SC: Prosecution to prove that a ‘dowry death’ has occurred


Court :
Supreme Court of India

Brief :
The bench comprising of Justices Vikramajit Sen and Kurian Joseph set aside the judgment passed by the Punjab and Haryana High Court and laid down certain rules of interpretation in dowry deaths.

Citation :
Sher Singh vs. State of Haryana

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1592 OF 2011

 

 REPORTABLE

SHER SINGH @ PARTAPA                                  …..APPELLANT

Versus

STATE OF HARYANA                                          …..RESPONDENT

 

J U D G M E N T

 

VIKRAMAJIT SEN, J.

1

 

1 This Appeal has been filed against  the Judgment dated 16.12.2010 

passed by the learned Single Judge of the High Court of Punjab and Haryana 

dismissing  the  appeal  and  affirming the  conviction and  sentence  passed 

against the Appellant by the Trial Court under Sections 304B and 498A of 

the Indian Penal Code.   The marriage between the deceased, Harjinder Kaur 

and  the  accused-Appellant  took  place  on  22.2.1997.   The  case  of  the 

prosecution is that two months prior to her death on one of her visits to her 

parental home, the deceased informed her two brothers of cruelty connected 

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with  dowry  demands  meted  out  to  her  by  her  husband  and  his  family 

members.    They,  thereafter,  conveyed  this  information  to  their  uncle-

Complainant, Angrej Singh viz. that the accused and his family have been 

harassing  her  with  a  demand  for  a  motorcycle  and  a  fridge.   The 

Complainant  advised  her  to  return  to  her  matrimonial  house  with  the 

assurance  that  a  motorcycle  and  a  fridge  would  be  arranged  upon  the 

marriage of her brothers.   On 7.2.1998, one Rajwant Singh informed the 

Complainant that the deceased had committed suicide by consuming some 

poisonous  substance  at  her  matrimonial  house  in  village  Danoli.   The 

Complainant, along with the brothers of the deceased and other members of 

the  village,  rushed  to  the  matrimonial  house  of  the  deceased  and  after 

confirming her death, lodged an  FIR on the next day i.e., on 8.2.1998.

2 In all, four accused persons, namely, Appellant/Sher Singh (husband), 

Devinder  Singh  (brother-in-law),  Jarnail  Singh  (father-in-law),  and 

Sukhvinder Kaur (mother-in-law) were tried by the learned Sessions Judge, 

Karnal under Sections 304B and 498A IPC.  After considering the material 

on record the learned Sessions  Judge had convicted all  the accused and 

sentenced them to undergo rigorous imprisonment  for seven years  under 

Section 304B; and to undergo rigorous imprisonment for three years and to 

pay a fine of Rs.5,000/- and, in default of payment of such fine, to further 

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undergo rigorous imprisonment for a period of six months under Section 

498A.  

3 Two separate appeals were filed before the High Court of Punjab and 

Haryana at Chandigarh, one by Devinder Singh (brother-in-law) along with 

Jarnail Singh (father-in-law) and another by the Appellant herein.  The High 

Court  allowed the appeal filed by Devinder  Singh and Jarnail  Singh and 

acquitted them with an observation that the prosecution has failed to prove 

any torture committed by them and, therefore, Sections 304B and 498A IPC 

were not attracted.  Quite palpably, unlike the Trial Court, the High Court 

construed even Section 304B  requires the prosecution to ‘prove’  beyond 

reasonable doubt in contradistinction to ‘show’ the participative role of the 

husband’s relatives as a prelude to the deemed guilt kicking  in.  It was also 

observed by the High Court that in such cases there is a tendency of roping 

in all the family members disregarding the fact that they resided separately. 

However,  the Appeal filed by the Appellant was dismissed holding that it 

was for the accused/Appellant to explain that the unnatural death of his wife 

Harjinder Kaur was not due to cruelty meted out to her in the matrimonial 

home and that he has failed in doing so. 

3

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4 Learned Counsel appearing on behalf of the Appellant has submitted 

that the conviction of the Appellant is liable to be set aside as there is a 

specific  finding  of  the  learned  Sessions  Court  that  there  is  no  positive 

evidence  on record to the  effect  that  the  accused  persons  ever  raised  a 

demand for a motorcycle and a fridge and that both the Courts below have 

failed to fully appreciate the inconsistencies in the depositions of PWs 4 and 

7, which could not be relied upon as both were interested witnesses.   It is 

further  submitted  that  the  High  Court,  on  same  set  of  pleadings  and 

evidence, was not justified in acquitting the other accused persons, namely, 

Devinder  Singh  (brother-in-law)  and  Jarnail  Singh  (father-in-law),  while 

convicting the Appellant.  In support of this argument, learned Counsel for 

the Appellant has relied on the decision of this Court in Narayanamurthy v. 

