REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1475 OF 2009

GIRISH SINGH   ...  APPELLANT(S)

VERSUS

THE STATE OF UTTARAKHAND       ... RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 1476 OF 2009

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant in Criminal Appeal No. 1475 of 2009

is  the  first  accused  and  the  appellant  in  Criminal

Appeal No. 1476 of 2009 is the second accused. They

were charged under Sections 306 read with Section 34

and Section 304B read with Section 34 of the Indian

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Penal Code, 1860 (hereinafter referred to as ‘the IPC’

for short). The first accused is the son of the second

accused.

2. It Is the case of the prosecution in brief that the

first accused used to treat his wife with cruelty on

account of dowry demand. The same allegation was made

against his father-second accused. It is also alleged

that  his  father  wanted  to  fulfil  his  lust  with  his

daughter-in-law.  She  did  not  agree.  The  accused

tortured her and gave her beating. The daughter-in-law

committed  suicide  by  burning  herself  on  05.06.1991.

After complying with the formalities, the charge-sheet

was  filed  against  the  accused.  Prosecution  examined

nine  witnesses  and  produced  17  documents.  The  Trial

Court  came  to  the  conclusion  that  the  prosecution

failed to prove the case against both the accused. They

were accordingly acquitted.  Reliance is in particular

placed on certain letters.

3. The appeal carried against their acquittal by the

State was allowed by the High Court by the impugned

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order. The appellants were convicted under Section 304B

read with Section 34 of the IPC. It was, however, found

that offence under Section 306 read with Section 34 of

the IPC was not made out against the appellants. The

appellants  were  sentenced  to  seven  years  rigorous

imprisonment.

4. We have heard learned counsel for the appellants

and learned counsel for the State.

5. Learned  counsel  for  the  appellants  would  submit

that no case is made out under Section 304B read with

Section 34 of the IPC. He would submit that the High

Court  has  reversed  the  verdict  of  acquittal  and

convicted  the  appellants  ignoring  the  fact  that  the

prosecution  witnesses  were  unreliable.  Prosecution

witnesses,  it  is  complained,  have  improved  their

version while they gave evidence in the witness box.

Contradictions emerging from their previous statements

under Section 161 of the Code of Criminal Procedure,

1973  (hereinafter  referred  to  as  ‘the  Cr.PC’  for

short),  demonstrated  that  their  testimony  in  court,

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which is relied upon by the High Court, could not be

the basis for reversal of acquittal. Reliance is placed

on certain letters as well.  

6. We  have  also  heard  the  learned  counsel  for  the

State who supported the judgment by pointing out that

there was evidence to justify the conviction.

7. Before  we  consider  the  evidence,  it  is  apposite

that we set out the following findings rendered by the

High Court:

“22.  …  Just  before  her  death  and after  5-6  months  of  her  marriage, respondents-accused Girish Singh and Jodh Singh harassed the deceased Ishwari Devi for getting T.V. and V.C.R. in dowry and by  non-fulfilling  the  demand  of  dowry, they  were  continuously  beating  her. Respondent – Jodh Singh also harassed her by saying her to provide him liquor in the glass and after taking liquor in the state of  intoxication,  he  was  asking  her  to sleep with him. On her refusal, she was subjected to mental cruelty. P.W. 4 Ganesh Singh has specifically stated that after coming back from Mumbai, he came to know that respondent-accused Jodh Singh after taking  the  liquor  was  trying  to  commit rape with Ishwari and also used to harass her for T.V. and V.C.R., due to which his daughter Parvati Devi, P.W. 2 Smt. Laxmi Devi,  P.W.  3  Smt.  Anandi  Devi,  P.W.  4

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Ganesh Singh, and P.W. 5 Yasodh Singh, it is proved beyond reasonable doubt by the prosecution that Ishwari Devi was harassed for the demand of T.V. and V.C.R. in dowry by  the  respondents  after  5-6  months  of marriage and they were continuously making demand of dowry just before her death …. Therefore,  in  view  of  the  aforesaid discussion,  it  is  proved  that  deceased Ishwari  Devi  died  an  unnatural  death within 1 ½ years of her marriage in the house  of  respondents  where  she  was residing  along  with  her  husband-  Girish Singh  and  father  in  law  Jodh  Singh. Deceased Ishwari Devi has died due to the burn injuries and her body was found to be 100% burnt by the Medical Officer P.W. 9 Dr. P.K. Karnatak. As such, it has been proved  by  the  prosecution  beyond reasonable  doubt  that  the  deceased  was subjected  to  mental  cruelty  by  the respondents  for  the  demand  of  T.V.  and V.C.R. in dowry and due to non-fulfilment of this demand and due to the harassment and  Marpit  by  the  respondents,  Ishwari Devi committed suicide by burning herself in the house of her husband. Hence, in view  of  the  above-said  facts  and circumstances  of  the  case,  offence punishable u/s 304-B/34 of IPC is fully made  out  against  the  respondents  beyond reasonable  doubt  and  learned  Sessions Judge has erred in law by acquitting the respondents’  u/s  304-B  r/w  Section  34 IPC.”

