Page 1

REPORTABLE

          IN THE SUPREME COURT OF INDIA               CRIMINAL APPELLATE JURISDICTION

        CRIMINAL APPEAL NO.1097 OF 2016           [ARISING OUT OF S.L.P. (CRL.) NO.9718 OF 2014)

BAIJNATH & OTHERS         .…APPELLANTS

VERSUS

STATE OF MADHYA PRADESH             ....RESPONDENT

J U D G M E N T  

AMITAVA ROY, J.

The appellants, the in-laws of the deceased Saroj Bai,

being  aggrieved by the  conversion of  their  acquittal  into

conviction  by  the  High  Court  under  Sections  498A  and

304B  of  the  Indian  Penal  Code  (for  short  hereinafter

referred to as the “Code”) seek defeasance of this verdict in

the present appeal.

(2) Heard Mr. Siddhartha Dave, learned counsel for the

appellants  and Mr.  Naveen Sharma,  learned counsel  for

the respondent.

1

Page 2

(3) The  genesis  of  the  prosecution  case  lies  in  the

information lodged by appellant Baijnath, the elder brother

of  the  appellant  No.2,  Shivraj,  the  father-in-law  of  the

deceased. The information disclosed that on 09.06.1996 at

about  8  p.m.  the  family  had  dinner  together  and  after

watching television, retired to the respective rooms for the

night.  The  deceased  was  married  to  Rakesh,  son  of

appellant  No.2.  According  to  the  informant,  in  the  next

morning she was found dead, hanging from the fan by a

ligature.

(4) On this information Merg No.20/1996 was registered

with the Chanderi Police Station and on the completion of

the  investigation  charge-sheet  was  laid  against  the

appellants together with Rakesh, husband of the deceased

and Prem Bai, wife of the appellant No.1 under Sections

302, 304B, 498A, 201 read with Section 34 of the Code.

According  to  the  prosecution,  the  investigation  revealed

that the husband of the deceased along with the appellants

had  been  demanding  dowry  and  in  pursuit  thereof  had

2

Page 3

subjected the deceased to harassment and torture in the

proximate past of the incident.

(5) At  the  trial,  the  learned  Additional  Sessions  Judge

concerned  framed  charges  against  the  accused  persons

under Sections 304B and 498A of the Code, which were

denied  by  the  accused  persons.  Subsequent  thereto

Rakesh  committed  suicide  on 09.06.1998 by  consuming

poison and therefore he was deleted from the array of the

persons indicted.

(6) The prosecution at the trial  examined 12 witnesses

including the Investigating Officer and the Doctor who had

performed the postmortem examination. The defence, after

the  recording  of  the  statements  of  the  appellants  under

Section 313 Cr.P.C., examined 4 witnesses.

(7) The Trial Court on an exhaustive assessment of the

evidence  adduced,  acquitted  the  accused  persons  of  the

charges  against  which  the  respondent/State  preferred

3

Page 4

appeal before the High Court. The impugned decision has

been rendered thereby upturning the acquittal.

(8) The learned Trial Court while recording the admitted

fact  of  marriage  between  the  deceased  and  Rakesh  and

also  that  the  incident  had  occurred  in  the  matrimonial

home of the wife within 7 years of the alliance, dismissed

the evidence with regard to demand of motorcycle in dowry

and the imputation of torture, cruelty and harassment as

projected  by  the  prosecution  and  thus  exonerated  the

accused persons of the charges levelled holding that in the

attendant materials on record, the statutory presumption

as envisaged in Section 113B of  the Evidence Act,  1892

(hereinafter  referred  to  as  the  “Act,  1892”)  was  not

available for invocation.

