REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2400   OF   2010. (Arising out of SLP (Crl.) No.2660 of 2010)

Sanjay Kumar Jain   …..Appellant

Versus

State of Delhi      …..Respondent

J U D G M E N T  

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal arises out of the judgment and order of the  

High Court of Delhi passed in Criminal Appeal No.63 of 1997  

dated 12.11.2009.

3. The brief facts giving rise to this appeal are as under:

The appellant Sanjay Kumar Jain was married to Smt.  

Anju  Jain  (since  deceased)  on  20th February,  1990.   After  

marriage,  only  both  of  them  started  residing  at  house

No.2803, Gali No.6, Chander Puri, Kailash Nagar, Delhi.  It is  

the case of the prosecution that the deceased was harassed for  

insufficient  dowry  and  the  harassment  continued  till  her  

death.  Admittedly, Smt. Anju Jain died within one year and  

two months of marriage on 10.4.1991.   

4. A  call  was received from one Nanak Chand,  P.W.1  on  

10.4.1991 at 8.50 p.m. at the police control room about the  

murder of the deceased and accordingly DD Entry No.11A was  

recorded.   On  reaching  the  spot,  the  police  found  Sub-

Inspector  Budh  Sain  along  with  police  staff  was  already  

present there.  A bunch of keys was provided by neighbour  

Sadhna PW8 and one  of  the  keys  fitted  the  lock  and after  

opening  the  door,  they  climbed to  the  first  floor  where  the  

appellant  and the  deceased resided.   The  dead body of  the  

deceased was found lying on the floor.   At the scene of the  

crime, broken bangles were found lying on the floor and a hair  

strand was also found on the chest of the deceased.  Rukka  

was  sent  by  making  endorsement  on  the  DD to  the  police  

station and on this basis FIR No.83 of 1991 was registered.  

The  inquest  proceedings  were  conducted  through  the  area  

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Sub-Divisional  Magistrate  and  the  spot  was  photographed  

whereafter the body of the deceased was sent for post-mortem.

5. Dr. L.K. Barua, P.W. 20 who conducted the post-mortem  

found ten ante-mortem injuries on the body of the deceased  

and the cause of the death was opined as asphyxia following  

strangulation  by  rope  like  material  and  the  injuries  were  

sufficient to cause death in the ordinary course of nature.

6. The parents of the deceased Mohan Lal, P.W. 2 (father)  

and Raj  Bala,  P.W.  3  (mother)  were  examined  and in  their  

statements  it  was  clearly  stated  that  the  deceased  was  

continuously being harassed on account of insufficient dowry.  

7. Mohan Lal, P.W.2 in his statement clearly stated that:

“On  the  demand  of  accused,  I  paid  a  sum  of  Rs.15,000/- at one time and Rs.10,000/- another  time  after  about  6/7  months  of  marriage  of  my  daughter with the accused.  The accused demanded  the said amount as he started tent business.”   

He further stated that:

“The accused again started harassing my daughter  and used to compel her to bring money from her  parents.   My daughter  had told  the  said  facts  to  me.”

In the cross-examination, Mohan Lal, P.W.2 also stated  

that:

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“I  had  given  the  amount  of  Rs.10,000/-  and  Rs.15,000/- to the accused out of my saving which  was  lying  in  my  house  and  also  by  taking  some  amount from my friends.”

In the cross-examination, he further stated that:

“My daughter had met me in my house about 1 or  1½ months prior to her death.  Even at that time  she told me that the accused used to harass her  and she was perturbed and she told me that she  was  hard  of  money  and  the  accused  had  again  demanded money  from her.   She  did  not  tell  the  particular  amount  which  the  accused  had  demanded.”

8. Similarly,  Raj  Bala,  P.W.3,  the mother  of  the deceased  

also clearly stated in the statement that:

“Deceased  Anju  was  my  daughter  and  she  was  married with the accused on 20.2.90.  My daughter  used to tell us that accused Sanjay used to harass  her because of insufficient dowry.  She also used to  tell us that accused used to give her a beating and  that  the  accused  used  to  demand  money.   The  accused demanded a sum of  Rs.50,000/-  but my  husband had paid Rs.25,000/- to the accused once  after 14 months of marriage of my daughter.”

9. It is abundantly clear from the statements of P.W.2 and  

P.W.3 that the deceased was harassed on account of dowry  

right from the point of marriage till her death.