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8. Thereafter, the High Court proceeds to hold that

the  Sessions  Judge  erred  in  holding  that  the  oral

evidence is not supported by the documentary evidence.

After referring to Section 113B of The Evidence Act,

1872, it is found that a presumption is to be drawn

under  the  said  provision  that  dowry  death  has  been

caused. The finding by the Trial Court that the cruelty

to his wife by the first accused is not proved, was

found to be incorrect. Still further, it is found that

the Trial Court erred in finding that the deceased ran

away to her father’s house where she committed suicide.

The  deceased  committed  suicide  in  the  house  of  the

appellants. In regard to the letters produced by the

appellants to show that there was no cruelty, it is

found that the actual letters, which show the cruelty,

written by the deceased could not be produced due to

the  reason  that  as  submitted  by  PW4  as  they  were

misplaced  due  to  the  shifting  of  the  house.  The

contradictions  in  the  statements  made  by  the

prosecution witnesses also did not appeal to the High

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Court. It was found that the deposition given by the

prosecution witnesses was reliable and trustworthy.  

9. Now,  the  time  is  ripe  for  us  to  consider  what

prosecution witnesses have deposed. PW1 is the sister

of the deceased. She is shown as 14 years old on the

date  of  deposition.  She  states  that  whenever  the

deceased sister used to come to her house, she used to

tell her that father-in-law of the deceased and her

husband complained about bringing no dowry and used to

say that colour television was not given. Father-in-law

would consume liquor and ask her to stand in front of

her and sleep with him. When sister did not act like

that, he used to beat her up. The mother of the witness

used  to  pacify  her  and  sent  her  to  her  matrimonial

home. She had gone 7-8 times to see her sister to the

matrimonial home. They used to ask her sister how she

has come without dowry. In the cross-examination she

would, inter alia, state as follows:

The witness went to leave her sister

last time to her matrimonial house about

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three  months  back.  Her  grandmother  was

also  with  her.  No  report  was  given

anywhere regarding beating to grandmother

by the accused. It is further stated that

her  sister  was  influenced  by    devta

(religious spirit). Then her matrimonial

home conducted religious ceremony for her.

Her sister became normal after conducting

it. Whatever madness her sister used to

do; it was taken care of by her in-laws

house. Only prayers were offered.

First accused did not have a good opinion

about her sister. Her sister held him good

but he did not respond. Sister used to

tell  about  aforesaid  facts  of  consuming

liquor to stand in front of him and to

sleep  with  him.  Yashodh  Singh  is  her

uncle. These facts were not told to her

uncle by them. She was examined by Kanungo

(Officer).  In  regard  to  her  statement

under  Section  161  of  the  Cr.PC  that

deceased was alright till 5-6 months after

her marriage in the matrimonial home, she

denied making that statement. She denies

making  the  statement  that  the  deceased

used to run away to their house. She says

she has stated to Kanungo that the second

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accused  used  to  beat  her  sister.  She

states that if the Officer has not written

it, she cannot give the reason. About the

sister weeping while complaining and such

statement  not  being  found,  the  witness

says that she has told the Kanungo. The

witness  stated  that  she  cannot  say  the

reason  why  it  is  not  written.  Again,

statement  that  her  mother  used  to  send

back the deceased after pacifying her, it

is stated that regarding the omission, it

is  her  version  that  it  was  stated  to

Kanungo.

(Emphasis supplied)

10. PW-2 is the mother of the deceased. She states,

inter  alia,  that  the  appellants  used  to  tell  the

deceased  that  television  and  VCR  were  not  given  in

dowry.  The  accused  appellant  used  to  say  to  the

deceased that she is chipri (flattened nose) and not of

their choice. They used to threaten her that they will

burn her by pouring kerosene oil if she did not bring

television and VCR. These facts were disclosed to her

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by the deceased. The second accused, in the presence of

the witness, said that if television and VCR were not

brought, she would be finished even before coming of

her father to house.  

11. Her daughter had told her that in the absence of

the first accused, the second accused would ask her to

serve liquor and to sleep with him after being drunk.

When she refused, he used to beat her up and show her

khukri (knife). Accused had seen the deceased before

marriage. Thereafter, marriage was solemnized. They had

not promised to give television and VCR. In the cross-

examination, she would, inter alia, state that:

Her  daughter  lived  happily  for  5-6

months  of  marriage.  Thereafter,

disturbances  started.  About  one  year

disturbances  remained.  For  about  5-6

months, deceased did not make complaint of

her  in-laws.  The  first  accused  used  to

roam in search of job. When deceased came

to their house before her death, she was

talked  badly  and  was  beaten  up.  Her

statement was taken three times. She is an

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illiterate. She had told all the facts to

Patwari   in a statement. She cannot state

the reason if the fact of television and

VCR is not being written. She further says

that deceased used to run away to their

house after 5-6 months and they used to

ask  her  not  to  run  away.  Her  daughter

loved her husband but he did not love her.