State  of  Karnataka  (2008)  16  SCC 512.   It  is  also  contended  that  the 

prosecution has not established that soon before her death, the deceased had 

been subjected to any cruelty or harassment in connection with any demand 

for dowry.   Support has been drawn from Durga Prasad v. State of Madhya 

Pradesh (2010) 9 SCC 73.

4

5 Out  the outset  we  shall  briefly analyse  the cauldron of  legislation 

passed by Parliament on the subject which we are presently engaged with. 

Confronted with the pestilential proliferation of incidents of married women 

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being put to death because of avaricious and insatiable dowry demands, and/ 

or of brides being driven to take their own lives because of cruelty meted out 

to them by their husband and his family also because of dowry expectations, 

Parliament enacted the Dowry Prohibition Act, 1961 (for short ‘the Dowry 

Act’) in an endeavour to eradicate the social evil  of giving and taking of 

dowry.   Section 2 thereof  defines ‘dowry’  as  including any property or 

valuable security given or agreed to be given by one party to the other party 

around the time of marriage.   Section 3 makes it punishable to give or take 

or abet the giving or taking of dowry; the punishment for the offence being 

not less than five years, and with a fine of Rs.15,000/- or the amount of the 

value  of  such  dowry,  whichever  is  more.    Sub-section  (2)   thereof 

understandably makes an exclusion in respect of presents given at the time 

of marriage provided they are of  a customary nature and the value thereof is 

not excessive having regard to the financial status of the concerned parties. 

This Section also mandates the drawing up of a list of presents received in 

contemplation of marriage.   Section 4 makes it punishable even to demand 

dowry and if any agreement is entered into for the giving or taking of dowry, 

Section 5 makes  it  void.    Section 6 clarifies  that  where  any dowry is 

received by any person other than the woman in connection with whose 

marriage it  is given, it  must  be transferred to her within three months of 

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marriage or receipt of the dowry.  The passing of this statute, however, did 

not  eradicate  the  scourge  of  dowry  demands,  resulting  in  Parliament 

devoting its attention yet again to what was required to free society of this 

pernicious practice.  

6

6 As is evident from a perusal of the Statement of Objects and Reasons 

to the Criminal  Law (Second Amendment)  Act,  1983 [Act  46 of 1983], 

Parliament continued to be concerned with the increasing number of dowry 

deaths.    By this legislation Chapter XX A was introduced into the Indian 

Penal Code (IPC) containing the solitary Section 498A,  in order to “deal 

effectively not only with cases of dowry deaths, but also cases of cruelty to 

married women by their  in-laws.”   Conspicuously, this Section does not 

employ  the  word  ‘dowry’  at  all.    In  essence,  the  amendment  makes 

matrimonial cruelty to the wife punishable with imprisonment for a term 

which may extend to three years together with fine.   The Explanation to 

Section 498A defines ‘cruelty’ in Clause (a) to the Explanation to first mean 

wilful conduct as is likely to drive the woman to commit suicide or to cause 

grave injury or danger to her life.  Since there is no allusion to dowry it 

converts  cruelty,  which  would  ordinarily  entitle  the  wife  to  seek  a 

dissolution of her marriage, into a criminal act.   Parliament rightly restricted 

the  subject  offence  to  only  cruelty  perpetuated  on  women  since  their 

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emancipation, in meaningful terms, largely remains a mirage.   One can only 

optimistically hope that  the increasing  literacy amongst  females,  as  also 

amendments in Hindu Law granting a daughter a share in her father’s estate, 

will sooner than later put an end to this malaise.   As we are not concerned in 

this  Appeal  with  events  falling  within  the  ambit  of  Clause  (a)  of  the 

