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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1712     OF     2009   

Pathan Hussain Basha … Appellant

Versus

State of A.P. … Respondent

WITH

CRIMINAL     APPEAL     NO.     1706     OF     2009   

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J.   

1. Accused Pathan Hussain Basha, was married to Pathan  

Haseena Begum (now deceased) on 23rd June, 2002 at Guntur.  

It was an arranged marriage. At the time of marriage, it was  

promised that a dowry of Rs. 25,000/-, besides other formalities,  

would be paid by the side of the wife to the husband.   Out of this  

amount, a sum of Rs. 15,000/- was paid at that time and it was  

promised that the balance dowry of Rs. 10,000/- would be paid

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in the month of October, 2002, upon which the marriage was  

performed.  

2. The father of the bride could not pay the balance amount  

within time, because he lacked the resources. The accused  

Pathan Hussain Basha, his father Pathan Khadar Basha, and  

mother Pathan Nazeer Abi forced her to get the balance amount  

of dowry.   Despite such pressure, she was not able to get that  

money from her family.  It is the case of the prosecution that for  

non-payment of dowry, the accused persons harassed the  

deceased and subjected her to cruelty.   They even refused to  

send her to her parental house.  This was informed by the  

deceased to various persons, including her relatives and elders.  

She was unable to bear the cruelty to which she was subjected,  

by the accused persons.  On 15th February, 2003, at about 11  

a.m., the deceased committed suicide by hanging herself in the  

house of the accused.     

3. When Pathan Basheerunnisa, LW3 returned from her work,  

the accused sent her out giving her money to bring the soaps  

upon which she went out and when she came back, she found  

the accused absent and the bride hanging in the house.  

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Subsequently, LW-3 Pathan Basheerunnisa sent her grandson  

Pathan Inayatullah Khan, LW-4 to the house of the parents of the  

deceased to inform them about the incident.   When the parents  

of the deceased came to the house of the accused and found the  

deceased hanging from the beam with a saree,  they untied her  

and took her to the Government General Hospital, Guntur hoping  

that the deceased may be alive.  However, upon medical  

examination by the doctor, she was declared brought dead.    

4. The father of the deceased Pathan Yasin Khan, LW-1 and  

her mother Pathan Shamshad Begum,  LW-2 were present at  

that time.  LW-1, lodged the report, which was registered by Sri  

K. Srinivasarao, LW-16, the Sub-Inspector of Police.   The FIR  

was registered under Section 304B and Section 498A of the  

Indian Penal Code, 1860 (for short the “IPC”).   Thereafter,  

investigation was conducted by one Shri P. Devadass, LW-17.  

He inspected the site from where he recovered and seized the  

saree that had been used for hanging.  This was done in the  

presence of LW-10 and LW-11, Shaik Ibrahim and Mohd.  

Ghouse, respectively.   Thereupon, the body was sent for post-

mortem examination through Constable P. Venkateswara Reddy,  

LW-15.   LW-17, P. Devdass, also took photographs of the scene.  

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LW-13, Dr. M. Madhusudana Reddy conducted autopsy over the  

body of the deceased and prepared post-mortem certificate giving  

the cause of death as asphyxia, as a result of hanging.

5. On 16th February, 2003, at about 5 p.m., Investigating  

Officer arrested all the three accused persons. They faced the  

trial and were convicted by learned Sixth Additional Munsif  

Magistrate, Guntur for committing an offence under Sections  

498A and 304B IPC.

6. They were committed to the Court of Sessions, Guntur  

Division, Guntur for such an offence.   They faced the trial and  

the learned Sessions Judge vide its judgment dated 4th October,  

2004 found them guilty of the said offences and punished them  

as follows:-

“Hence A.1 to A.3 are sentenced to undergo  R.I. for THREE YEARS and further  sentenced to pay a fine of Rs. 1,000/- each  (total fine amount Rs. 3,000/-) offence  punishable u/s. 498-A IPC. I.D. of the fine  amount of Rs. 1000/- to undergo SI for 9  months. And further A.1 to A.3 are  sentenced to undergo imprisonment for  LIFE for the offence u/s. 304-B IPC. Both  the sentences shall run concurrently. The  undergone remand period of A.1 to A.3 shall  be set off u/s. 428 Cr.P.C. M.O.1 shall be  destroyed after expiry of appeal time. The  

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unmarked property if any shall be destroyed  after expiry of appeal time.”