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10. The appellant was charged under sections 302 and 304B  

of the Indian Penal Code.  The trial court held that the charge  

under section 302 IPC was established against the accused,  

therefore,  there  was  no  necessity  to  discuss  the  next  

alternative charge under section 304B IPC.  In the impugned  

judgment, the High Court also did not deal with the charge  

under  section  304B  IPC.   The  trial  court  on  the  basis  of  

evidence  and  other  material  on  record  found  the  appellant  

guilty  under  Section  302  IPC.   He  was  convicted  and  was  

awarded life imprisonment.  The conviction was upheld by the  

High  Court.   The  appellant  aggrieved  by  the  impugned  

judgment of the High Court has preferred this appeal

11. We  have  heard  the  learned  counsel  for  the  parties  at  

length.

12. Mr.  U.N.  Bachawat,  learned  senior  counsel,  who  

appeared on behalf of the accused/appellant submitted that in  

this case the prosecution has failed to establish the motive for  

committing the crime.   

13. He submitted that it is well settled law that in a case of  

circumstantial  evidence,  the  circumstances  from  which  the  

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conclusion of guilt is to be drawn should in the first instance  

be fully established and all the facts so established should be  

consistent only with the hypothesis of the guilt of the accused.  

Again the circumstances should be of a conclusive nature and  

they should be such as to exclude every hypothesis but the  

one proposed to be proved. In other words there should be a  

complete chain of evidence so far complete as not to leave any  

reasonable  ground  for  a  conclusion  consistent  with  the  

innocence of the accused and it must be such as to show that  

within human probability the act must have been done by the  

accused.   Mr.  Bachawat  submitted  that  motive  to  commit  

crime acquires greater significance in a case based entirely on  

circumstantial  evidence.   The  prosecution  in  this  case  has  

failed to establish the motive, therefore, the courts have to be  

extremely  careful  in  convicting  an  accused  in  a  case  of  

circumstantial evidence without any motive.

14. Mr.  Bachawat  also  submitted  that  apart  from the  fact  

that  there  is  no  eye  witness  in  this  case,  there  is  also  no  

scientific evidence to connect the accused with the crime. The  

prosecution  failed  to  establish  the  motive  behind  the  

commission of the offence of murder of the deceased.   

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15. This court in the case of C. Chenga Reddy and Others  

v.  State of  Andhra Pradesh  (1996)  10 SCC 193 held  as  

under:

“In a case based on circumstantial  evidence,  the settled law is that the circumstances from which  the  conclusion  of  guilt  is  drawn  should  be  fully  proved and such circumstances must be conclusive  in nature.  Moreover, all  the circumstances should  be complete and there should be no gap left in the  chain  of  evidence.  Further,  the  proved  circumstances  must  be  consistent  only  with  the  hypothesis  of  the guilt  of  the  accused and totally  inconsistent with his innocence. … … …”

16. In the case of G. Parshwanath v.  State of Karnataka  

(2010) 8 SCC 593 this court has observed as under:

“In  deciding  the  sufficiency  of  the  circumstantial  evidence  for  the  purpose  of  conviction,  the  court  has  to  consider  the  total  cumulative effect of all the proved facts, each one of  which reinforces the conclusion of guilt and if the  combined effect of all these facts taken together is  conclusive in establishing the guilt of the accused,  the conviction would be justified even though it may  be  that  one  or  more  of  these  facts  by  itself  or  themselves is/are not decisive. The facts established  should be consistent only with the hypothesis of the  guilt  of  the  accused  and  should  exclude  every  hypothesis except the one sought to be proved.  …  … … There must be a chain of evidence so complete  as  not  to  leave  any  reasonable  ground  for  the  conclusion   consistent  with  the  innocence  of  the  accused  and  must  show  that  in  all  human  probability  the  act  must  have  been  done  by  the  accused,  where  various  links  in  chain  are  in  themselves  complete,  then  the  false  plea  or  false  

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defence  may  be  called  into  aid  only  to  lend  assurance to the court.”  

17. Both the above cases were followed in the latest case in  

Varun Choudhary  v.  State of Rajasthan  JT 2010 (11) SC  

419 para 23.

18. Mr.  Bachawat  further  submitted  that  the  prosecution  

examined  a  neighbour  Sadhna,  P.W.8  who  stated  that  the  

accused and the deceased lived happily.  The relevant part of  

the statement reads as under:

“I know the accused for the last about 12/13 years.  Anju used to come to my house sometimes.  I have  never seen any quarrel between the accused and the  deceased.  I have always seen them living merrily.”