She  was  confronted  with  the  statement

recorded by   Patwari   (  Patwari   performs the

function  of  Police  in  certain  parts  of

State of Uttarakhand) that she had never

stated  about  harassment  or  beatings  or

bringing less dowry by her husband.  She

denied having made the statement.  She is

unable  to  tell  the  reason  how  the

statement  is  written.  She  is  again

confronted with the statement that she had

no suspicion about abetment or killing or

about any harassment by her husband. She

would  say  that  the  statement  has  been

wrongly  written  by  the    Patwari  /Kanungo.

Her  husband  has  never  come  during

vacations after marriage of the deceased

before  her  death.  He  has  visited  twice

after  her  death.  She  says  deceased  has

written about her grief in one year of her

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marriage to her father. She deposed that

the deceased was an illiterate and she did

not know how to read or write. Deceased

had come a week before her death to their

house. She had informed Yasodh Singh about

the  grief  of  the  deceased  and  all  the

facts on getting an information about the

death.  She has stated about the deceased

being called    chipri   and not being liked

and about not bringing television and VCR

to the    Kanungo  . She says, if he has not

written, she has no reason to offer. Even

the  statement  that  second  accused  had

stated  in  her  presence  that  if  the

deceased did not bring television and VCR,

then, she and her parents would be killed,

was found missing in the statement and she

has no reason for the same. She claims to

have  made  the  statement.   Showing  of

khukri   by  the  second  accused  is  found

missing for which she had no reason except

saying that she has no reason for the same

not being written. No doubt she claims to

have stated no. She would say about the

second accused consuming liquor and asking

the deceased to sleep with him, she was

told this by the deceased and PW1 has not

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told these facts to her (be it noted that

PW1 has categorically stated that she has

told  these  things  to  her  mother,  viz.,

PW2). Suggestion is made that the deceased

became restless due to influence of evil

spirit which is no doubt denied by the

witness.

(Emphasis supplied)  

12. PW-3  is  the  grandmother  of  the  deceased.  She

repeated what is stated by PWs 1 and 2, namely, that

accused  after  marriage,  asked  the  deceased  to  bring

television and she would say that they told her that

she was chipri. They used to beat her up when she was

sent back and when she came home, she used to pacify

her and sent back to her matrimonial home. Once when

she  went  to  leave  the  deceased,  then,  the  second

accused  beat  her  2-3  times  on  the  chest  of  the

granddaughter.  Deceased  used  to  tell  her  mother  and

sister that the second accused consumed liquor, asked

her to serve liquor and thereafter to sleep with her.

She would be beaten up when she refused to sleep. She

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was  asked  to  bring  television.  In  the  cross-

examination,  it  is  stated  that  deceased  was  chipri

since  beginning.  In-laws  of  the  deceased  had  good

behaviour with her till two months. The deceased lived

properly till six months. She used to do all household

works and she used to run away from matrimonial home

after 6-7 months. Her daughter-in-law/PW2 did not go to

the house of the second accused for patch up. Deceased

had told the fact of demand of television 6-7 months

before  her  death  to  her  mother.  In  regard  to  there

being no statement by her to the    Patwari   that second

accused used to beat the deceased, she would say that

she had told him. She says that the deceased has not

told her that her father-in-law, with an intent to rape

her, used to scold her. She had given statement to the

Patwari   that the deceased used to tell her mother about

the father-in-law scolding her with an intent to rape

her. Regarding the omission about the statement that in

her  presence,  the  second  accused  used  to  beat  the

deceased badly and that he was inclined to beat her up,

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she is unable to tell the reason. Upon her statement

that the second accused beat the deceased three times

on her chest and was inclined to beat her also, not

being found on the statement, she is unable to give any

reason. But according to her, she had told the Patwari

this.  

13. PW-4 is the father of the deceased. He would state,

inter alia, that the first accused had asked to give

television  and  VCR  in  marriage  but  he  told  that  he

could give only to the extent of his ability. Marriage

was solemnized in his presence when he came during his

yearly vacations.  After 5-6 days of marriage, when he

was going back and the first accused came to take the

deceased, then, he told him about television and VCR

not being given. After five months of normal behaviour,

accused  started  misbehaving.  His  daughter  could  read

and  write  a  little  and  she  had  written  about  the

television and VCR, bad language and abuse, in those

letters  (PW-2-mother  of  the  deceased,  on  the  other

hand,  be  it  noted,  stated  that  the  deceased  was

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illiterate and could not read and write). On receiving

information about the murder of his daughter, he was

told about the complete incident by his family members.

On this, he came to know about the second accused being

drunk, trying to rape the deceased and harassing for

television and VCR and for that reason, his daughter

committed  suicide.  Regarding  letters  written  by  his

daughter,  they  were  lost  during  shifting  of  house.

Prior  to  the  marriage  of  his  daughter,  the  first

accused has not seen the deceased. He has also not seen

the first accused/his son-in-law before marriage. The

first accused came on the second day after the  barat

returned (marriage gathering). He came in the evening

and returned next day morning. The first accused and

the deceased came after 5-6 days after marriage.  When

they came after 5-6 days after marriage, he was on duty

(in chief examination, it may be remembered that the

witness says that when he was going back after 5-6 days

of  marriage,  the  first  accused  came  to  take  his

daughter and then the first accused had complained that

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the television and VCR had not being given and the he

stated that he had given according to his ability and

if  everything  goes  fine,  it  will  also  be  done).  He

admits  to  have  received  only  letter  K3  from  second

accused.  He  states  that  there  is  no  mention  of

harassment for dowry but they used bad language and

harassment. He admits to have written and signing two

letters  marked  as  Kha1  and  Kha2  and  is  unable  to

explain why any fact of dowry harassment has not been

written in these letters. He admits that these letters

were  written  in  response  to  letters  by  deceased.

