  of  IPC,  the  ingredients  of  the  

offence and the interplay of Section 304B of IPC with Sections  

498A, 302, 306 of IPC have also been discussed. In  State of  

Punjab v. Iqbal Singh and others3, the Court in paragraph-8  

stated that:

“8. … The legislative intent is clear to curb the menace  of dowry deaths, etc., with a firm hand. We must keep  in mind this legislative intent. It must be remembered  that  since  crimes  are  generally  committed  in  the  privacy  of  residential  homes  and  in  secrecy,  independent  and  direct  evidence  is  not  easy  to  get.  That is why the legislature has by introducing Sections  113-A and 113-B in the Evidence Act tried to strengthen  the prosecution hands by permitting a presumption to  be raised if  certain foundational facts are established  and the unfortunate event has taken place within seven  years  of  marriage.  This  period  of  seven  years  is  considered  to  be  the  turbulent  one  after  which  the  legislature assumes that the couple would have settled  down in life. If a married women is subjected to cruelty  or harassment by her husband or his family members  Section 498-A, IPC would be attracted. If such cruelty or  harassment was inflicted by the husband or his relative  for,  or  in  connection  with,  any  demand  for  dowry  immediately preceding death by burns and bodily injury  or  in  abnormal  circumstances  within  seven  years  of  marriage, such husband or relative is deemed to have  caused her  death and is  liable to  be punished under  Section  304-B,  IPC.  When  the  question  at  issue  is  whether a person is guilty of dowry death of a woman  and the evidence discloses that immediately before her  death  she  was  subjected  by  such  person  to  cruelty  and/or  harassment  for,  or  in  connection  with,  any  

3 (1991) 3 SCC 1

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demand  for  dowry,  Section  113-B,  Evidence  Act  provides that the court shall presume that such person  had caused the dowry death. Of course if there is proof  of  the  person  having  intentionally  caused  her  death  that  would attract  Section 302,  IPC.  Then we have a  situation where the husband or his relative by his wilful  conduct creates a situation which he knows will drive  the woman to commit suicide and she actually does so,  the case would squarely fall within the ambit of Section  306,  IPC.  In  such  a  case  the  conduct  of  the  person  would tantamount to inciting or  provoking or virtually  pushing  the  woman into  a  desperate  situation  of  no  return which would compel  her to put an end to her  miseries by committing suicide. …”

25. In Smt. Shanti and another v. State of Haryana4, which  

is  seen referred to in  many of  the subsequent  decisions,  this  

Court stated the law on the point as follows:

“4. … A careful analysis of Section 304-B shows that  this section has the following essentials:

(1) The death of a woman should be caused by  burns or bodily injury or otherwise than under  normal circumstances;

(2) Such  death  should  have  occurred  within  seven years of her marriage;

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

(4) Such cruelty or harassment should be for or  in connection with demand for dowry.

Section  113-B  of  the  Evidence  Act  lays  down that  if  soon before the death such woman has been subjected  to cruelty or harassment for or in connection with any  demand for dowry, then the court shall  presume that  such  person  has  committed  the  dowry  death.  The  meaning of “cruelty” for the purposes of these sections  has  to  be  gathered  from  the  language  as  found  in  Section 498-A and as per that section “cruelty” means  

4 (1991) 1 SCC 371

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“any wilful conduct which is of such a nature as is likely  to drive the woman to commit suicide or to cause grave  injury or danger to life etc. or harassment to coerce her  or any other person related to her to meet any unlawful  demand for any property or valuable security or is on  account of failure by her or any person related to her to  meet such demand”. As per the definition of “dowry”  any property or valuable security given or agreed to be  given either at or before or any time after the marriage,  comes within the meaning of “dowry”. …”

26. Unto the latest decision available on this point, in Baljinder  

Kaur v.  State of Punjab5, except for the required thrust with  

respect to the factual situation available in each case, the law  

has been consistent as to the requirements for constituting the  

offence under Section 304B of IPC.  

27. Back to the facts of the instant case, the main evidence in  

this case is of PW-1-Ramesh Singh, father of the victim, PWs- 5  

and 6 - who are the residents of the village and PW-7- husband  

of  the  elder  sister  of  the  deceased,  apart  from  the  medical  

evidence.