19. Mr.  Bachawat  also  contended  that  according  to  the  

testimony of Mohan Lal, P.W. 2, it is abundantly clear that the  

said demand cannot be termed as dowry demand as the said  

amount was paid for the business purpose.

20. Learned senior counsel for the appellant submitted that  

the accused appellant along with his wife was living on the  

first  floor  of  the  house  No.2803,  Kailash  Nagar,  Delhi  as  a  

tenant.  The house had three doors on the ground floor, out of  

which one door which leads to staircase was in possession of  

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the  appellant.   The  other  two  doors  were  meant  for  the  

landlord which were under the lock and key of the landlord.  

From one door out of these two doors, which were under the  

occupation of the landlord, any one could have an access to  

the first floor i.e. the tenanted premises whereas the case of  

the prosecution was that the door was locked and had to be  

opened by the police after getting report from Nanak Chand,  

P.W.1.

21. Mr. Bachawat referred to the statement of Sadhna, P.W.  

8 in which she stated that there was no lock on the door of the  

staircase.  However, two locks were found affixed on the two  

doors  of  the  ground  floor  of  the  house.   The  door  of  the  

staircase which was in possession of  the accused appellant  

was found bolted from inside.  Sadhna P.W.8, stated as under:

“I had given bunch of keys to brother of Sanjay and  one key out of the said bunch was operative on the  lock fixed on the ground floor door.  Due to which  ground  floor  door  was  opened.   Other  way  also  leading to the first floor of the house.  In fact, the  door of the staircase meant for the accused was in  the street, which was locked and the other way to  the said staircase was in the room at ground floor  which  was  in  possession  of  the  landlord.   So  we  went upstairs after opening the lock of ground floor  as stated by me earlier through the way.  There we  found  Anju  lying  dead.   Several  persons  had  collected there.  The key which was in my bunch  

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and with which the said lock was opened was not of  the said lock.  It was operative by chance.  I had  taken back my said key thereafter from Baldev.”

22. According to Mr. Bachawat there is major contradiction  

as regard to two doors which were under occupation and use  

of the landlord.  As per the site plan, one door, i.e., the door  

from the gallery was bolted from inside whereas, according to  

Sadhna, P.W. 8, both the doors which were in the occupation  

and use of the landlord had locks on them.  Mr. Bachawat  

referred to the following observation of the High Court:

“If the scene of the crime is carefully analysed, it is  obvious that there was no get-away passage for a  third  person  to  have  committed  the  crime  and  disappear  from the  scene.   The  main  access  was  found locked for which the key was provided by the  appellant.  The other access through the staircase  was found bolted from inside.  Thus the appellant  alone  had  an  access  to  the  place  of  occurrence,  which factor itself is sufficient to prove his guilt.”

23. According to the learned counsel  for the appellant,  the  

above  observations  of  the  High  Court  are  contrary  to  the  

evidence on record for the following reasons:-

A. The prosecution has miserably failed to prove as to  which of  the three doors was allegedly opened by  the key provided by the accused:-

i. it is clear from the statement of PW8 that  the door i.e.  the main access meant for  the accused was bolted from inside and  

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was  not  locked  from  outside  therefore  this door cannot be the door which was  opened  with  the  key  provided  by  the  accused as held by the High Court.

ii. It  is further clear from the statement of  Sadhna  PW8,  that  on  10.4.91  she  had  given a bunch of  keys to Baldev,  PW12  i.e.  the brother of accused and one key  out of  said bunch was operative on the  lock fixed on the ground floor door due to  which ground floor door was opened and  they went on the first floor.  Probably this  door  was  the  one  which  lead  to  the  gallery  and  then  to  the  first  floor.  Thereafter  this  witness  had  taken  back  the  said  bunch  from  Baldev,  PW12.  Therefore,  when  this  door  was  already  opened  on  10.4.91  and  there  is  no  evidence that on the same lock was put  back, either the door would have been left  unlocked or would have been locked by  the  police  by  putting  some  other  lock,  giving  no  occasion  for  the  accused  to  apply the alleged key on the lock on 13th.  Thereafter,  this door also cannot be the  one  which  was  opened  with  the  key  provided by the accused.

iii. That the third door was the door of the  room  under  the  lock  and  key  of  the  landlord and from there was no access to  the  first  floor,  therefore,  this  door  also  could not be the door which was opened  with the key provided by the accused.