Confronted  with  the  omission  to  mention  about  the

demand for VCR, the coming of the son-in-law after 5-6

days after marriage and demand of dowry, he is unable

to state the reason why they are not written. According

to him, he has told the Kanungo.  

14. PW-5  is  relative  of  the  deceased.  He  says  that

deceased would tell all the facts to her mother about

the harassment regarding television and VCR in dowry.

He was also told; he says. He has deposed on similar

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terms  in  regard  to  the  second  accused  asking  the

deceased  to  sleep  with  her  after  being  drunk  and

allegation regarding  chipri (flat nose). He, however,

in cross examination says that he had told the Officer

about less dowry being given and about the demand of

television and VCR. He says further that if it is not

written,  he  cannot  tell  the  reason.  Similar  is  the

position  with  regard  to  harassment  by  the  first

accused.  

15. PW-6 is  Patwari. He has referred to the various

steps taken by him in the investigation. He states in

cross-examination that no complaint was received by him

from the side of the family of the deceased.  

16. PW-7  is  Kanungo.  He  states  that  he  took  the

statements of the witnesses PWs 1, 2 and 5. Between

05.06.1991 to 08.06.1991 nobody from the side had come

and told him about the facts of harassment of deceased,

demand  of  dowry  and  attempt  to  commit  rape  by  the

second accused. No evidence was given against the first

accused before 19.06.1991. he says as follows:

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“11.  I  have  taken  the  statement  of Km. Parvati and she had stated that “My sister was ……………. hold good” she had also given the statement that “she use to ran away to our house” I produce all the three aforesaid true copy of statements in my handwriting  and  signatures.  These  have been marked as Exh. Kha- 3 to 5.

12.  Witness  Laxmi  had  given  the statement  that  “He  never………….  Said anything” She had also stated that “I have suspicion ……. regarding him”, Both these marked true copy of these statements are in my handwriting and signatures. I submit the same. These are been marked as Kha-6 and Kha-7.  

13. Witness Anadi had stated to me, “I also went ………. not gone”. The true copy of the statement is being submitted, which is in my handwriting and signatures. This has been marked as Exh. Kha-8.”

17. The statement which was got marked in regard to PW1

reads as follows:

“Deceased had never complained about

her  husband/first  accused  and  she  was

happy  always  with  him  and  the  first

accused also held her good.”  

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18. In  regard  to  the  statement  proved  in  regard  to

Laxmi-PW2/mother of the deceased, the actual statement

is

“she  (apparently  the  deceased)  had

never  complained  about  him  regarding

harassment or beating or any fact about

giving less dowry.”

(Emphasis supplied)

19. The further statement which is proved through PW7-

Kanungo and attributed to PW2, reads as follows:

“I  have  no  suspicion about  the

killing or getting killed the deceased or

any harassment by him.”

(Emphasis supplied)

20.  PW-5, the uncle of the deceased is proved to have

made the statement  

“The  husband  of  the  deceased/Girish

Singh is at his residence since one month

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and  I  have  no  knowledge  about  any

harassment of deceased.”  

21. Now, much reliance is placed by the learned counsel

for the appellants on two letters which have been sent

by none other than PW2-father of the deceased. These

letters  were  sent  admittedly  by  the  father  of  the

deceased  to  her  as  they  were  put  to  him  in  his

examination  and  he  admits  the  same.  They  read  as

follows:

Letter dated 29.02.1991

“Dated: 29.02.1991

Om Ganeshay Namah:

Jai Bhagwati Mata

Dear  daughter,  accept  my  hugs  and blessings and love to both the son in laws and regards to Samadhi ji and love to all others at home. I am fine by grace of God and prays to supreme being for the same for  your  family.  You  may  live  happy always, then I may also felt the same. The reason for writing letter today is that how is the crop this year and if it is

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sown or not and what other professional things  are  going  on?  I  received  your letter and came to know about the well being  and  felt  happy  for  the  same.  Do communicate in the same manner by writing letters.  Blessings  from  younger  brother Trilok  and  love  from  Ganesh.  Pay  my regards to elders and love to children. And daughter, you concentrate on your work and also pray daily to God. You will go during Holi. I am sending Rs. 100/- for you. I will bring something for you in box during vacations. Ask your mother to take medicines. I have sent money and to have treatment properly by going to Chamvat and do not do any heavy work and ask children to concentrate on studies and hygiene. I will come in vacations during May-June by God’s  grace.  Inform  complete  news  in letters and reply as soon as you receive this letter.  

