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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1406     OF     2008   

Mustafa Shahadal Shaikh                    .... Appellant(s)

Versus

The State of Maharashtra                   .... Respondent(s)

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) This appeal is directed against the judgment and order  

dated 28.11.2007 passed by the High Court of Judicature of  

Bombay in Criminal Appeal No. 891 of 1990 whereby the High  

Court confirmed the order of conviction and sentence dated  

07.12.1990 passed by the 4th Additional Sessions Judge at  

Kolhapur against the appellant herein.

2) The facts and circumstances giving rise to this appeal are  

as under :

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(a) On 26.01.1989, Mustafa Shahadal Shaikh (A1) - the  

appellant-accused married one Hasina Mustafa Shaikh (since  

deceased) at Tembalalwadi, Dist. Kolhapur, Maharashtra.  

After marriage, Hasina was staying with the appellant in her  

matrimonial home at Ujalawadi Taluka Karveer, Dist.  

Kolhapur, Maharashtra.  On 23.08.1989, when she was at her  

matrimonial home, she committed suicide by consuming  

poison.  She was taken to CPR Hospital at Kolhapur where the  

doctor declared that she was brought dead.  The appellant and  

his parents informed about her death to her family members.  

(b) On the same day, Abdul Rahim Shaikh (PW-4) the grand-

father of the deceased lodged an F.I.R. at Karveer Police  

Station, Kohlapur alleging torture and harassment faced by  

the deceased on account of demand for dowry.  On the basis of  

the said report, C.P. No. 186/89 (Exh.20) was registered  

against the appellant and his family members for the offence  

punishable under Sections 306, 304-B and 498-A read with  

Section 34 of  the Indian Penal Code, 1860 (hereinafter  

referred to as “IPC”).   

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(c) The case was committed to the Court of Sessions and  

numbered as Sessions Case No. 7 of 1990 and A-1 Husband,  

A-2 Father, A-3 Mother, A-4 sister-in-law were arrayed as  

accused nos. 1 to 4.  During the trial, prosecution examined  

12 witnesses and marked several documents.  By order dated  

07.12.1990, the 4th Additional Sessions Judge, while  

acquitting the sister (A-4) of the appellant herein, convicted  

the appellant and his parents for the offence punishable under  

Sections 498-A and 304-B read with Section 34 of IPC and  

sentenced them to suffer RI for 1 year along with a fine of  

Rs.1,000/-, in default, to further under RI for 6 months and RI  

for  7 years respectively.   

(d) Being aggrieved, the appellant and his parents preferred  

Criminal Appeal No. 891 of 1990 before the High Court of  

Bombay.  During the pendency of the appeal before the High  

Court, the parents (A-2 and A-3) of the appellant expired and  

the appeal against them stood abated.  By the impugned  

judgment dated 28.11.2007, the High Court dismissed the  

appeal while confirming the conviction and sentence imposed  

by the trial Court against the appellant.

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(e) Aggrieved by the said judgment, the appellant has  

preferred this appeal by way of special leave before this Court.

3) Heard Mr. Sudhanshu S. Choudhari, learned counsel for  

the appellant-accused and Mr. Sachin J. Patil, learned counsel  

for the respondent-State.

Discussion:

4) The only point for consideration in this appeal is whether  

the prosecution has made out a case in respect of the charges  

leveled against the appellant relating to Section 304B and  

498A IPC.   

5) In support of the above charges, the prosecution heavily  

relied on the complaint (Exh. 20), the evidence of PWs 4, 6, 7  

and 9 and other relevant circumstance, viz., the death  

occurred on 23.08.1989 i.e. within a period of 7 months from  

the date of marriage i.e. 26.01.1989.  

6) Before considering the prosecution case as well as the  

defence pleaded, it is desirable to extract the relevant  

provisions of Section 304B which relates to Dowry death.

“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  

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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 of life”

The above provision was inserted by Act 43 of 1986 and came  

into force w.e.f. 19.11.1986.  There is no dispute about the  

applicability of the above provision since the marriage and the  

death occurred in 1989.  In order to convict an accused for  

offence punishable under Section 304B of IPC, the following  

essentials must be satisfied:

i) the death of a woman must have been caused by burns or  

bodily injury or otherwise than under normal circumstances;  

ii) such death must have occurred within seven years of her  

marriage;

iii) soon before her death, the woman must have been  

subjected to cruelty or harassment by her husband or any  

relatives of her husband;

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iv) such cruelty or harassment must be for, or in connection  

with, demand for dowry.