B. That  from  the  statement  of  Sadhna  PW8  it  is  abundantly  clear  that  Sadhna  PW8  also  had  an  access to  the  house in  as much as the  lock was  opened by a key provided by Sadhna, which worked  by chance.  This fact goes to show that the lock was  

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such  that  it  could  be  opened  by  any  key  and  therefore anybody could have a free access to the  house after opening the lock with the same key.

C. That from the statement of Sadhna PW8 it is also  evident that the landlord also had the access to the  other two rooms, which were locked from outside.  Rather the lock on the two doors were that of the  landlord and he was in possession.  In view of the  above stated facts the landlord was a very material  witness and his non-examination creates a serious  dent  in  the  prosecution  case.   There  is  no  explanation or attempt on behalf of prosecution to  show as to why the landlord was not produced and  examined.

D. As per site plan Ex. PW22/B the room on the first  floor, where the deceased was found dead, had two  windows  one  bolted  from  inside  and  the  other  window i.e. W2 was open and it opened on Chajja,  therefore giving an easy access to a stranger.  The  important  aspect  has  not  been  noted  and  considered by the ld. trial court and the High Court.

E. It is alleged that on 13th the appellant opened the  lock after taking out the key from his pocket.  If the  accused had the key with him it would have been  found in his personal search which must have been  taken  at  the  time  of  his  arrest  in  view  of  the  provision  contained  in  section  51  Cr.P.C.  which  preceded the journey to  his  house for  recovery of  wicket and string, a fact evident from the statement  of Ravi Dutt PW 22 quoted hereinbelow:

“After  recording  disclosure  statement  of  accused, I arrested him in his case.  It is  correct that after arresting accused I took  him to the house of accused for search.”

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24. Mr. Bachawat submitted that the injuries found on the  

body of the appellant as per the MLC (Ex.P.W. 14/A) have not  

been explained.

25. He  further  stated  that  no  question  was  put  to  the  

accused to explain the alleged injuries on his person as to how  

and when and the manner in which the allege injuries were  

caused.  As per the settled law of this court the question for  

statement under section 313 Cr.P.C. must be framed in such a  

way so as to enable the accused to know what he is to explain.  

He referred to the judgment of  this court in  Ajay Singh v.  

State of Maharashtra 2007 (12) SCC 341 wherein the Court  

has held as under:

“The question must be framed in such a way as to  enable the accused to know what he is to explain,  what are the circumstances which are against him  and for which an explanation is needed.  The whole  object of the section is to afford the accused a fair  and proper opportunity of explaining circumstances  which  appear  against  him  and  that  the  question  must be fair and must be couched in a form which  an  ignorant  or  illiterate  person  will  be  able  to  appreciate and understand.  A conviction based on  the accused’s failure to explain what he was never  asked to explain is bad in law.  The whole object of  enacting  section  313  of  the  Code  was  that  the  attention  of  the  accused  should  be  drawn to  the  specific points in the charge and in the evidence on  which the prosecution claims that the case is made  

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out against the accused so that he may be able to  give such explanation as he desires to give.

…..He  must  be  question  separately  about  each  material  substance  which  is  intended  to  be  used  against  him.   The  questioning  must  be  fair  and  couched in a form which an ignorant  or  illiterate  person will  be able to appreciate and understand.  Even when an accused is not illiterate, his mind is  apt to be perturbed when he is facing a charge of  murder.   Fairness,  therefore,  requires  that  each  material  circumstances  should  be  put  simultaneously and separately in a way that even  an  illiterate  mind,  or  one  which  is  perturbed  or  confused, can readily appreciate and understand.”

26. Mr. Bachawat submitted that the only questions put to  

the accused under section 313 Cr.P.C. are as under:

Q.8 It is further in evidence against you that your  two hairs of head Ex.P8 were also seized and  taken into possession vide memo Ex.PW 4/E  and  you  were  also  sent  for  medical  examinations vide ML CEX PW 14/A, what you  have to say?

Ans.8  It is correct that two hair from my head were  plucked by police.  Rest ‘I’ do not know.

Note:  It  is  of  significant  relevant to note that Q.8  was put to the accused under section 313 Cr.P.C. to  connect  the  accused with the alleged crime.  DNA  report as regards the hair found from the Chest of  the deceased and hair taken from the scalp of the  accused was called for.