(9) The High Court however being of the opinion that the

deceased  had  died  an  unnatural  death  in  suspicious

circumstances in her matrimonial home within 7 years of

marriage  and that  the  same was preceded by  persistent

demands  for  a  motorcycle  as  dowry  in  marriage

4

Page 5

accompanied  by  cruelty,  returned  the  finding  of  guilt

against the appellants but exonerated Prem Bai, the wife of

appellant  No.1  i.e.  Baijnath.  It  accepted  the  evidence

adduced  by  the  prosecution  qua  the  charge  of  dowry

demand, harassment and cruelty in connection therewith

and  applied  the  deeming  prescription/statutory

presumption contained in Section 304B of the Code and

Section 113B of Act, 1892.

(10) The  learned  counsel  for  the  appellants  has  in  this

backdrop insistently urged that the evidence in support of

the  charge  of  demand  for  a  motorcycle  as  dowry  in

marriage by the husband and his family members being

patently  inadequate  and  unconvincing  to  furnish  the

ingredient relating thereto qua the charges levelled against

the  appellants,  their  conviction  is  utterly  unsustainable

and if allowed to stand would amount to travesty of justice.

According  to  Mr.  Dave,  the  imperative  essentials  of

Sections  498A  and  304B  of  the  Code  not  having  been

proved, the High Court had fallen in error in applying the

5

Page 6

deeming edict/statutory presumption mandated by Section

304B  of  the  Code  and  Section  113B  of  Act,  1892  in

converting  their  acquittal  to  conviction.  The  learned

counsel contended that as the medical evidence as well did

not disclose with certainty the cause of death–homicidal or

suicidal, there was as such no incriminating evidence on

record to  prove  the  culpability  of  the  appellants.  As not

only the testimony of the prosecution witnesses with regard

to demand for a motorcycle as dowry in marriage is visibly

inconsistent, mutilating each other, the defence evidence to

the contrary formidably establish the falsity of this charge,

he  urged.  According  to  Mr.  Dave  the  analysis  of  the

evidence on record by the High Court has been erroneous

leading  to  findings  not  borne  out  by  the  materials  on

record and thus are indefensible in any view of the matter

warranting the acquittal of the appellants.

(11) In  emphatic  refutation,  the  learned  counsel  for  the

respondent has argued that as admittedly the unfortunate

incident had occurred within seven years of marriage in the

6

Page 7

matrimonial  home  and  that  too  in  suspicious

circumstances, all the prerequisites of the offences under

Sections 498A and 304B were proved beyond reasonable

doubt  and  thus  the  impugned  decision  does  not  merit

interference. The learned Trial Court did err in evaluating

the evidence in the correct perspectives and the High Court

having  undertaken  a  painstaking  review  thereof,  the

findings arrived at by it, following a proper appreciation of

the materials on record are not only valid in law but also in

the exigent espousal of the cause of justice.

(12) After outlining the rival submissions as above, it  is

considered expedient next to take a synopsised stock of the

evidence adduced by the parties, so as to facilitate a better

comprehension  of  the  facets  of  the  lis  and  the  desired

adjudication.  

(13) PW-1  Kundan  Singh,  the  uncle  of  the  deceased,

deposed that the families of the accused persons were joint

and that at the marriage, cash and other valuables were

gifted to the in-laws of the deceased and that the ceremony

7

Page 8

was solemnized without any hassle. The witness however

referred  to  a  grievance  being  expressed  later  on  by  the

deceased  alleging  that  she  was  being  harassed  by  her

husband Rakesh and the appellants as well as Prem Bai,

the  wife  of  appellant  No.1  relating  to  the  demand  of

motorcycle in dowry. The witness also referred to another

occasion where a similar complaint had been made by the

deceased to him. He claimed to have seen the dead body of

the deceased hanging from the fan.

(14) In cross-examination,  this  witness deposed about a

demand for motorcycle at the time of marriage but however

conceded  that  no  complaint  was  made  to  the  police  for

such  demand  at  any  point  of  time.  He  denied  the

suggestion  that  the  deceased  had  committed  suicide  as

because her fidelity to her husband was being questioned

in the face of her love affairs with the son of one Thoran

Singh, the Sarpanch of the village.