Yours father Sd/- (illegible)”

Letter dated 20.03.1991

“Dated: 20.03.1991

Om Ganeshay Namah:

Jai Bhagwati Mata

Dear daughter, say my love to son in law and blessings to him. Love to younger son in law and regards to friend Samdhi ji. Also say my regards in neighbourhood

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accordingly and also love to children. I am  fine  here  by  grace  of  God  and  also prays to God for your happiness. Also say regards  and  blessing  from  Trilok  and Ganesh.  

I  received  your  letter  for  well being. I came to know about the same after reading your letter. My heart felt very happy and hope that in future also you would  be  writing  letters.  How  the agriculture  is  going  on.  Dear  daughter, take care of your mother and also keep going there and also ask her to take some medicines. Ask son in law to pass his X class. It is hard time and he has to be self dependent. It is the duty of every person to do progress and you are wiser enough. Ask him to be more responsible. I am finishing off this letter and forgive for any mistake.  

Reply soon.  

Yours father Sd/-“

Address: G.S. Bisht State Bank of Hyderabad S.V. Road, Andheri West

Bombay”

22. There  is  further  documentary  evidence,  namely,

letter dated 02.05.1991, sent by the second accused to

PW4-father of the deceased. It reads as follows:

“(Inland Letter)

23

To, Sh. Ganesh Singh Bisht State Bank of Hyderabad S.V. Road, Andheri West Bombay.

02.05.1991(overwrited)

Dear friend Samdhi ji, accept regards on behalf of your Samdhi Jodh Singh Mehta.  Regards to younger Samdhi also and hello to all other friends.

I am fine here with the small child and hope the same for you.  The main reason to write the letter is because the daughter-in-law (Bahu) had ran away to her mother’s house on 02.04.1991 and had not returned even when I went to take her.  Since I being father in law and like her father is duty bound to frighten her to keep away from all bad deeds. But she wants to be an independent kinds therefore I am writing this letter to you for the first and the last time.  I have not written any letter in good times, therefore, writing now.  If you would have been in my place, you would have felt bad only what I have been hearing of her.  I am an army man and have habit to command and control but the fact is not like this.  If I say anything once to her, she reciprocates four times. The son is not at home.  What can I say?  I have sold the buffaloes and had given up the agricultural land. Nobody listens to me but alright.  You write a letter to your daughter from there only.  Nothing is spoiled yet.  If she wants to come, it is her house.  I have nothing remain.  She may live, cook and so, the way

24

she wants.  I will remain a spectator and not say anything.  What else can I write?

You are also having all females in your house. Few things can be said there only. I cannot write all things in the letter. Please forgive me forever from today.  We  have  not  done  good  by  marrying  our children. We have done bad only.  Forgive me and do reply this last letter of mine. I will be waiting for it.

Yours Samdhi

(illegible) Jodh Singh Mehta

Friend, I have written this letter one month before but did not send it because I thought if good sense prevails, it would be better.  But she wants to live separately.  Wish to bring grocery from her mother’s place. We have been disgraced from all sides. I am in your hands. The letter you find here was written on 05.04.1991.

Yours Jodh Singh (Sd/-)”

23. The last letter is dated 28.05.1991. This is sent

by PW4-father of the deceased in envelope addressed to

his son-Kishore Kumar and it reads as follows:

Dated: 28.05.1991

25

My regards with folded hands to respected mother and convey my hugs, love and blessings to children.  Also convey regards to elders and love and blessings to children on behalf of younger brother Ganesh. Blessings to dear daughter Ishwari.

By the Grace of God, we are fine here and pray to God for you and family regarding the well being of everybody so that all of you may live  peacefully  and  happily  and  then  I  may also feel happy.  How was rain this year?  How was wheat crop this year?  I received your letter of well being and came to know about the  state  of  affairs.   Grandson  is  getting employment. I felt happy to pray to God that our family shall live happily.  You cooperate with the grandson in his work and get prayers done on behalf of me. I am sending Rupees one thousand. I will come in month of July during vacations and for the reason that I may be present at home during autumn season. I would be coming late for vacations. Ask Ishwari not to worry and don’t send her, even if anybody comes to call her. Send the address of Jamai ji (son-in-law) to meet me.  Had examinations of children held? Ask them to concentrate on studies.  Give news of home and village.  How is the health of mother of Ishwari?  When the buffalo is going to deliver the calf?  Convey my  regards  to  elder  brother  and  love  to children.  Brother, you fulfil all religious obligations  (Devta  Pujan)  with  respect  and pride.  Do  write  the  complete  news  of  the family  in  the  letter.  You  are  intelligent enough and I really feel that brother you are

26

wise.  I am bothering you due to difficult circumstances.

Reply soon. Yours younger brother

Sd/- illegible”

24. It is relevant to remember that the father of the

deceased  has  admitted  that  the  letters  were  written

dated  28.02.1991  and  20.03.1991  in  reply  to  letters

written by the deceased. The letters do not disclose

about any harassment or cruelty or the dowry demand. In

his deposition, PW4-father of the deceased would say

that  he  is  unable  to  say  why  any  fact  of  dowry

harassment has not been written in these letters. The

letters  written  by  the  deceased  have  been  misplaced

according to PW4-father of the deceased.