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27. Mr.  Bachawat  contended  that  The  High  Court  in  its  

impugned judgment as regards this DNA report has observed  

as under:

“The DNA report had not been filed in this behalf.  In our considered view this fact itself cannot belie  the story of the prosecution though the availability  of  the  DNA  report  would  have  strengthened  the  prosecution story.”

28. Thereafter,  Mr.  Bachawat  further  contended  that  the  

High Court in the above situation ought to have necessarily  

inferred and presumed that the seized hair from the chest of  

the deceased was not of the accused as such the accused is  

not the author of the crime.

29. Mr.  Bachawat referred to the following question put to  

the accused under the statement recorded under section 313  

Cr.P.C.:

Q.23  It is further in evidence against you that on  13.4.1991 you were medically examined by the  doctor at SDN Hospital,  Shahdara, vide MLC  No.1276 Ex. PW14/A, what you have to say.

Ans.23 I was medically examined.

30. Mr.  Bachawat  also  submitted  that  the  as  per  MLC  

following injuries were found on the appellant:  

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1. Scratch mark over Rt. Knee and Lt. knee joint  (Brown coloured).

2. One small  bruise  (blackish red)  over  exterior  aspect of Lt. Wrist Joint.

3. One  scratch  mark  (pin  point)  reddish  over  redial margin of Rt. Thumb.

4. Linear  2-3  pinkish  5-6  cms  below  Rt.  inperscapular region.

5. Small  irregular  1-2  pinkish  bruise  over  Lt.  Scapela region.

31. The learned senior counsel for the appellants referred to  

the statement of Dr. L.K. Barua, P.W.20 who conducted post-

mortem examination on the body of the deceased and found  

the following injuries:   

1. Multiple prominent abrasions were present on  front  and  sides  of  the  neck,  extending  form  sub-mental  are  to  the  supra-external  notch.  The  abrasions  were  also  present  and  both  mendibular areas.  The abrasions in front and  on  the  right  side  showed  four  prominent  ligatures marks almost parallel to each other  and wee placed horizontally.   The margins of  these abrasions were seen fusing at their outer  ends on the right side of the neck.  The linear  abrasions were also seen on the left side of the  neck  but  were  comparatively  faint  in  comparison to right side.  The width of ligature  abrasions varied from .06 c.m. to 1.2 c.m.  The  areas  in  between  the  individual  marks  also  showed multiple small abrasions and bruising  with evidence of grazing.  On the back side of  

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the neck a narrow interrupted abrasion mark  could be seen running horizontally.

2. One small bruising was seen on left side front  of  upper part  of  chest  just below the middle  part of collar bones of size 3 c.m. x 2.5 c.m.

3. One abrasion on right side front of the chest  just below the medial third of right collar bone  of size 3 c.m. x 1.8 c.m.

4. One abrasion of  size  1 c.m.  x 0.5 c.m.  were  seen on the right shoulder stop.

5. Small abrasion size 0.5 c.m. x 0.2 c.m. were  seen on the left shoulder top.

6. Small  abrasion size 2 c.m.  x 1 c.m.  on the  medial aspect of right arm.

7. Abrasion size 2 c.m. x 1.5 c.m. on the medial  aspect of right elbow.

8. Small  linear  abrasion  were  seen  o  the  left  forearm on its dorsal aspect of size 0.5 c.m. x  0.2  c.m.   It  was crecenestic  in  side  and are  possibly nail marks.

9. Abrasion size 3.2 c.m. x 3 c.m. were seen in  front and side of the nose.

10. Abrasion size 3 c.m. x 2 c.m. were seen on the  left cheek prominent.

32. Mr. Bachawat further submitted that the recovery of the  

ornaments is to be discarded as a matter of law.  The recovery  

of ornaments is not admissible in evidence as the same is not  

effected under section 27 of the Evidence Act inasmuch as the  

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disclosure statement was recorded before the arrest was made,  

a fact evident from the following extract of the testimony of  

Ravi Dutt PW22:

“After recording disclosure statement of accused, I  arrested him in this case.   It  is correct that after  arresting  accused  I  took  him  to  the  house  of  accused for search.”