When the above ingredients are established by reliable and  

acceptable evidence, such death shall be called dowry death  

and such husband or his relatives shall be deemed to have  

caused her death.  If the above-mentioned ingredients attract  

in view of the special provision, the court shall presume and it  

shall record such fact as proved unless and until it is  

disproved by the accused.  However, it is open to the accused  

to adduce such evidence for disproving such compulsory  

presumption as the burden is unmistakably on him to do so  

and he can discharge such burden by getting an answer  

through cross-examination of prosecution witnesses or by  

adducing evidence on the defence side.  

7) Section 113B of the Indian Evidence Act, 1872 speaks  

about presumption as to dowry death which reads as under:-

“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.  

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

As stated earlier, the prosecution under Section 304B of IPC  

cannot escape from the burden of proof that the harassment  

or cruelty was related to the demand for dowry and such was  

caused “soon before her death”.  In view of the explanation to  

the said section, the word “dowry”  has to be understood as  

defined in Section 2 of the Dowry Prohibition Act, 1961 which  

reads as under:-  

2. Definition of" dowry". In this Act," dowry" means any  property or valuable security given or agreed to be given  either directly or indirectly-  

(a) by one party to a marriage to the other party to the  marriage; or  

(b) by the parents of either party to a marriage or by a other  person, to either party to the marriage or to any other  person; at or before or after the marriage us consideration  for the marriage of the said parties, but does not include  dower or mahr in the case of persons to whom the Muslim  Personal Law (Shariat) applies.”

8) To attract the provisions of Section 304B, 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 or  

harassment “for, or in connection with the demand for dowry”.  

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The expression “soon before her death” used in Section 304B  

IPC and Section 113B of the Evidence Act is present with the  

idea of proximity test.  In fact, learned counsel appearing for  

the appellant submitted that there is no proximity for the  

alleged demand of dowry and harassment.  With regard to the  

said claim, we shall advert to the same while considering the  

evidence led in by the prosecution.  Though the language used  

“soon before her death”, no definite period has been enacted  

and the expression “soon before her death”  has not been  

defined in both the enactments.  Accordingly, the  

determination of the period which can come within the term  

“soon before her death”  is to be determined by the courts,  

depending upon the facts and circumstances of each case.  

However, the said expression would normally imply that the  

interval should not be much between the concerned cruelty or  

harassment and the death in question.  In other words, there  

must be existence of a proximate and live link between the  

effect of cruelty based on dowry demand and the concerned  

death.  If the alleged incident of cruelty is remote in time and  

has become stale enough not to disturb the mental  

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equilibrium of the woman concerned, it would be of no  

consequence.  These principles have been reiterated in  

Kaliyaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828  

and Yashoda vs. State of Madhya Pradesh, (2004) 3 SCC  

98.    

9) With these principles in mind, let us analyze the evidence  

led in by the prosecution.  Abdul Rahim Shaikh, PW-4, aged  

about 65 years at the time of the incident deposed that the  

deceased - Hasina was his grand daughter.  Hasina was  

daughter of his daughter Chandbi and her husband’s name is  

Dilawar Khan.  According to him, after her marriage on  

26.01.1989, she went to reside in the house of the appellant-

accused at Ujalawadi.  She stayed there for 5 days and  

returned to their house and stayed for 15 days.  Thereafter,  

she again went to her in-laws house.  At the time of Bakrid,  

Hasina, her husband Mustafa (A1) - the appellant accused and  

Hasina’s brother Ayub had gone to Panaji.  After 4 days, Ayub  

and Mustafa returned from Panaji and she stayed there for 15  

days.  Hasina narrated all her sufferings to her mother  

Chandbi (PW-7) daughter of PW-4 as to how the accused were  

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torturing, beating and abusing her for the demand of  

Rs.5,000/- and a gold ring and a chain.  When the appellant  

and his mother visited his house, he explained to them that  

they had already spent Rs.6,000/- for marriage and he was  

ready to get employment for the appellant.  He further deposed  

that after 5-6 days, he had gone to the house of Abubakhar  

Nimshikari PW-10 –  the mediator to the said marriage and  

informed him about the cruelty and harassment meted out to  

the deceased in order to fulfill the demand of dowry.  He also  

deposed that when he had gone to the house of the accused  

about 2-4 days prior to her death, she took him to a room and  

narrated how the accused began to torture her more for their  

demand for money and gold chain and she also asked him to  

do something with regard to the same.  He also explained that  

4 days thereafter, father-in-law and mother-in-law of Hasina  

came to their house and told him that Hasina had consumed  

poison and she had been admitted in CPR Hospital.  They also  

showed the bottle to him.  Thereafter, PW-4 and his wife  

rushed to CPR Hospital.  When they reached the Hospital, the  

Doctor informed that she was brought dead.  Nobody was  

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present near the dead body from the house of the accused.  