Explanation, we shall  desist  from recording any further reflection on the 

sweep and intent and possible incongruities contained therein as such an 

exercise  on our part  would avoidably add to the bludgeoning burden of 

obiter dicta, which invariably causes confusion.   Secondly, broadly stated, 

Clause (b) to the Explanation of Section 498A IPC,  postulates harassment 

meted out to the woman with a view to coercing her or her relatives to meet 

any unlawful demand for any property or valuable security.  Although this 

Clause does not employ the word ‘dowry’, it is apparent that its object is to 

combat this odious societal excrescence.   Act 46 of 1983 simultaneously 

incorporated  changes  in Section  174(3)  of  the  Cr.P.C.  pertaining  to the 

suicide or death of a woman within seven years of her marriage; it mandated 

the examination by the nearest Civil Surgeon of the body of the unfortunate 

woman.   In addition thereto, Section 113A was introduced into the Indian 

Evidence Act,  1872.   [Although not relevant to the present context,  it  is 

poignant  that  even  though  Section  113  was  under  its  active  scrutiny, 

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Parliament  did not  think it  necessary to excise  the  existing and entirely 

irrelevant Section 113 which speaks of the cession of ‘British’ territory to 

any ‘Native State’].   Section 113A,  introduced into the Evidence Act  by 

Clause 7 of Act 46 of 1983, specifies that when the question is whether the 

commission of suicide by a woman had been abetted by her husband or his 

relative  and it is shown that she has committed suicide within a period of 

seven years from the date of her  marriage and that her husband or such 

relative of her husband had subjected her to cruelty, the Court may presume, 

having regard to all  the other circumstances of the case, that such suicide 

had been abetted by her husband or by relatives of her husband.

7 Within the short span of three years Parliament realized the necessity 

to make the law more stringent and effective by introducing amendments to 

the Dowry Act,  as well  as the IPC by enacting Act 43 of 1986.   These 

amendments,  inter  alia,  made the offences dealt  with in the Dowry Act 

cognizable for certain purposes and also made them non-bailable as well as 

non-compoundable.   By the introduction of Section 8A of the Dowry Act 

the burden of proof was reversed in respect of prosecutions for taking or 

abetting the taking or demanding of any dowry by making the concerned 

person responsible for proving that he had not committed any such offence. 

Contemporaneously Section 304B was inserted into the IPC.    The newly 

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added Section stipulates that 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.  Sub-section (2) makes this offence punishable 

with imprisonment for a term which shall not be less than seven years and 

which may extend to imprisonment  for life.    Section 113B was further 

incorporated into the Evidence Act;  [yet again ignoring the futility, if not 

ignominy, of retaining the withered appendage in the form of the existing 

Section 113, and further perpetuating an anachronism.]     Be that as may be, 

the newly introduced Section 113B states that when the question is whether 

a person has committed the death of a married woman and it is shown that 

soon before her death such woman had been subjected by such person to 

cruelty or  harassment  or  in connection with any demand for  dowry,  the 

Court  shall  presume  that  such  person  has  caused  dowry  death.   The 

Explanation harks back to the simultaneously added Section 304B of the 

IPC for  the definition of  dowry death,  clarifying thereby that the person 

alluded to in this Section is her husband or any relative of her husband.   It is 

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noteworthy that whilst Section 113A of the Evidence Act reposes discretion 

in the Court to draw a presumption so far as the husband’s abetment in his 

wife’s  suicide,  Parliament  has  mandated  the  Court  to  draw at  least  an 

adverse inference under Section 113B in the event of a dowry death.   It 

seems to us that where a wife is driven to the extreme step of suicide it  

would be reasonable to assume an active role of her husband, rather than 

leaving it to the discretion of the Court.

8 The legal regime pertaining to the death of  a woman within seven 

years of her marriage thus has numerous features, inter alia: 

(i) the meaning of “dowry” is as placed in Section 2 of the Dowry 

Prohibition Act.

10

(ii) dowry death stands defined for all purposes in Section 304B of 

the IPC. It does exclude death in normal circumstances. 

(iii)  If death is a result of burns or bodily injury, or otherwise than 

under normal circumstances, and it occurs within seven years of 

the marriage and, it is ‘shown’ in contradistinction to ‘proved’ 

that  soon  before  her  death  she  was  subjected  to  cruelty  or 

harassment by her husband or his relatives,  and the cruelty or 

harassment is connected with a demand of dowry, it shall be a 

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dowry death, and the husband or  relative shall  be  deemed to 

have caused her death.

(iv) To  borrow from Preventive  Detention  jurisprudence  –  there 

must be a live link between the cruelty emanating from a dowry 

demand and the death of a young married woman, as is sought 

to be indicated by the words “soon before her death”, to bring 

Section 304B into operation;  the live link will  obviously be 

broken if the said cruelty does not persist  in proximity to the 

untimely and abnormal death.   It cannot be confined in terms 

of time; the query of this Court in the context of condonation of 

delay  in  filing  an  appeal  –  why  not  minutes  and  second  – 

remains apposite.