25. The significance of the letters, admittedly written

by PW4 to her deceased daughter and the absence of any

complaint about dowry harassment, lies in the following

categoric statement made by PW4-father of deceased, as

follows:

27

“Accused  behaved  normally  with  the

deceased for five months and thereafter,

they  started  misbehaving.  My  daughter

could read and write a little and she had

written two letters to me in this regard.”

(Emphasis supplied)

26. The aforesaid letters written by the deceased are

not made available on the ground that they had been

misplaced.  Certainly,  if  these  letters,  which  are

admittedly written by PW4-father of the deceased are in

response  to  the  letters  written  by  his  deceased

daughter, the contents of letters written by the father

do not bear out the case of conduct by the accused as

is sought to be made out.

27. We have referred to the entire evidence. The Trial

Court acquitted the accused. The jurisdiction of the

Appellate Court, when it deals with such an order, is

no longer res integra and is subject matter of catena

of decisions of this Court.  

28

28. In Upendra Pradhan v. State of Orissa  1, this Court

took the view that if there is benefit of doubt, it

must go to the accused, and in case of two views, the

view that favours the accused, should be taken,  which

was more so where the Trial Court’s decision was not

manifestly  illegal,  perverse  and  did  not  cause

miscarriage of justice.

29. In  Dilawar Singh and others v.  State of Haryana  2,

this Court took the view that court will not interfere

with  the  verdict  of  acquittal  merely  because  on

evaluation of evidence, a different plausible view may

arise.  Very  substantial  and  compelling  reasons  must

exist with the Appellate Court to interfere with an

acquittal.

30. In Gamini Bala Koteswara Rao and others v. State of

Andhra Pradesh Through Secretary  3, this Court accepted

the contention of the appellant that interference in an

appeal  against  acquittal  should  be  rare  and  in

1 (2015) 11 SCC 124 2 (2015) 1 SCC 737 3 AIR 2010 SC 589

29

exceptional circumstance. It was further held that it

is open to the High Court to reappraise the evidence

and conclusions arrived at by the Trial Court. However,

it  is  limited  to  those  cases  where  the  judgment  of

Trial Court was perverse. This Court went on to declare

that the word “perverse”, as understood in law, has

been  understood  to  mean,  “against  the  weight  of

evidence”. If there are two views and the Trial Court

has taken one of the views merely because another view

is plausible, the Appellate Court will not be justified

in interfering with the verdict of acquittal (See  K.

Prakashan v. P.K. Surenderan  4).

31. Section  304B  of  the  Indian  Penal  Code  reads  as

follows:

“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

4 (2008) 1 SCC 258

30

33. Thus, it can be seen that the offence created by

Section  304B  requires  the  following  elements  to  be

present in order that it may apply:

I. Within 7 years of the marriage, there must

happen the death of a woman (the wife).

II. The death must be caused by any burns or

bodily injury.  

OR

The  death  must  occur  otherwise  than  under

normal circumstances.

III. It  must  be  established  that  soon  before

her  death,  she  was  subjected  to  cruelty  or

harassment.

IV. The cruelty or harassment may be by her

husband or any relative of her husband.

V. The cruelty or harassment by the husband

or relative of the husband must be for, or in

connection with, any demand for dowry.

32

34. Section  304B  treats  this  as  a  dowry  death.

Therefore, in such circumstances, it further provides

that husband or relative shall be deemed to have caused

her death.           Section 113B of The Indian

Evidence Act, 1872 provides for presumption as to dowry

death. It provides that when the question is whether

the dowry death, namely, the death contemplated under

Section  304B  of  the  IPC,  has  been  committed  by  a

person, if it is shown that soon before her death, the

woman  was  subjected  by  such  person  to  cruelty  or

harassment,  for  in  connection  with,  any  demand  for

dowry, the Court shall presume that such person had

caused the dowry death. It is no doubt a rebuttable

presumption  and  it  is  open  to  the  husband  and  his

relatives  to  show  the  absence  of  the  elements  of

Section 304B.

35. The  foremost  aspect  to  be  established  by  the

prosecution is that there was reliable evidence to show

that the woman was subjected to cruelty or harassment

by her husband or his relatives which must be for or in

33

connection with any demand for dowry, soon before her

death. Before the presumption is raised, it must be

established that the woman was subjected by such person

to cruelty or harassment and it is not any cruelty that

becomes the subject matter of the provision but it is

the cruelty or harassment for or in connection with,

demand for dowry.

36. Admittedly, the deceased was influenced by spirit

(devta).  Religious  ceremony/prayers  were  held.  The

deceased became normal after doing it. Still further,

there is evidence that whatever madness the deceased

used to do, it was taken care of by her in-law’s house.

The above facts emerge from the testimony of PW1-sister

of the deceased herself.  It is relevant to remember

that it is a case of suicide.  In the statement under

Section 313 of the Code, the 1st accused in fact states

as follows:

“The deceased was under influence of evil

spirit.  We conducted prayers two times but

she  could  not  be  cured.   Her  mind  was

34

restless and she committed suicide and her

family falsely implicated us.”