33. Learned senior counsel for the appellant contended that  

the  High  Court  erred  in  not  noticing  these  facts.   He  also  

submitted  that  there  are  material  contradictions  as  to  the  

ornaments which the deceased used to wear and which were  

missing from her body.  According to Mohan Lal, P.W. 2, the  

deceased  used  to  wear  golden  ear-rings,  golden  ring,  silver  

pajeb and silver mangalsutra.  When he saw the deadbody of  

the  deceased,  he  saw that  mangalsutra,  ring  and  ear-rings  

were  missing  from  her  body.   Similarly,  Raj  Bala  P.W.3  

submitted that her daughter used to wear ear-rings of gold,  

ring of gold, nose pin of gold and silver necklace and the same  

were missing from her body.   

34. According to Constable Anil  Kumar,  P.W.9,  one ring of  

rolled  gold,  one  pair  of  pajeb  and four  toe-rings  (bichhuas)  

which the deceased was wearing was removed from her body.  

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He  produced  the  above  stated  articles  before  Ravi  Dutt  

Inspector,  who had converted  the  broken bangles  and ring,  

pajeb  and  toe-rings  into  two  separate  pulandas  and  sealed  

with  the  seal  of  GSS  and  took  the  possession  of  the  said  

articles vide memo Ex.P.W.9/A.  

35. Ramesh Kumar, P.W. 25 stated that sixth pulanda was  

containing one gold ring, one pair of pajeb but Jagdish Chand  

PW4 and Jukmal Chand Jain, PW5 deposed that the said gold  

ring was recovered from a pit  near the railway track at the  

instance of appellant.

36. According to Mr. Bachawat the string and cricket wicket  

(stump)  are  planted.   Had  these  articles  been  there  the  

investigating officer who had reached the spot on the 10th itself  

would  have  definitely  seized  the  same.   The  place  was  

accessible inasmuch as they had not locked and sealed the  

premises  so  that  nobody  could  have  an access  to  the  said  

office.  There is no explanation on behalf of the prosecution for  

this illegality.

37. Mr. Bachawat submitted that had these articles such as  

cricket wicket (stump) and string (narrah)  been used in the  

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alleged crime there ought to have been the finger prints of the  

assailant and they must have been blood stained in view of the  

injuries suffered by the deceased.  In this regard, the opinion  

of the doctor is worth noting.

Dr. L.K. Barua, P.W. 20 deposed as under:

“I did not find any mark of blood or parts of skin in  the string.   I did suggest the police that the nurrah  Ex.16 be also sent to CFSL for opinion.

I  am not  competent to give an opinion which my  CFSL render in this particular situation.  I did not  indicate in my opinion whether there was skin or  blood mark on this nurrah.  I did not put any mark  of identification on this stump Ex.p.7.  On naked  eye, I did not find mark of blood or skin and only  CFSL could say about this.  I do not want to give  opinion as to what could be the role of stamp in the  present situation.

Not  sending  these  articles  to  CFSL  despite  the  opinion  of  the  doctor  is  telling  circumstance  in  favour of the accused and these articles cannot be  attributed  to  the  accused  for  being  used  in  the  alleged crime.

That  the  string  (narrah)  alleged  used  for  strangulating  the  deceased  was  eight  and  a  half  inches  in  length  (as  per  Ex.PW4/C)  making  it  impossible  to  commit  the  offence  in  the  manner  alleged by the prosecution.”

38. We find  some merits  in  the  statements  of  the  learned  

senior  counsel  for  the  appellant  that  in  a  case  of  

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circumstantial  evidence  all  circumstances  must  lead  to  the  

conclusion that the accused appellant was the only one who  

had committed the crime and none else.   

39. On  following  aspects  there  is  no  consistency  in  the  

prosecution version:

1) The  door  leading  to  the  house  of  the  

deceased had free access and possibility  

of any other person entering the house of  

the deceased cannot be ruled out.

2) The  landlord  had  clear  access  to  the  

house  of  the  deceased  and  non-

examination  of  the  landlord  creates  

serious doubt in the prosecution version.

3) Injuries  found  on  the  body  of  the  

accused/appellant  remained  

unexplained.  No question was put to the  

accused to explain the alleged injuries on  

the person.

4) There is a material contradiction as to the  

ornaments  which  the  deceased  was  

wearing and were missing from her body.

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5) The string and wicket  (stump) were not  

seized by the Investigating Officer on the  

same day  as   they  were  lying  near  the  

dead body.