Thereafter, he went to Kharvi P.S and lodged a report which is  

Exh. 20.  In fact, while recording his evidence, the trial Judge  

has noted that PW-4 –  grandfather of the deceased became  

over emotional and began to weep in the witness box.  His  

evidence, who is an elderly person and affectionate to the  

deceased – Hasina, clearly prove the torture, harassment, and  

demand of dowry at the hands of the accused including the  

appellant.                         

10) The next witness examined on the side of the prosecution  

is Dilawarkhan PW-6 - father of the deceased.  In his evidence,  

he also explained that his daughter told him that her in-laws  

used to torture her by beating and keeping her starved.  He  

subsequently mentioned that on 18.08.1989, he himself and  

his wife had visited the house of his father-in-law, namely,  

PW-4 at Tembalwadi and, thereafter, they had gone to the  

house of accused at Ujalawadi.  There itself Hasina explained  

the harassment and torture meted out to her.  She started  

weeping and told PW-6 that her husband –  appellant herein  

tortured her more.  On the next day, when the appellant and  

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his mother came to their house, PW-6 told them that he would  

get employment for the appellant accused and he should not  

harass her daughter.  However, he did not listen to him and  

left his house.  The evidence of PW-6 –  the father of the  

deceased also proves the torture and harassment for the  

settlement for the payment of money and, in fact, this was  

narrated on 18.08.1989 i.e. just 5 days prior to the date of her  

death.  It very clearly satisfies the expression “soon before her  

death”.  

11) The next witness relied on by the prosecution is Chandbi  

PW-7 the mother of the deceased.  She also narrated similar to  

PWs 4 and 6.  From her evidence also, it is clear that the  

accused tortured and harassed her daughter for money.

12) The other witness relied on by the prosecution is  

Ayubkhan (PW-9) the brother of the deceased.  Like PWs 4, 6  

and 7, he also highlighted that his sister used to inform that  

her husband, sister-in-law, father-in-law and mother-in-law  

tortured her on many occasions for the payment of money and  

gold ornaments.  A perusal of his entire evidence also  

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corroborates with the similar claim made by PWs 4, 6 and 7.    

13) Though learned counsel for the appellant contended that  

all the witnesses relied on by the prosecution are close  

relatives and no outsider has been examined to prove their  

case, we are of the view that in a case of this nature i.e.  

matrimonial death, we cannot expect outsiders to come and  

depose what had happened in the family of the deceased. We  

have already highlighted that the death occurred within a  

period of 7 months from the date of the marriage and she died  

at her matrimonial home.  It has also come in evidence from  

the prosecution witnesses that on the date of the death, the  

appellant and his parents alone were in the house.  In such  

circumstances, we reject the contention raised by the counsel  

for the appellant.  

14) Apart from the above witnesses, Dr. Ramdas - the doctor  

who conducted the post mortem was examined as PW-5.  In  

the post mortem report, he opined that death of Hasina was  

due to poisoning.  He further explained that poison was  

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petroleum hydrocarbons.  He also deposed that the said  

poison was sufficient to cause death of a human being.  

15) From these materials, we are satisfied that the  

prosecution has clearly established the offence under Section  

304B IPC and the same has been rightly accepted by the trial  

Court and confirmed by the High Court.

16) Coming to Section 498A which speaks about cruelty by  

husband or relatives of husband.  It is useful to extract the  

said provision:-

“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- (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.”      

The object of inserting the above section by Act 46 of 1983  

which came into force w.e.f. 25.12.1983 was with a view to  

punish the husband or his relatives who harass or torture the  

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wife to coerce her or her relatives to satisfy unlawful demands  

of dowry.  The prosecution evidence, which we have already  

discussed, clearly prove the ingredients of cruelty and no  

further elaboration is required, on the other hand, we fully  

agree with the conclusion arrived at by the trial Court as  

affirmed by the High Court.  

17) Finally, faint argument was advanced by the counsel for  

the appellant for reduction of the sentence of appellant-

accused considering his age, viz., 23 years at the time of  

occurrence.  It is also pleaded that he is the only earning  

member in his family and prayed for leniency.  These aspects  

were duly considered by the trial court while awarding  

punishment.  Further Section 304B itself mandates that in the  

case of conviction in terms of sub-section (1) the imprisonment  

shall not be less than 7 years but which may extend to  

imprisonment for life.  In view of the fact that the prosecution  

has established its case beyond reasonable doubt by placing  

acceptable evidence and of the fact that minimum sentence of  

seven years has been prescribed, it cannot be possible to  

award sentence less than 7 years.  These aspects were also  

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considered by the High Court.  Accordingly, we reject the  

similar request made by the counsel for the appellant.   

18) In the light of what is stated above, we fully concur with  

the conclusion arrived at by the trial Court and the High  

Court.  Consequently, the appeal fails and accordingly  

dismissed.  

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (RANJAN GOGOI)  

NEW DELHI; SEPTEMBER 14, 2012.

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