37. PW4-father of the deceased completely contradicts

himself, when in cross-examination, he states that 5-6

days after marriage, the first accused and the deceased

came,  he was on duty. There is evidence when PW4 was

working in Bombay (See the evidence of PW2/wife of PW4,

who  has  deposed  that  her  husband  was  working  in

Bombay). Earlier in cross-examination, PW4 has deposed

that when he was going back after 5-6 days of marriage,

the first accused came to take the deceased and then

the first accused has said that television and VCR has

not been given. PW4 says in chief examination that he

had told the first accused that he has given according

to his ability and if everything goes fine, it will

also  be  done.  PW4  further  stated  that  on  this,  the

first accused said that deceased was having flat nose.

Thereafter, he states that he went back to Bombay on

his duty.

35

38. We noticed that this aspect has not been considered

at  all  by  the  High  Court.  This  contradiction  in

evidence goes to the root of the matter. This proves

that the prosecution case sought to be proved through

PW4, is unacceptable.

39. PW2 would say that the deceased was an illiterate.

She did not know how to read and write. On the other

hand, PW4 would depose that the deceased could read and

write letters. In fact, PW2 herself stated that her

husband-PW4 reached home after hearing about the death

of the deceased and told PW2 that he has received two

letters  of  the  deceased  regarding  harassment  by  the

accused about dowry and one letter of Jodh Singh-the

second accused. It is here that two letters which have

been written admittedly by PW4-father of the deceased,

assumes critical significance.

40. PW2-wife  of  the  PW4,  as  we  have  noticed,  has

deposed  that  PW4  has  told  her  that  he  received  two

letters from the deceased where there is reference to

harassment about dowry by the accused.

36

41. PW4,  when  questioned  about  the  letters,  admits

having sent the letters by way of reply to such letters

written by the deceased.

42. We have already extracted the letters. It is amply

clear that there is no reference about any harassment

or cruelty on account of dowry in those letters. PW4,

in fact, deposes that he cannot tell the reason that

why any fact of dowry harassment has not been written

in those letters. He admits that those letters were

written  in  reply  to  the  letters  written  by  the

deceased. Significantly, the two letters written by the

deceased  are  not  produced  by  the  prosecution.  The

reason  for  non-production  is,  they  were  misplaced

during  shifting  of  the  house.  Even,  accepting  that

those letters were misplaced, the question whether they

contained allegation of harassment due to dowry, should

have  been  resolved  with  reference  to  the  letters

admittedly sent by PW4 to the deceased within a few

days of the receipt of the letters. In other words, a

reasonable  view  would  be  that  as  reference  to  any

37

harassment  regarding  dowry  is  conspicuous  by  its

absence  in  the  letters  written  by  the  PW4  to  the

deceased. There were no allegations of harassment on

account of dowry in the letters written by the deceased

to her father-PW4. In this regard, the High Court, in

the  impugned  judgment,  has  proceeded  to  ignore  this

vital  aspect  and  proceeded  on  the  basis  that  the

averments made by the deceased of the cruelty caused by

the appellants were mentioned in the letters sent by

the  deceased  and  letters  written  by  PW4,  are  not

helpful  to  resolve  this  issue.  The  last  of  the  two

letters written by PW4-father of the accused is dated

20.03.1991. The death took place on 05.06.1991. Even,

in the letter written by PW4, letter dated 28.05.1991,

in  an  envelope  addressed  to  his  son,  there  is  no

mention about any harassment or cruelty on account of

dowry demand. He only says to ask the deceased not to

worry and not to send her even if anybody comes to call

her. The High Court, however, still takes the view that

38

dowry related harassment was mentioned in letters sent

by the deceased which are not even produced.

43. We  are  of  the  view  that  this  approach,

particularly, in an appeal against acquittal is clearly

unacceptable and cannot be approved.

44. Still  further,  through  the  Officer,  statements

actually made by the prosecution witnesses, have been

proved. PW1-sister of the deceased, in her statement,

stated as follows:

“The  deceased  had  never  complained

about the first accused and she was happy

always  with  him  and  brother-in-law  also

held her good.” This statement made by her

to the Officer was also put to her. She

merely says that she does not know how

this fact was written in her statement.

She  says  she  has  not  given  such  a

statement.  She  is  unable  to  give  the

reason.

45. The High Court, in regard to the said statement,

gets over previous statement proved though Officer by

39

stating that the statement was not given by the witness

and that she was a girl of 13 years and further stated

that her deposition in court inspires confidence.

46. Likewise, PW2-mother of the deceased, has given her

statement that deceased has never complained about him

regarding harassment or beatings or fact of giving less

dowry. Still further, she is also proved to have given

the statement that she had no suspicion of killing or

getting killed by the accused or any harassment by him.

Similar  findings  are  rendered  by  the  High  Court  in

regard to the said statements.

47. We would think that particularly in an appeal from

acquittal, the High Court has exceeded its jurisdiction

in the appreciation of evidence as well as its approach

to  how  the  reliability  of  the  witness  is  to  be

evaluated.  