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(v) the  deceased  woman’s  body  has  to  be  forwarded  for 

examination by the nearest Civil Surgeon.

(vi)   once the elements itemised in (iii) above are shown to exist the 

husband or relative   shall be deemed to have caused her death.

(vii)   the consequences and ramifications of this ‘deeming’ will be 

that the prosecution does not have to prove anything more, and 

it is on the husband or his concerned relative that the burden of 

proof shifts as adumbrated in Section 113B, which finds place 

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in Chapter VII of the Evidence Act.    This Chapter first covers 

‘burden of proof’ and then “presumption”, both being constant 

bed-fellows.    In  the  present  context  the  deeming  or 

presumption of responsibility of death are synonymous. 

 

9 Death can be accidental,  suicidal or homicidal.    The first  type is a 

tragedy and no criminal complexion is conjured up, unless  statutorily so 

devised, as in Section 304A; but even there the culpable act is that of the 

person actually causing the death.  It seems to us that Section 304B of the 

IPC,  inasmuch as  it  also takes  within its  contemplation “the  death of  a 

woman  …..  otherwise  than under  normal  circumstances”,  endeavours  to 

cover murders masquerading as accidents.    Justifiably, the suicidal death of 

a married woman who was meted out with cruelty by her husband, where 

her demise occurred within seven years of marriage in connection with a 

dowry demand should lead to prosecution and punishment under Sections 

304B and/or 306 of the IPC.    However, if the perfidious harassment and 

cruelty by the husband is conclusively proved by him to have had no causal 

connection  with  his  cruel  behaviour  based  on  a  dowry  demand,  these 

provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007) 

11 SCC 205, although some reservation may remain regarding the reach of 

Section 306.  

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10 It is already empirically evident that the prosecution, ubiquitously and 

in dereliction of duty, in the case of an abnormal death if  a young bride 

confines its charges to Section 304B because the obligation to provide proof 

becomes least burdensome for it; this is the significance that attaches to a 

deeming provision.  But, in any death other than in normal circumstances,  

we see no justification for not citing either Section 302 or Section 306, as 

the circumstances of the case call for.   Otherwise, the death would logically 

fall in the category of an accidental one.   It is not sufficient to include only 

Section 498A as the punishment is relatively light.    Homicidal death is 

chargeable and punishable under Sections 302 and 304B if circumstances 

prevail triggering these provisions.   This Court has repeatedly reiterated this 

position, including in State of Punjab v. Iqbal Singh, 1991 (3) SCC 1 and 

quite recently in Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7) 

SCC 256.

13

11 Some  doubts  remain  on  the  aspect  of  presumption  of  innocence, 

deemed culpability and burden of proof.  One of our Learned Brothers has in 

Pathan Hussain Basha v. State of Andhra Pradesh (2012) 8 SCC 594, after 

extensively extracting from the previous judgment  authored by him (but 

without indicating so) expressed two opinions – (a) that Article 20 of the 

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Constitution of India contains a presumption of  innocence in favour of a 

suspect and, (b) that the concept of deeming fiction is hardly applicable to 

criminal jurisprudence.   The logical consequence of both these conclusions 

would lead to the striking down of Section 8A of the Dowry Act, Section 

113B of the Evidence Act, and possibly Section 304B of the IPC, but neither 

decision does so.  So far as the first  conclusion is concerned, suffice it to 

reproduce Article 20 of the Constitution: 

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20.  Protection in respect of conviction for offences.-(1) No

person shall be convicted of any offence except for violation of

a law in force at the time of the commission of the act charged

as an offence, nor be subjected to a penalty greater than that

which might have been inflicted under the law in force at the

time of the commission of the offence.

(2) No person shall  be prosecuted and punished for the same

offence more than once.

(3) No person accused of any offence shall be compelled to be a

witness against himself.

 

Even though there may not be any Constitutional protection to the concept 

of presumption of innocence, this is so deeply ingrained in all Common Law 

legal systems so as to render it  ineradicable even in India,  such that the 

departure or  deviation from this presumption demands statutory sanction. 

This is what the trilogy of dowry legislation has endeavoured to ordain.