28. According to PW-1, he had brought his daughter from her  

in-laws’ house. She had told him about the demand from her in–

laws’ for the dowry. The deceased had gone to the in-laws’ twice  

only and the third time when the son-in-law had come to take his  

daughter,  he  was  accompanied  by  his  father-Vijay  Pal  Singh,  

younger brother-Rakesh Singh and brother-in-law–Gyan Chandra  5 (2014) 13 SCALE 96

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and they had threatened him with dire  consequences in  case  

their demand for television, fridge and cooler was not met. PWs-

5 and 6 are witnesses of the same.                                     PW-5-

Dr. Mushahid Hussain is a registered medical practitioner serving  

in the village for more than two decades. According to him, the  

relatives of the husband of the deceased Saroj and her father-in-

law and other  relations used to demand more dowry.  He had  

once used his  good office to sort  out  the dispute.  It  has also  

come out from his evidence that once a Panchayat was called on  

the issue and even in the Panchayat, in the presence of PW-5  

himself, the husband and his father and others made demand for  

dowry. PW-6 is the Gram Pradhan of the Gram Sabha, Alampur.  

He  has  also  given  evidence  to  the  effect  that  there  were  

demands for more dowry from the in-laws’ of deceased Saroj. He  

has also given evidence regarding the Panchayat held to sort out  

the matter and, in his presence also, the in-laws’ of deceased  

Saroj were requesting for more dowry. The other evidence is of  

PW-7- husband of the elder sister of the deceased. Only PW-1  

and  PW-7,  the  father  and  husband  of  the  elder  sister  of  the  

deceased, respectively, have given evidence to the effect that all  

the appellants had made the demand for more dowry and had  

posed threat of consequences, if the demands were not met.

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29. The death is within four months of the marriage. There is  

ample evidence, which we have discussed above, to show that  

there had been demands for dowry. Then, the only ingredient to  

be  established  is  as  to  whether  soon  prior  to  the  death  of  

deceased Saroj,  whether she had been subjected to cruelty or  

harassment  on  account  of  or  in  connection  with  demand  for  

dowry.

30. Mr.  Dey  contends  that  even  assuming  that  there  is  

evidence on demand for dowry, there is absolutely no evidence  

to show that any demand was made to the deceased Saroj. This  

contention is difficult to digest. Demand for dowry so as to come  

under the purview of Section 304B or Section 498A need not be  

to the married woman. The demand can as well be to the father,  

mother,  brother,  etc.,  of  the married woman.  Any demand to  

them is as good as a demand to the married woman since she is  

the  one  to  suffer  in  case  the  demands  are  not  met,  as  has  

happened in the instant case.

31. Yet another serious contention raised by Mr. Dey is that in  

any case, there is no evidence of cruelty or harassment meted  

out to the deceased on account or in relation to the demand for  

dowry. Cruelty or harassment need not always be demonstrated  

in the form of physical violence. The fact that a married woman  

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had to go out of her in-laws’ house and that the in-laws’ had  

made demand for dowry as a                       pre-condition for   

taking her back and that even a Panchayat was held at the local  

level to sort out the issue, are sufficient indicators of cruelty or  

harassment, mental, if not, physical. Thus, all the ingredients of  

Section 304B of IPC have been established in the instant case.  

32. Incidentally, we shall also refer to one contention regarding  

the identification of the body. According to the learned Counsel,  

which  has  been  the  version  of  the  trial  court  as  well,  the  

deceased was  not  identified  as  Saroj,  the  wife  of  the  second  

appellant-Narendra  Singh.  It  appears,  there  has  been  slight  

confusion in the mind of the trial court with regard to recognition  

and  identification.  PW-2  and  PW-3  first  saw  the  body  and  

reported that the dead body was of an unknown person and, the  

people who went to see the body, could not recognize as to who  

the person was. It has to be seen that PWs-2 and 3 were not  

from the village of the deceased. Therefore, one cannot normally  

expect them to recognize the deceased person. That does not  

mean that the face of the dead body was in such a shape that it  

had lost its shape. A bare look at Exhibits-4 and 5-photographs  

would show that  to the people who knew the deceased,  they  

could easily recognize who the person was. Had the face been  

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completely burnt or otherwise lost its whole shape, it would not  

have been possible for anybody to identify it, let alone recognize  

the person. In the instant case, PWs-2 and 3 identified the face  

as that of a woman and PW-1-father has recognized her to be his  

daughter. At the time of cremation, it has come in evidence that  

others also recognized the deceased as Saroj, daughter of PW-1  

and wife of second appeallant-Narendra Singh.