7. The judgment dated 4th October, 2004 passed by the  

learned Trial Court was challenged in appeal before the High  

Court.  The High Court of Andhra Pradesh, vide its judgment  

dated 26th October, 2006, while allowing the appeal in part,  

convicted accused Nos.1 and 2 for the aforementioned offences,  

however, acquitted accused No. 3, namely, Pathan Khadar  

Basha.  The sentence awarded by the Trial Court was confirmed.  

This gave rise to filing of the present appeals.      

8. First and the foremost, we must consider what is the  

evidence led by the prosecution to bring home the guilt of  

accused. Accused were charged with offences under Sections  

498A and 304B of the IPC. The FIR in the present case was  

lodged by LW-1, who is the father of the deceased.   According to  

this witness, on 23rd January, 2002, the marriage of his daughter  

was solemnised with accused Pathan Hussain Basha and he had  

accepted to give Rs. 25,000/- in marriage.   He had given only Rs.  

15,000/- and had agreed to pay Rs. 10,000/-, after four months.  

This witness has further specifically stated that the said accused  

treated his daughter in a proper manner for about two months.  

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In the marriage, he had also given a gold chain, a double bed, an  

iron safe and other items.   He had called his son-in-law, accused  

No. 1, to his house, as per custom, at that point the accused  

demanded a ceiling fan. A ceiling fan was lying with the witness  

and he gave that to his son in law, however, he protested the  

same on the ground that the old fan is not acceptable to him and  

he would like to have a new fan, which was bought for Rs. 650/-  

by the witness and given to his son-in-law.   When he again  

invited his son-in-law and the mother-in-law of his daughter,  

even then he had gifted some presents to them. The accused  

asked for Rs. 1,000/- with a ring for the deceased. The witness  

could pay only Rs. 500/- upon which the accused refused to take  

the deceased to the matrimonial home and went away.   Later on,  

the accused came to fetch deceased.  Subsequently, the mother-

in-law of the deceased, again, demanded the balance dowry  

amount of Rs. 10,000/-, which he could not pay.   His daughter,  

after the Ramzan festival, had informed him that the accused  

persons were harassing her and were even beating and abusing  

her.   All three accused used to beat her for the remaining  

amount of dowry.   On 15th February, 2003, a boy had come to  

him and told him that his daughter had died by hanging herself,  

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whereupon he went to the house of the accused and found that  

his daughter was hanged to a wooden beam with a saree and she  

was dead.   The saree was removed, she was taken to the hospital  

where she was reported to have ‘brought dead’.   The statement of  

this witness i.e. LW-1 is corroborated by LW-3 and LW-7.

9. It is stated by LW-3 that she knew all the accused persons  

as she was residing in the house of the accused and the  

deceased.   According to this witness also, in the beginning they  

were happy, however after some time, she used to hear some  

quarrel between the deceased and the accused persons. Accused  

No. 2, Pathan Nazeer Abi had given her some amount and asked  

her to go and bring the soaps.  After bringing the soaps, she went  

to the house of the accused persons and found that the accused  

was absent and the deceased was hanging on one side of the  

room.   After seeing this, she raised cries and people came to the  

scene.   LW-4, Pathan Inayatullah Khan, the grandson of LW-3,  

went to the house of the parents of the deceased and informed  

them about the unfortunate incident.   

10. LW-7 stated on oath that he was present at the time of  

giving of dowry to the accused by the family of the deceased.   He  

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confirmed the fact that Rs. 15,000/- was given at the time of  

marriage and Rs. 10,000/- was to be given within some time,  

which the father of the deceased failed to provide.   According to  

him,  the accused persons used to harass the deceased primarily  

for non-payment of the amount of dowry, as a result of which,  

she was forced to commit suicide.

11. In fact, there is no dispute to the fact that the deceased died  

of hanging.  Dr. M. Madhusudana Reddy, LW-13 who was the  

Associate Professor in Forensic Medicine at Guntur Medical  

College, performed the post-mortem over the body of the  

deceased.   In the medical report, LW13, he noticed “Oblique  

ligature mark of 17 x 2.5 cm present over front and left sides of  

neck” as well as noticed “Abrasion 1.5 x 1 cm present over lower  

part of middle of chin.”  Injuries were found to be antemortem in  

nature, and the cause of death was stated to be asphyxia, as a  

result of hanging  

12. LW-14 is a witness to the seizure of the body and she  

noticed injuries on the body of the deceased.   From the above  

evidence, it is clear that the dowry demands were being raised by  

the accused persons persistently from the family of the deceased  

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and for that they even harassed the deceased, by beating and  

abusing her.   She had informed her parents of the ill-treatment  

and the cruelty inflicted on her for non-giving of dowry.