48. We are troubled with another aspect highlighted by

the  facts  of  this  case.  A  right  of  appeal  is  the

creature of statue. Unless appellate power is expressly

limited by additional conditionalities, the Appellate

40

Court has power or rather is duty bound in the case of

an appeal by the accused to reappraise the evidence.

Even  in  an  appeal  against  acquittal,  the  appellate

court  has  power  of  reappraisal  of  evidence  though

subject to the limitation that interference would be in

a case where the Trial Court’s verdict is against the

weight  of  evidence  which  is  the  same  thing  as  a

perverse  verdict.  We  need  not  catalogue  the

circumstances which are well-settled.

49. In this case, we notice that the High Court has

referred to the contents of the chief examination of

the witnesses. Thereafter, it has been stated that the

witnesses  have  been  cross-examined  at  length  but

nothing has come out in evidence which would create any

doubt in his evidence. The witnesses are declared as

being found reliable and believable. We have noted the

facts in this case.  

50. Truth  in  a  criminal  trial  is  discovered  by  not

merely  going  through  the  cross-examination  of  the

witnesses.  There  must  be  an  analysis  of  the  chief

41

examination of the witnesses in conjunction with the

cross examination and the re-examination, if any. The

effect of what other witnesses have deposed must also

enter  into  consideration  of  the  matter.  On  the  one

hand, the laudable object underlying Section 304B of

the IPC is not to be lost sight of. On the other hand,

it is equally important that the Appellate Court must

not be oblivious to the fact what it is duty bound to

find is whether an offence is committed or not and such

a pursuit also would embrace the duty of the court to

apply its mind to the evidence as a whole and arrive at

conclusions  as  to  facts  and  inferences  therefrom  as

well.   After  all,  at  stake  for  the  accused  are,

priceless rights to liberty, reputation and the right

to  life,  not  only  of  himself  but  also  his  family

members. The Law Giver, has contemplated that the High

Court will be the final arbiter of facts and even of

law.  The  jurisdiction  of  the  Apex  Court  was

deliberately limited to the extra ordinary powers it

enjoys under Article 136 of the Constitution of India

42

unless it be exercised under other provisions. What we

wish to emphasise is that the cause of justice and the

interest of litigants would be better subserved if the

Appellate Court takes a closer look, in particular of

the cross-examination of the witnesses and analyse the

same.

51.  There  is  yet  another  important  aspect  in  this

matter. It is true that the deceased died on 05.06.1991

which was within seven years of marriage. It is equally

true  that  her  death  was  due  to  burning  and  she

committed suicide. It is not a case where the accused

stood charged under any provision except Section 304B

read with Section 34 of the IPC and Section 306 read

with  Section  34  of  the  IPC.  The  case  of  abetting

suicide under Section 306 read with Section 34 of the

IPC has been found unacceptable both by the Trial court

and the High Court and the appellants stand acquitted.  

52. A  perusal  of  the  impugned  judgment  of  the  High

Court would show, that accepting the version of the

prosecution  witnesses,  the  High  Court  has  been

43

persuaded to hold  inter alia that the second accused

also harassed her by asking her to provide liquor in

the glass, and after taking liquor, in the state of

intoxication, he used to ask her to sleep with him. On

her refusal, it was found that she was subjected to

mental cruelty. Reference was made to evidence of PW4-

father of the deceased that after he came back from

Mumbai, he came to know that the second accused was

taking liquor and trying to commit rape and also used

to harass her for television and VCR due to which she

committed suicide.

53. The High Court was in clear error in taking into

consideration  the  evidence  relating  to  harassment  by

the second accused on the basis that he, in the state

of intoxication, asked her to sleep with him, and on

that basis, she was subjected to mental cruelty. The

said evidence is totally irrelevant and foreign to the

scope of a trial for the offence under Section 304B of

the IPC. It does not relate, at all, to the demand for

dowry.  

44

54. As regards the demand for dowry, having regard to

the state of the evidence, which we have elaborated, we

would think that there was no occasion for the High

Court to even raise a presumption that the deceased in

this case has been subjected to cruelty or harassment

in connection with any demand for dowry. It may be true

and it is not disputed by appellants that as found by

the High Court, the deceased died in the house of the

accused.  The  fact  that  the  High  Court  proceeded  to

arrive  at  finding  of  guilt  in  an  appeal  against

acquittal  by  the  Trial  Court  in  the  state  of  the

evidence, which we have referred to, does not commend

itself to us for acceptance.

55. In such circumstances, we would think that the High

Court overstepped its limits in dealing with an appeal

against acquittal and the view taken by the Trial Court

appears to have arrived at, having regard to the state

of evidence, to be a possible one, which did not merit

interference by the Appellate Court.

45

56. The  upshot  of  the  above  discussion  is  that  the

appeals are only to be allowed and we allow the appeals

and set aside the judgment of the High Court to the

extent it convicts the appellants for the offence under

Section 304B read with Section 34 of the IPC and the

judgment of the Trial Court is restored. Since, during

the course of the appeals, the appellants have been

released on bail, the appellants need not surrender and

their bail bonds stand discharged.

..................J.                    (SANJAY KISHAN KAUL)

..................J.                                     (K.M. JOSEPH) New Delhi, July 23, 2019.  

46