33. Learned  Counsel  appearing  for  the  appellants  strongly  

canvassed for the position that in an appeal against acquittal,  

there are some inbuilt restrictions before the appellate court and  

the mere possibility of a different view is not enough to interfere  

with  the  acquittal.  We  have  no  quarrel  with  the  well-settled  

proposition.  The author  of  this  judgment  is  the  author  of  the  

judgment  in  Basappa v.  State  of  Karnataka6 wherein  a  

detailed survey has been conducted with regard to the scope of  

interference  of  the  appellate  court  in  an  appeal  against  the  

judgment of acquittal. After referring to following decisions in K.  

Prakashan v.  P.K. Surenderan7,  T. Subramanian v.  State  

of  Tamil  Nadu8,  Bhim Singh v.  State of  Haryana9,  Kallu  

alias  Masih  and  others v.  State  of  Madhya  Pradesh10,  6 (2014) 5 SCC 154 7 (2008) 1 SCC 258 8 (2006) 1 SCC 401 9 (2002) 10 SCC 461 10 (2006) 10 SCC 313

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Ramesh  Babulal  Doshi v.  State  of  Gujarat11,  Ganpat v.  

State of Haryana and others12,  State of Punjab v. Karnail  

Singh13,  Chandrappa and others v.  State of Karnataka14,  

which have dealt with the issue, this Court held that unless the  

judgment of acquittal is based on no material or is perverse or  

the view taken by the court is wholly unreasonable or is not a  

plausible view or there is non-consideration of any evidence or  

there is palpable misreading of evidence, the appellate court will  

not be justified in interfering with the order of acquittal. While  

endorsing  and  reaffirming  those  principles,  we  are  of  the  

considered view that on the facts of the present case, there has  

been a palpable misreading of evidence by the trial court. As we  

have already discussed herein above, the conclusions drawn by  

the trial court is apparently against the weight of evidence and  

thus  perverse,  and  it  is  so  perverse  that  no  reasonable  man  

could reach conclusions.  

34. Now, the question as to why the High Court, having entered  

a  conclusion  that  it  is  a  case  of  murder  at  the  hands  of  the  

appellants, yet chose to convict them only under Section 304B of  

IPC. As we have already indicated, it could have been a case for  

11 (1996) 9 SCC 225 12 (2010) 12 SCC 59 13 (2003) 11 SCC 271 14 (2007) 4 SCC 415

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the High Court or for that matter this Court for issuing notice for  

enhancement  of  punishment  to  those  against  whom  there  is  

evidence to connect them with the murder. The incident being of  

1991,  the  prosecution  having  not  chosen  to  link  all  the  

circumstances  in  a  chain  with  no  missing  links  to  reach  the  

irresistible and conclusive finding on involvement of the accused,  

the High Court would have thought it more prudent to convict  

the accused only under Section 304B of IPC. No doubt, in such a  

case, the High Court should not have entered a categoric finding  

on  murder  since  once  the  court  enters  such  a  finding,  the  

punishment can only be under Section 302 of IPC. Having regard  

to the circumstances which we have referred to above, we are of  

the view that though this case could have been dealt with under  

Section 302 of IPC, at this distance of time and in view of the  

lack of evidence on the chain of circumstances,  it  will  not be  

proper for  this Court to proceed under Section 302 of IPC for  

enhancement of punishment. There are no such problems as far  

as the presumption under Section 113B of the Indian Evidence  

Act, 1872 is concerned. Once the ingredients of Section 304B of  

IPC are established, the presumption is that the death has been  

caused by the husband or his relatives, who caused the cruelty  

or  harassment.  That  presumption  can  safely  be  drawn in  the  

instant  case,  as  we have already discussed above,  as  all  the  24

Page 25

ingredients under Section 304B of IPC have been proved beyond  

doubt in the present case particularly since there is  no direct  

evidence on the part of the appellants to rebut the same.

35. Yet with all that, we have to address a further question as  

to the involvement of the younger brother of husband-Rakesh  

Singh  and  brother-in-law  of  husband-Gyan  Chandra.  Though,  

under  Section  304B  of  IPC,  a  presumption  has  to  be  drawn  

against  those  relatives  who  have  harassed  the  deceased  in  

connection with the demand for dowry, there must be evidence,  

which is not rebutted to connect the husband and each relative  

in  that  regard.  Rebuttal  can  be  made  even  without  direct  

evidence  (See  Kundan  Lal  Rallaram v. The  Custodian,  

Evacuee Property Bombay15 followed in M. Narsinga Rao v.  