13. The period  intervening  between  the marriage  and  the  

death of the  deceased  is  very  small.   They  were  married in  

the  year 2002  and  she  committed  suicide  by  hanging  on 15th  

February, 2003.   The witnesses, including LW-1 have stated that  

for the first few months they were happy, but thereafter, there  

were quarrels between the accused and the deceased. Accused  

Pathan Hussain Basha, when he had gone to the parental house  

of the deceased, demanded different items like fan, ring and Rs.  

1,000/- in cash, and the balance of the agreed dowry amount.  

Since, these demands were not satisfied instantaneously, he even  

left the deceased at her parental house. At this stage, it will be  

appropriate for us to examine as to what are the ingredients of an  

offence punishable under Section 304B of the IPC.   In the case of  

Biswajit Halder alias Babu Halder and Others v. State of W.B.  

[(2008) 1 SCC 202], the Court stated the ingredients of this  

provision as follows:-

“10. The basic ingredients to attract the provisions  of Section 304-B are as follows:

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

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

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

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

11. Alongside insertion of Section 304-B in IPC,  the legislature also introduced Section 113-B of  the Evidence Act, which lays down when the  question as to whether a person has committed  the dowry death of a woman and it is shown that  soon before her death such woman had 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.

12. Explanation appended to Section 113-B  lays down that:

“For the purpose of this section, ‘dowry  death’  shall have the same meaning as in  Section 304-B of Indian Penal Code.”

13. If Section 304-B IPC is read together with  Section 113-B of the Evidence Act, a  comprehensive picture emerges that if a married  woman dies in unnatural circumstances at her  matrimonial home within 7 years from her  marriage and there are allegations of cruelty or  harassment upon such married woman for or in  connection with demand of dowry by the husband  or relatives of the husband, the case would  squarely come under “dowry death”  and there  

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shall be a presumption against the husband and  the relatives.”

14. Besides examining the ingredients of the provision, it would  

also be necessary for us to examine the meaning and connotation  

of the expressions ‘dowry death’, ‘soon before her death’  and ‘in  

connection with, any demand for dowry’ as appearing in the said  

section. Amongst others, lapse of time between the date of  

marriage and the date of death is also a relevant consideration  

for the Court while examining whether the essential ingredients  

of the provision are satisfied or not in a given case. In the case of  

Ashok Kumar v. State of Haryana [(2010) 12 SCC 350], this Court  

explained these terms in some elucidation and the effect of the  

deeming fiction appearing in the section, as follows:-

“11. The appellant was charged with an offence  under Section 304-B of the Code. This penal  section clearly spells out the basic ingredients  as well as the matters which are required to be  construed strictly and with significance to the  cases where death is caused by burns, bodily  injury or the death occurring otherwise than  under normal circumstances, in any manner,  within seven years of a marriage. It is the first  criteria which the prosecution must prove.  Secondly, that “soon before her death” she had  been subjected to cruelty or harassment by the  husband or any of the relatives of the husband  for, or in connection with, any demand for  dowry then such a death shall be called “dowry  

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death”  and the husband or the relative, as the  case may be, will be deemed to have caused  such a death. The Explanation to this section  requires that the expression “dowry”  shall have  the same meaning as in Section 2 of the Act.

12. The definition of “dowry” under Section 2 of  the Act 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 any other person, to  either party to the marriage or to any  other person, at or before or any time after the  marriage in connection with 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.

*   * * Explanation II.—The expression  

‘valuable security’  has the same  meaning as in Section 30 of the Penal  Code (45 of 1860).”

13. From the above definition it is clear that,  “dowry” means any property or valuable security  given or agreed to be given either directly or  indirectly by one party to another, by parents of  either party to each other or any other person at,  before, or at any time after the marriage and in  connection with the marriage of the said parties  but does not include dower or mahr under the  Muslim Personal Law. All the expressions used  under this section are of a very wide magnitude.