(15) PW-2  Jahar  Singh,  the  father  of  the  deceased

mentioned  about  the  demand  for  a  motorcycle  by  the

8

Page 9

husband and the in-laws of the deceased at the time of the

marriage and also the harassment in connection therewith

suffered by the deceased as reported by her to him. The

witness also referred to the same demand by the husband

in the year 1996 on the occasion of Chowk Vidai, a ritual,

whereupon he was assured that as and when it would be

financially  feasible,  the  same  would  be  arranged.  This

witness  as  well  stated  that  though  the  demand  for  the

motorcycle was being made since the time of marriage in

the year 1994, no complaint was made by him with regard

thereto to anybody. When confronted with his statement in

course of the investigation, he admitted of the omission in

the disclosure that the deceased had confided in him about

such demand during her limited stay at the matrimonial

home  and  the  harassment  and  mal-treatment  in

connection therewith.  He denied the suggestion that  the

deceased had eloped with the son of Thoran Singh and that

as a result there was a confrontation between him with the

family of Thoran Singh. He also denied the suggestion that

9

Page 10

in view of  this  episode there was unpleasantness in the

family of the in-laws of the deceased for which they had

some  reservation  in  accommodating  her  in  the  nuptial

house.

(16) PW-3  Jhulla,  who  at  the  relevant  time  was  the

Sarpanch  of  the  village  deposed  that  the  deceased  had

committed suicide and that when he visited the spot, he

did not see any injury on her body.

(17) In cross-examination, he clarified that the appellant

No.1 was living separately from the in-laws of the deceased

from  before  the  marriage.  He  also  mentioned  that  the

accused persons were held in high esteem in the village

and used to behave decently with their daughter-in-law. He

also stated that he had not heard about any demand of

dowry made by the accused persons.

(18) PW-4 Narayan Singh, a neighbour did mention about

the  demand  of  a  motorcycle  in  dowry  at  the  time  of

marriage and that the deceased had disclosed to her father

10

Page 11

about harassment meted out to her by the appellants and

Prem Bai  in  connection  therewith.  In  cross-examination

the witness testified that there was no demand for dowry

before  the  marriage  and  that  there  was  no  report  with

regard thereto to the police.

(19) PW-5 Prembai,  the mother of  the deceased testified

that  no  dowry  was  fixed  before  the  marriage  and  no

demand was made by the accused persons but they still

offered Rs.1 lac to them. She stated that her son-in-law

while  dining  made  a  demand  for  motorcycle  which

according  to  the  witness  was  assured  as  and  when the

finances  would  be  available.  This  witness  deposed  that

even after two years of marriage, the appellants repeated

the said demand to which a similar assurance was again

given.

(20) In  cross-examination,  this  witness  admitted  that

before the marriage no demand for  motorcycle had been

made  as  dowry,  though  she  mentioned  about  the

complaints made by the deceased to her about harassment

11

Page 12

by  the  accused  persons  for  not  providing  the  bike.  She

admitted that no complaint in this regard was ever made

and  the  relations  as  well  were  not  informed  about  the

treatment suffered by the deceased.

(21) PW-7  Jahar  Singh  did  state  about  a  demand  of

motorcycle made by Rakesh, the husband of the deceased.

(22) PW-8  Gyasibai,  a  neighbour  deposed  that  the

deceased had committed suicide and that when she visited

the place of occurrence, she did not notice any injury mark

on her body. In cross-examination the witness stated that

the deceased did never speak to her about the demand and

testified that the in-laws did treat her properly and that

there was no confrontation at any point of time.

(23) PW-11  Manish  Kapuria,  the  Investigating  Officer

narrated  the  steps  taken  by  him  in  course  of  the

inquisition  and  mentioned  amongst  others  about  the

preparation of the panchnama of the dead body. Though

this  witness  stated  that  the  whole  exercise  was

12

Page 13

videographed,  he  admitted  that  the  same  had  not  been

produced as evidence. He claimed to have seen two ligature

marks on the neck of the deceased.