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12 In our opinion, it is beyond cavil that where the same word is used in 

a section and/or in sundry segments of a statute, it should be attributed the 

same meaning, unless there are compelling reasons to do otherwise.  The 

obverse is where different words are employed in close proximity, or in the 

same section, or  in the same enactment,  the assumption must  be that the 

legislature  intended  them  to  depict  disparate  situations,  and  delineate 

dissimilar and diverse ramifications.  Ergo, ordinarily Parliament could not 

have proposed to ordain that the prosecution should “prove” the existence of 

a vital  sequence of  facts,  despite having employed the word “shown” in 

Section 304B.  The question is whether these two words can be construed as 

synonymous.   It  seems to us that if  the prosecution is required to prove, 

which always means beyond reasonable doubt, that a dowry death has been 

committed, there is a risk that the purpose postulated in the provision may be 

reduced to a cipher.  This method of statutory interpretation has consistently 

been disapproved and deprecated except in exceptional instances where the 

syntax permits reading down or reading up of some words of the subject 

provisions.

15

13 In Section 113A of the Evidence Act Parliament has, in the case of  a 

wife’s suicide, “presumed” the guilt of the husband and the members of his 

family.   Significantly, in Section 113B which pointedly refers to dowry 

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deaths, Parliament has again employed the word “presume”.    However, in 

substantially similar circumstances, in the event of a wife’s unnatural death, 

Parliament has in Section 304B “deemed” the guilt of the husband and the 

members of his family.   The Concise Oxford Dictionary defines the word 

“presume” as:  supposed to be true, take for  granted; whereas “deem” as: 

regard, consider; and whereas “show” as: point out and prove.  The Black’s 

Law Dictionary (5

th

16

 Edition) defines the word “show” as- to make apparent 

or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge, 

believe, condemn, determine, construed as if true; “presume” as- to believe 

or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of 

law,  statutory or  judicial,  by which finding of  a basic  fact  gives rise  to 

existence of presumed fact,  until  presumption is rebutted.”   The Concise 

Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct 

definition of burden of proof which is worthy of reproduction:

“Burden of Proof: The duty of a party to litigation to prove a

fact or facts in issue.  Generally the burden of proof falls upon

the party who substantially asserts the truth of a particular fact

(the  prosecution  or  the  plaintiff).   A  distinction  is  drawn

between the  persuasive (or  legal) burden, which is carried by

the party who as a matter of law will lose the case if he fails to 

prove the fact in issue; and the  evidential burden (burden of  

adducing evidence  or  burden of going forward), which is the

duty of  showing that there is  sufficient  evidence to raise an 

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issue  fit  for  the  consideration  of  the  trier  of  fact  as  to  the

existence or non-existence of a fact in issue.

The  normal  rule  is  that  a  defendant  is  presumed  to  be

innocent until he is proved guilty; it is therefore the duty of the

prosecution to prove its case by establishing both the actus reus

of  the  crime  and  the  mens  rea.  It  must  first  satisfy  the

evidential burden to show that its allegations have something to

support them. If it cannot satisfy this burden, the defence may

submit or the judge may direct that there is no case to answer,

and the judge must direct the jury to acquit.  The prosecution

may  sometimes  rely  on  presumptions  of  fact  to  satisfy  the

evidential  burden of  proof  (e.g.  the  fact  that  a  woman  was

subjected to violence during sexual intercourse will  normally

raise a presumption to support a charge of rape and prove that

she  did  not  consent).   If,  however,  the  prosecution  has

established a basis for its case, it must then continue to satisfy

the persuasive burden by proving its case beyond reasonable

doubt (see proof beyond reasonable doubt).  It is the duty of the

judge to tell the jury clearly that the prosecution must prove its

case and that it  must  prove it  beyond reasonable doubt;  if he

does not give this clear direction, the defendant is entitled to be

acquitted.

There  are  some  exceptions  to  the  normal  rule  that  the

burden of proof is upon the prosecution.  The main exceptions

are as follows. (1) When the defendant admits the elements of

the crime (the  actus reus  and  mens rea) but pleads a special

defence, the evidential burden is upon him to prove his defence.

This may occur,  the example, in a prosecution for  murder  in

which the defendant raises a defence of self-defence. (2) When

the defendant pleads automatism, the evidential burden is upon

him. (3) When the defendant pleads insanity, both the evidential

and persuasive burden rest upon him.  In this case, however, it

is sufficient if he proves his case on a balance of probabilities

(i.e. he must persuade the jury that it is more likely that he is

telling the truth than not).  (4) In some cases statute expressly

places a persuasive burden on the defendant;  for example,  a 

person who carries an offensive weapon in public is guilty of an 

offence  unless  he  proves  that  he  had  lawful  authority  or  a

reasonable excuse for carrying it”. 