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14. The expressions “or any time after marriage”  and “in connection with the marriage of the said  parties” were introduced by the amending Act 63  of 1984 and Act 43 of 1986 with effect from 2-10- 1985 and 19-11-1986 respectively. These  amendments appear to have been made with the  intention to cover all demands at the time, before  and even after the marriage so far they were in  connection with the marriage of the said parties.  This clearly shows the intent of the legislature  that these expressions are of wide meaning and  scope. The expression “in connection with the  marriage”  cannot be given a restricted or a  narrower meaning. The expression “in connection  with the marriage” even in common parlance and  on its plain language has to be understood  generally. The object being that everything,  which is offending at any time i.e. at, before or  after the marriage, would be covered under this  definition, but the demand of dowry has to be “in  connection with the marriage”  and not so  customary that it would not attract, on the face  of it, the provisions of this section.

15. At this stage, it will be appropriate to refer to  certain examples showing what has and has not  been treated by the courts as “dowry”. This  Court, in Ran Singh v. State of Haryana, (2008) 4  SCC 700 held that the payments which are  customary payments, for example, given at the  time of birth of a child or other ceremonies as are  prevalent in the society or families to the  marriage, would not be covered under the  expression “dowry”.

16.  Again, in Satvir Singh v. State of Punjab,  (2001)8 SCC 633 this Court held that the word  “dowry” should be any property or valuable given  or agreed to be given in connection with the  marriage. The customary payments in connection  

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with birth of a child or other ceremonies are not  covered within the ambit of the word “dowry”.

17. This Court, in Madhu Sudan Malhotra v.  Kishore Chand Bhandari, 1988 Supp. SCC 424  held that furnishing of a list of ornaments and  other household articles such as refrigerator,  furniture and electrical appliances, etc. to the  parents or guardians of the bride, at the time of  settlement of the marriage, prima facie amounts  to demand of dowry within the meaning of  Section 2 of the Act. The definition of “dowry” is  not restricted to agreement or demand for  payment of dowry before and at the time of  marriage but even include subsequent demands,  was the dictum of this Court in State of A.P. v.  Raj Gopal Asawa, (2004)4 SCC 470.  

18. The courts have also taken the view that  where the husband had demanded a specific  sum from his father-in-law and upon not being  given, harassed and tortured the wife and after  some days she died, such cases would clearly fall  within the definition of “dowry”  under the Act.  Section 4 of the Act is the penal section and  demanding a “dowry”, as defined under Section 2  of the Act, is punishable under this section. As  already noticed, we need not deliberate on this  aspect, as the accused before us has neither  been charged nor punished for that offence. We  have examined the provisions of Section 2 of the  Act in a very limited sphere to deal with the  contentions raised in regard to the applicability  of the provisions of Section 304-B of the Code.

19. We have already referred to the provisions of  Section 304-B of the Code and the most  significant expression used in the section is  “soon before her death”. In our view, the  expression “soon before her death”  cannot be  

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given a restricted or a narrower meaning. They  must be understood in their plain language and  with reference to their meaning in common  parlance. These are the provisions relating to  human behaviour and, therefore, cannot be given  such a narrower meaning, which would defeat  the very purpose of the provisions of the Act. Of  course, these are penal provisions and must  receive strict construction. But, even the rule of  strict construction requires that the provisions  have to be read in conjunction with other  relevant provisions and scheme of the Act.  Further, the interpretation given should be one  which would avoid absurd results on the one  hand and would further the object and cause of  the law so enacted on the other.

20. We are of the considered view that the  concept of reasonable time is the best criteria to  be applied for appreciation and examination of  such cases. This Court in Tarsem Singh v. State  of Punjab, (2008) 16 SCC 155 held that the  legislative object in providing such a radius of  time by employing the words “soon before her  death”  is to emphasise the idea that her death  should, in all probabilities, has been the  aftermath of such cruelty or harassment. In  other words, there should be a reasonable, if not  direct, nexus between her death and the dowry- related cruelty or harassment inflicted on her.

21. Similar view was expressed by this Court in  Yashoda v. State of M.P, (2004)3 SCC 98 where  this Court stated that determination of the period  would depend on the facts and circumstances of  a given case. However, the expression would  normally imply that there has to be reasonable  time gap between t  he cruelty inflicted and the  death in question. If this is so, the legislature in  its wisdom would have specified any period  which would attract the provisions of this  

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section. However, there must be existence of  proximate link between the acts of cruelty along  with the demand of dowry and the death of the  victim. For want of any specific period, the  concept of reasonable period would be  applicable. Thus, the cruelty, harassment and  demand of dowry should not be so ancient,  whereafter, the couple and the family members  have lived happily and that it would result in  abuse of the said protection. Such demand or  harassment may not strictly and squarely fall  within the scope of these provisions unless  definite evidence was led to show to the contrary.  These matters, of course, will have to be  examined on the facts and circumstances of a  given case.