(24) PW-12  Dr.  R.P.  Sharma,  who  had  performed  the

postmortem  examination,  stated  to  have  identified

contusion on the right cheek, middle of left side of neck

and  middle  of  left   parietal  region  in  the  dead  body.

According  to  him,  the  ligature  mark  was  found  to  be

ante-mortem  in  nature.  He  also  mentioned  that  the  3

contusions were ante-mortem but opined that the ligature

mark  was  postmortem  in  occurrence.  On  an  overall

assessment however, the witness stated that as at the time

of autopsy the body had started putrefying, no opinion as

to the cause of death could be given. In cross-examination

the witness admitted that the dead body did not wear any

other injury other than those mentioned.

(25) The  witnesses  of  the  defence,  namely,  DW-1  Gaya

Prasad, DW-2 Munna, DW-3 Har Kunwar Bai and DW-4

Sirnam Singh in unison testified that there was no demand

13

Page 14

for dowry or motorcycle ever made by the husband of the

deceased  or  her  in-laws.  They  further  stated  that  the

appellant No.1 Baijnath had been residing separately from

the  in-laws  of  the  deceased  from  before  the  marriage.

According  to  them,  the  family  of  the  in-laws  of  the

deceased was sufficiently well-off and did enjoy appreciable

reputation  in  the  society.  These  witnesses  were  all

neighbours of the appellants.

(26) DW-3 Har  Kunwar  Bai,  in  addition  stated that  the

deceased had during her marriage eloped with the son of

Pradhan of the Village Chitara and that in the night of the

incident she was with her, watching television before they

parted for their respective rooms to sleep. This witness is

the  daughter-in-law of  appellant  No.2  and asserted  that

neither she nor the deceased had ever been harassed in the

family.

(27) The evidence on record and the competing arguments

have received our required attention. As the prosecution is

on the charge of the offences envisaged in Sections 304B

14

Page 15

and  498A  of  the  Code,  the  provisions  for  reference  are

extracted hereunder:

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

Explanation.  -  For  the  purpose  of  this sub-section,  “dowry”  shall  have  the  same meaning  as  in  section  2  of  the  Dowry Prohibition Act, 1961 (28 of 1961).

(2)  Whoever  commits  dowry  death  shall  be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being  the  husband  or  the  relative  of  the husband of a woman, subjects such woman to cruelty shall  be punished with imprisonment for  a  term which may extend to  three  years and shall also be liable to fine.

Explanation.—For  the  purpose  of  this section, “cruelty” means—

15

Page 16

(a) 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, limb or health (whether mental  or physical) of the woman; or

(b)  harassment  of  the  woman  where such harassment is with a view to coercing her or any 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.

(28) Whereas  in  the  offence  of  dowry  death  defined  by

Section 304B of the Code, the ingredients thereof are:

(i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances and

(ii) is within seven years of her marriage and

(iii) that soon before her death, she was subjected to cruelty  or  harassment by her  husband or any relative  of  the  husband  for,  or  in  connection with, any demand for dowry.

the  offence  under  Section  498A  of  the  Code  is attracted qua the  husband or  his  relative  if  she  is

16

Page 17

subjected to cruelty. The explanation to this Section exposits “cruelty” as:

(i) 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, limb or health (whether mental or physical) or

(ii) harassment  of  the  woman,  where  such harassment  is  with a view to coercing her or any 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.

(29) Patently thus, cruelty or harassment of  the lady by

her husband or his relative for or in connection with any

demand for any property or valuable security as a demand

for  dowry  or  in  connection  therewith  is  the  common

constituent of both the offences.

(30) The expression “dowry” is ordained to have the same

meaning  as  in  Section  2  of  the  Dowry  Prohibition  Act,

1961. The expression “cruelty”, as explained, contains in

its expanse, apart from the conduct of the tormentor, the

consequences precipitated thereby qua the lady subjected

17

Page 18

thereto. Be that as it may, cruelty or harassment by the

husband or any relative of his for or in connection with any

demand of dowry to reiterate is the gravamen of the two

offences.