State of Andhra Pradesh16).

36. In  Alamgir Sani v.  State of Assam17, one of the issues  

that  came up for  consideration  before  this  Court  on  acquittal  

under  Section  302  of  IPC  is  whether  on  account  of  acquittal  

under  Section  302  of  IPC,  the  accused  could  claim  acquittal  

under Section 304B of IPC. It was clarified by this Court that the  

acquittal  under  Section  302 of  IPC  will  not  lead  to  automatic  

15 AIR 1961 SC 1316 16 (2001) 1 SCC 691 17 (2002) 10 SCC 277

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acquittal  under  Section  304B  of  IPC.  Even  if  an  accused  is  

acquitted under Section 302 of IPC, if there is evidence available  

so  as  to  satisfy  the  ingredients  of  Section  304B  of  IPC,  the  

accused can still be convicted under Section 304B of IPC, in case  

there is no rebuttal of presumption on the death as caused by  

the accused. To quote:

“15. We also  see no substance in  the submission  that merely because the appellant had been acquitted  under Section 302 IPC the presumption under Section  113-B  of  the  Evidence  Act  stands  automatically  rebutted.  The death having taken place within seven  years  of  the  marriage  and  there  being  sufficient  evidence of demand of dowry, the presumption under  Section 113-B of the Evidence Act gets invoked. There  is no evidence in rebuttal.”

37. Though PW-1-father of the deceased and PW-7- husband of  

the elder sister of the deceased have stated that Rakesh Singh  

and Gyan Chandra were also with Vijay Pal Singh and Narendra  

Singh-husband of the deceased when they visited his house and  

demanded dowry and posed a threat,  but  it  has come in the  

evidence of PW-5 and PW-6 that in the family of in-laws’ of the  

deceased Saroj,  they did not recognize any person other than  

the father-in-law-Vijay  Pal  Singh and husband-Narendra Singh.  

Not only that it has come out in evidence of PW-1 himself that  

younger brother-Rakesh Singh had been studying elsewhere and  

that  the  brother-in-law  Gyan  Chandra  was  from  a  different  

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village.   Since  the  independent  witnesses  PWs-5  and  6  have  

recognized only the father-in-law and husband of the deceased,  

we are of the view that it will not be safe to conclude the offence  

under Sections 304B of IPC, 498A of IPC or 201 of IPC as proved  

against  Rakesh  Singh  and  Gyan  Chandra.  Therefore,  the  

conviction  and  sentence  as  against  third  accused/appellant-

Rakesh  Singh and fourth  accused/appellant-Gyan Chandra  are  

set aside.  

38. Now, the last question as to whether the case should be  

remitted back to the High Court for the purpose of Section 235 of  

Cr.PC,  we are  of  the  view that  in  the  present  case,  it  is  not  

necessary.  The  conviction  is  under  Section  304B  IPC.  The  

mandatory  minimum  punishment  is  seven  years.  Of  course,  

there is no such minimum punishment under Section 498A of IPC  

or Section 201 of IPC. Since the sentence in respect of offence  

under Section 498A of IPC for two years rigorous imprisonment  

and one year under Section 201 of IPC are to run concurrently,  

no  prejudice  whatsoever  is  caused  to  the  two  appellants.  

Therefore, this is not a fit case for following the procedure under  

Section 235 of Cr.PC by this Court or for remand in that regard to  

the High Court.

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39. The conviction and sentence against the third and fourth  

accused/appellants,  Rakesh  Singh  and  Gyan  Chandra,  

respectively,  are  set  aside.  The  conviction  and  sentence  as  

against first and second appellants, Vijay Pal Singh and Narendra  

Singh, respectively, under Section 304B of IPC read with Section  

34 of IPC, Section 498A of IPC and Section 201of IPC are upheld.  

Their  bail  bonds  are  cancelled.  They  shall  immediately  

surrender/they shall be taken to custody, to serve the remaining  

sentence. The appeal is thus partly allowed as above.

..………….………………………J.                                   (KURIAN JOSEPH)

………......………………………J.        (ABHAY MANOHAR SAPRE)

New Delhi; December 16, 2014.  

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