22. The cruelty and harassment by the husband  or any relative could be directly relatable to or in  connection with, any demand for dowry. The  expression “demand for dowry”  will have to be  construed ejusdem generis to the word  immediately preceding this expression. Similarly,  “in connection with the marriage”  is an  expression which has to be given a wider  connotation. It is of some significance that these  expressions should be given appropriate meaning  to avoid undue harassment or advantage to  either of the parties. These are penal provisions  but ultimately these are the social legislations,  intended to control offences relating to the  society as a whole. Dowry is something which  existed in our country for a considerable time  and the legislature in its wisdom considered it  appropriate to enact the law relating to dowry  prohibition so as to ensure that any party to the  marriage is not harassed or treated with cruelty  for satisfaction of demands in consideration and  for subsistence of the marriage.

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23. The Court cannot ignore one of the cardinal  principles of criminal jurisprudence that a  suspect in the Indian law is entitled to the  protection of Article 20 of the Constitution of  India as well as has a presumption of innocence  in his favour. In other words, the rule of law  requires a person to be innocent till proved  guilty. The concept of deeming fiction is hardly  applicable to the criminal jurisprudence. In  contradistinction to this aspect, the legislature  has applied the concept of deeming fiction to the  provisions of Section 304-B. Where other  ingredients of Section 304-B are satisfied, in that  event, the husband or all relatives shall be  deemed to have caused her death. In other  words, the offence shall be deemed to have been  committed by fiction of law. Once the prosecution  proves its case with regard to the basic  ingredients of Section 304-B, the Court will  presume by deemed fiction of law that the  husband or the relatives complained of, has  caused her death. Such a presumption can be  drawn by the Court keeping in view the evidence  produced by the prosecution in support of the  substantive charge under Section 304-B of the  Code.

15. Applying these principles to the facts of the present case, it  

is clear that the ingredients of Section 304B read with Section  

498A IPC are completely satisfied in the present case.   By a  

deeming fiction in law, the onus shifts on to the accused to prove  

as to how the deceased died.   It is for the accused to show that  

the death of the deceased did not result from any cruelty or  

demand of dowry by the accused persons.    The accused did not  

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care to explain as to how the death of his wife occurred. Denial  

cannot be treated to be the discharge of onus.   Onus has to be  

discharged by leading proper and cogent evidence.   It was  

expected of the accused to explain as to how and why his wife  

died, as well as his conduct immediately prior and subsequent to  

the death of the deceased. Maintaining silence cannot be equated  

to discharge of onus by the accused.  In the present case, the  

prosecution by reliable and cogent evidence has established the  

guilt of the accused.   There being no rebuttal thereto, there is no  

occasion to interfere in the judgments of the courts under appeal.

16. The High Court acquitted Pathan Khadar Basha, the father-

in-law of the deceased, as there was no direct evidence against  

him.   His acquittal has not been challenged by the State before  

us, thus, we are not called upon to discuss this aspect of the  

matter.

17. Accused Pathan Hussain Basha and Pathan Nazeer Abi  

have rightly been found guilty of the offence by the courts.  

While we see no reason to differ with the concurrent findings  

recorded by the trial court and the High Court, we do see some  

substance in the argument raised on behalf of the appellants that  

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keeping in view the prosecution evidence, the attendant  

circumstances, the age of the accused and the fact that they have  

already being in jail for a considerable period, the Court may take  

lenient view as far as the quantum of sentence is concerned.  

The offences having been proved against the accused and keeping  

in view the attendant circumstances, we are of the considered  

view that ends of justice would be met, if the punishment  

awarded to the appellants is reduced.

18. Consequently, we award ten years Rigorous Imprisonment  

to the appellants.   The appeals are partially accepted to the  

extent afore-indicated.

………...….…………......................J.                                           (Swatanter Kumar)

………...….…………......................J.                                          (Fakkir Mohamed Ibrahim Kalifulla)

New Delhi, August 16, 2012  

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