(31) Section  113B  of  the  Act  enjoins  a  statutory

presumption as to dowry death in the following terms:

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

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

(32) Noticeably this presumption as well is founded on the

proof of cruelty or harassment of the woman dead for or in

connection  with  any  demand  for  dowry  by  the  person

charged  with  the  offence.  The  presumption  as  to  dowry

18

Page 19

death thus would get activated only upon the proof of the

fact that the deceased lady had been subjected to cruelty

or harassment for or in connection with any demand for

dowry  by  the  accused  and  that  too  in  the  reasonable

contiguity of death.

Such  a  proof  is  thus  the  legislatively  mandated

prerequisite  to  invoke  the  otherwise  statutorily  ordained

presumption of commission of the offence of dowry death

by the person charged therewith.

(33) A  conjoint  reading  of  these  three  provisions,  thus

predicate  the  burden  of  the  prosecution  to  unassailably

substantiate the ingredients of the two offences by direct

and convincing  evidence  so as  to  avail  the  presumption

engrafted in Section 113B of the Act against the accused.

Proof  of  cruelty  or  harassment  by  the  husband  or  her

relative or the person charged is thus the sine qua non to

inspirit  the  statutory  presumption,  to  draw  the  person

charged within the coils thereof. If the prosecution fails to

demonstrate by cogent coherent and persuasive evidence to

19

Page 20

prove such fact, the person accused of either of the above

referred  offences  cannot  be  held  guilty  by  taking  refuge

only of the presumption to cover up the shortfall in proof.

(34) The legislative primature of relieving the prosecution

of  the  rigour  of  the  proof  of  the  often  practically

inaccessible recesses of life within the guarded confines of

a matrimonial home and of replenishing the consequential

void,  by  according  a  presumption  against  the  person

charged, cannot be overeased to gloss-over and condone its

failure to prove credibly, the basic facts enumerated in the

Sections involved, lest justice is the casualty.            

(35) This  Court  while  often  dwelling  on  the  scope  and

purport of Section 304B of the Code and Section 113B of

the  Act  have  propounded  that  the  presumption  is

contingent on the fact that the prosecution first spell out

the ingredients of the offence of Section 304B as in Shindo

Alias Sawinder Kaur and another Vs. State of Punjab –

(2011)  11  SCC  517  and  echoed  in  Rajeev  Kumar  Vs.

State  of  Haryana – (2013)  16  SCC  640.  In  the  latter

20

Page 21

pronouncement,  this  Court  propounded  that  one  of  the

essential ingredients of dowry death under Section 304B of

the  Code  is  that  the  accused  must  have  subjected  the

woman to  cruelty  in  connection with  demand for  dowry

soon before her death and that this ingredient has to be

proved by the prosecution beyond reasonable doubt and

only  then  the  Court  will  presume that  the  accused  has

committed the offence of dowry death under Section 113B

of the Act. It referred to with approval, the earlier decision

of this Court in  K. Prema S. Rao Vs. Yadla Srinivasa

Rao – (2003) 1 SCC 217 to the effect that to attract the

provision of  Section 304B of  the  Code,  one of  the main

ingredients  of  the  offence  which  is  required  to  be

established  is  that  “soon  before  her  death”  she  was

subjected to cruelty and harassment “in connection with

the demand for dowry”.