6) The string  and the  wicket  (stump)  were  

not  sent  to  Central  Forensic  Science  

Laboratory (CFSL) despite the opinion of  

the  doctor  telling  the  circumstances  in  

favour of the accused for  being used in  

the alleged crime.

7) The  string  (narrah)  allegedly  used  for  

strangulating  the  deceased  was  8  ½  

inches in length and making it impossible  

to  commit  the  offence  in  the  manner  

alleged by the prosecution.

40. In  view  of  the  aforementioned  infirmities  in  the  

prosecution’s version the conviction under Section 302 of the  

Indian Penal Code cannot be sustained.   Consequently,  the  

impugned judgment of the High Court and the judgment of the  

Additional Sessions Judge are accordingly set aside and the  

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appellant is acquitted as far as his conviction under Section  

302 of the Indian Penal Code is concerned.

41. Now the question arises is whether the appellant can be  

convicted under Section 304B of the Indian Penal Code?  In  

the instant case the appellant was also charged under Section  

304B, but, in view of his conviction under Section 302 of the  

Indian Penal  Code  the  trial  court  did  not  proceed with the  

charge under Section 304B of the Indian Penal Code.  Section  

304B reads as under:

“304B. Dowry death

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

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

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

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42. In  the  instant  case  the  marriage  took  place  on  

20.02.1990 and Anju died on 10.4.1991 because of ten  ante   

mortem bodily injuries which were found on her body at the  

time  of  her  death.   Anju  died  within  seven  years  of  her  

marriage.   In  the  instant  case  the  father  of  the  deceased  

Mohan Lal, P.W.2  and the mother of the deceased Raja Bala,  

P.W.3 were examined.  They have categorically stated that the  

deceased was subjected to consistent cruelty and harassment  

by her husband in connection with demand for dowry.  PW2  

deposed  that  on  demand  from the  appellant,  he  was  given  

Rs.15,000/-  on  one  occasion  and  later  gave  Rs.10,000/-.  

According  to  him,  there  was  consistent  harassment  on  

account of demand for dowry all through.  P.W.3 had stated  

that the appellant used to harass and beat her daughter in  

connection  with  the demand of  dowry.   In  this  view of  the  

matter, the appellant’s continuously harassing and beating the  

deceased  in  connection  with  demand  of  dowry  clearly  falls  

within the four corners of the Section 304B of the Indian Penal  

Code.

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43. Section 304B of the Indian Penal Code was inserted by  

the Dowry Prohibition (Amendment) Act, 1986 with a view to  

combating the increasing menace of dowry death.  It provides  

that where the death of a woman is caused by any burns or  

bodily  injury  or  occurs  otherwise  than  under  the  normal  

circumstances  within  seven years  of  her  marriage  and it  is  

shown that soon before her death she was subjected to cruelty  

or harassment by her husband or any relative of her husband  

for or in connection with any demand for dowry shall be guilty  

under  Section  304B  of  the  Indian  Penal  Code.   It  is  most  

unfortunate  that  instances  of  dowry  death  are  rapidly  

increasing.   

44. This dowry system is a big slur and curse on our society,  

democracy and the country.  It is incomprehensible how such  

unfortunate and condemnable instances of dowry deaths are  

frequently occurring in our society.  All efforts must be made  

to combat and curb the increasing menace of dowry death.

45. This court in  Ashok Kumar v.   State of Rajasthan  

(1991) 1 SCC 166 has laid down as under:

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“… … …Bride burning is  a shame of  our society.  Poor  never  resort  to  it.  Rich  do  not  need  it.  Obviously  because  it  is  basically  an  economic  problem of a class which suffers both from ego and  complex. Unfortunately, the high price rise and ever  increasing  cost  of  living  coupled  with  enormous  growth  of  consumer  goods  effacing  difference  between luxury  and essential  goods  appear  to  be  luring even the new generation of youth, of the best  service, to be as much part of the dowry menace as  their parents and the resultant evils flowing out of  it. How to curb and control this evil? Dowry killing  is  a  crime  of  its  own  kind  where  elimination  of  daughter-in-law becomes immediate necessity if she  or her parents are no more able to satiate the greed  and  avarice  of  her  husband  and  their  family  members, to make the boy available, once again in  the marriage market.  Eliminate  it  and much may  stand resolved automatically. … … …”

46. The  legislature  was  seriously  concerned  about  this  

unfortunate  reality  of  our  society  and  to  curb  and  combat  

increasing  menace  of  dowry  deaths  with  a  firm  hand  the  

Dowry Prohibition Act,  1961 was enacted with the following  

objects and reasons:

“The object of this bill is to prohibit the evil practice  of  giving  and  taking  of  dowry.  This  question  has  been engaging the attention of the government for  some time past, and one of the methods by which  this problem, which is essentially a social one, was  sought  to  be  tackled  was  by  the  conferment  of  improved property rights on women by the Hindu  Succession Act, 1956. It is, however, felt that a law  which  makes  the  practice  punishable  and  at  the  same  time  ensures  that  any  dowry,  if  given  does  

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ensure for the benefit of the wife will go a long way  to educating public opinion and to the eradication of  this evil. There has also been a persistent demand  for  such  a  law  both  in  and  outside  parliament.  Hence, the present Bill.  It,  however, takes care to  exclude presents in the form of clothes, ornaments,  etc.,  which  are  customary  at  marriages,  provided  the value thereof does not exceed Rs. 2000. Such a  provision appears to be necessary to make the law  workable.”

47. In  The State of Punjab v.  Iqbal Singh and Others  

(1991) 3 SCC 1 this Court observed that crimes are generally  

committed in the privacy of residential homes and in secrecy  

and it is difficult to get independent direct evidence in such  

cases.   That  is  why  the  legislature  has,  by  introducing  

Sections  113A  and  113B  in  the  Evidence  Act,  tried  to  

strengthen  the  prosecution  hands  by  permitting  a  

presumption  to  be  raised  if  certain  foundational  facts  are  

established that the unfortunate event has taken place within  

seven years of the marriage.

48. On proper analysis of Section 304B of the Indian Penal  

Code  and Section  113B of  the  Evidence  Act,  it  shows that  

there must be material to show that soon before her death the  

victim  was  subjected  to  cruelty  or  harassment.  The  

prosecution is under an obligation to rule out any possibility  

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of  natural  or  accidental  death.   Where  the  ingredients  of  

Section  304B  of  the  Indian  Penal  Code  are  satisfied,  the  

section would apply.  If death is unnatural, either homicidal or  

suicidal, it would be death which can be said to have taken  

place  in  unnatural  circumstances  and  the  provisions  of  

Section 304B would be applicable.  

49. The death, otherwise than under normal circumstances,  

under Section 304B of the Indian Penal Code would mean the  

death not in usual course either natural or accidental death.  

Section 304B creates a substantive offence.  The necessity for  

insertion of the two provisions has been amply enumerated by  

the  Law  Commission  of  India  in  its  21st Report,  dated  

10.08.1988  on  ‘Dowry  Deaths  and  Law  Reform’.   This  has  

been  primarily  done  because  of  the  pre-existing  law  in  

securing evidence to prove dowry related deaths.

50. In order to bring home the guilty under Section 304B of  

Indian Penal Code the following ingredients are necessary:

1) The  victim  was  subjected  to  cruelty  or  harassment by her husband or his relatives.

2) Such  cruelty  or  harassment  was  for,  or  in  connection with any demand for dowry.

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3) Such  cruelty  or  harassment  was  done  within  seven years of the marriage.

51. Evidence  on  record  of  this  case  clearly  lead  to  the  

conclusion that all these three ingredients are available in full  

measure in this case.  The deceased was subjected to cruelty  

and harassment by her husband, the appellant herein and the  

harassment was in connection with the demand of dowry.

52. In the instant case the victim (deceased) died within one  

year and two months of the marriage.  On proper analysis of  

the entire evidence on record it is abundantly proved that the  

appellant  was clearly  guilty  of  committing an offence under  

Section 304B of the Indian Penal Code.   

53. Consequently,  we  deem it  appropriate  to  set  aside  the  

conviction of  the appellant  under Section 302 of the Indian  

Penal Code but in the facts and circumstances of this case we  

proceed to convict  the appellant  under  Section 304B of  the  

Indian  Penal  Code  and  sentence  him  to  9  years  rigorous  

imprisonment  and  fine  of  Rs.10,000/-.   In  case  of  non-

payment  of  fine,  the  accused  would  further  undergo  

imprisonment for two months.  

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54. As a result, this appeal is partly allowed and disposed of  

accordingly.

….…….……………………..J.                                                      (Dalveer Bhandari)

……….……………………..J.                                                      (H.L. Gokhale)

New Delhi; December 16, 2010  

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