(36) Tested  on the  judicially  adumbrated  parameters  as

above,  we  are  of  the  unhesitant  opinion  that  the

prosecution has failed to prove beyond reasonable doubt,

21

Page 22

cruelty or harassment to the deceased for or in connection

with any demand for dowry as contemplated in either of

the two provisions of the Code under which the accused

persons had been charged. Noticeably, the alleged demand

centers around a motorcycle, which as the evidence of the

prosecution  witnesses  would  evince,  admittedly  did  not

surface at the time of finalization of the marriage. PW-5,

the mother of the deceased has even conceded that there

was  no  dowry  demand  at  that  stage.  According  to  her,

when  the  husband  (who  is  dead)  had  insisted  for  a

motorcycle  thereafter  he  was  assured  that  he  would  be

provided  with  the  same,  finances  permitting.  Noticeably

again,  the  demand,  as  sought  to  be  projected  by  the

prosecution, if accepted to be true had lingered for almost

two years. Yet admittedly, no complaint was made thereof

to  anyone,  far  less  the  police.  Apart  from  the  general

allegations in the same tone ingeminated with parrot like

similarity by the prosecution witnesses,  the allegation of

cruelty and harassment to the deceased is founded on the

22

Page 23

confidential  communications  by  her  to  her  parents  in

particular and is not supported by any other quarter.

(37) To the contrary, the evidence of the defence witnesses

is consistent to the effect that no demand as imputed had

ever  been  made  as  the  family  of  the  husband  was

adequately well-off and further the appellant No.1 Baijnath

had  been  living  separately  from  before  the  marriage.

According  to  them  there  was  no  occasion  for  any

quarrel/confrontation or unpleasantness in the family qua

this issue. Significant is also the testimony of DW-3, the

sister-in-law of the deceased who indicated abandonment

of the matrimonial  home by her with the son of  Thoran

Singh,  the  Sarpanch  of  the  village  for  which  she

understandably  had  incurred  the  displeasure  of  the

in-laws.  DW-4,  the  father  of   DW-3  who  had  given  his

daughter in marriage in the same family had deposed that

he  did  not  ever  encounter  any  demand  for  dowry.  The

testimony  of  the  prosecution  witnesses  PW-3  and  PW-7

fully consolidate the defence version.

23

Page 24

(38) A cumulative consideration of the overall evidence on

the  facet  of  dowry,  leaves  us  unconvinced  about  the

truthfulness of the charge qua the accused persons. The

prosecution  in  our  estimate,  has  failed  to  prove  this

indispensable  component  of  the  two  offences  beyond

reasonable doubt.  The factum of  unnatural  death in the

matrimonial  home  and  that  too  within  seven  years  of

marriage therefore is thus ipso facto not sufficient to bring

home the  charge  under  Sections  304B and 498A of  the

Code against them.

(39) The predicament  of  the prosecution is  compounded

further by the by its failure to prove, the precise cause of

the death of the deceased. It is not clear as to whether the

death has been suicidal or homicidal. It is also not proved

beyond doubt, the origin and cause of the external injuries.

Though the obscurity of the causative factors is due to the

putrefaction of  the body,  the benefit  of  the deficiency in

proof, logically would be available to the persons charged.

24

Page 25

(40) In all, tested on the overall scrutiny of the evidence as

a  whole,  in  our  comprehension,  the  conviction  of  the

accused  persons  including  the  appellants  herein  on  the

basis of the materials on record would not be out of risk.

To reiterate, the prosecution has failed to prove the crucial

ingredient of cruelty and harassment by direct and cogent

evidence  thereby  disentitling  itself  to  the  benefit  of  the

statutory presumption available under Section 113B of the

Act.

(41) Whereas  the  analysis  of  the  evidence  by  the  Trial

Court,  in our view, has been in the proper perspectives,

factual and legal and thus the findings recorded by it are

valid, the High Court based its determination substantially

on presumptive inferences taking the aid of Section 113B

of  the  Act,  divorced  from  the  attendant  facts  and  the

evidence with regard thereto. We are thus of the opinion,

that the conclusions of the High Court do not constitute a

plausible view on the materials on record and cannot be

sustained.

25

Page 26

(42) The appellants thus in view of the evaluation made

hereinabove are entitled to the benefit of doubt. The appeal

is allowed. The impugned judgment and order is set-aside.

The  appellants  are  hereby  ordered  to  be  set  at  liberty

forthwith if not wanted in connection with any other case.

Let the records of the Trial Court be remitted immediately

for the needful.

…...........................................J. (DIPAK MISRA)

         …...........................................J. (AMITAVA ROY)

NEW DELHI; NOVEMBER 18, 2016.

26