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14 As is already noted above, Section 113B of the Evidence Act  and 

Section  304B  of  the  IPC were  introduced  into  their  respective  statutes 

simultaneously and, therefore, it must ordinarily be assumed that Parliament 

intentionally used the word ‘deemed’ in Section 304B to distinguish this 

provision from the others.   In actuality, however, it is well nigh impossible 

to give a sensible and legally acceptable meaning to these provisions, unless 

the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’ 

as freely interchangeable with the word ‘deemed’.  In the realm of civil and 

fiscal  law,  it  is not difficult  to import  the ordinary meaning of  the word 

‘deem’ to denote a set of circumstances which call to be construed contrary 

to what they actually are.   In criminal legislation, however, it is unpalatable 

to  adopt  this  approach  by  rote.   We  have  the  high  authority  of  the 

Constitution Bench  of  this  Court  both in State  of  Travancore-Cochin v. 

Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil 

Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to 

ascertain the purpose behind the statutory fiction brought about by the use of 

the word ‘deemed’ so as to give full effect to the legislation and carry it to 

its logical conclusion.   We may add that it is generally posited that there are 

rebuttable  as  well  as  irrebuttable  presumptions,  the  latter  oftentimes 

assuming an artificiality as actuality by means of a deeming provision.   It is 

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abhorrent  to  criminal  jurisprudence  to  adjudicate  a  person  guilty  of  an 

offence  even  though  he  had  neither  intention  to  commit  it  nor  active 

participation in its commission.   It is after deep cogitation that we consider 

it imperative to construe the word ‘shown’ in Section 304B of the IPC as to, 

in fact, connote ‘prove’.   In other words, it is for the prosecution to prove 

that a ‘dowry death’ has occurred, namely, (i) that the death of a woman has 

been caused in abnormal circumstances by her having been burned or having 

been bodily injured, (ii) within seven years of a marriage, (iii) and that she 

was subjected to cruelty or harassment by her husband or any relative of her 

husband, (iv) in connection with any demand for dowry and (v) that the 

cruelty or harassment meted out to her continued to have a causal connection 

or a live link with the demand of dowry.  We are aware that the word ‘soon’  

finds place in Section 304B; but we would prefer to interpret its use not in 

terms  of  days or  months or  years,  but  as  necessarily indicating that  the 

demand for dowry should not be stale or an aberration of the past, but should 

be the continuing cause for the death under Section 304B or the suicide 

under Section 306 of the IPC.  Once the presence of these concomitants are 

established or shown or proved by the prosecution, even by preponderance 

of  possibility,  the  initial  presumption  of  innocence  is  replaced  by  an 

assumption of guilt of the accused, thereupon transferring the heavy burden 

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of proof upon him and requiring him to produce evidence dislodging his 

guilt, beyond reasonable doubt.  It seems to us that what Parliament intended 

by using the word ‘deemed’ was that only preponderance of evidence would 

be insufficient to discharge the husband or his family members of their guilt. 

This interpretation provides the accused a chance of proving their innocence. 

This is also the postulation of Section 101 of the Evidence Act.  The purpose 

of Section 113B of the Evidence Act and Section 304B of the IPC, in our 

opinion,  is  to counter  what  is  commonly encountered  – the  lack  or  the 

absence of evidence in the case of suicide or death of a woman within seven 

years  of  marriage.     If  the word “shown” has to be given its  ordinary 

meaning then it  would only require the prosecution to merely present its 

evidence in Court,  not necessarily through oral deposition, and thereupon 

make  the  accused  lead  detailed  evidence  to  be  followed  by  that  of  the 

prosecution.   This  procedure is  unknown to Common Law systems,  and 

beyond the contemplation of the Cr.P.C.   

20

15 The width and amplitude of a provision deeming the guilt of a person 

in a legal system founded on a Constitution needs to be briefly reflected on. 

The Constitution is the grundnorm on which the legal framework has to be 

erected and its plinth cannot be weakened for fear of  the entire structure 

falling to the ground.   If  the Constitution expressly affirms or  prohibits 

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particular  state  of  affairs,  all  statutory provisions  which  are  incongruent 

thereto must be held as  ultra vires and, therefore, must not be adhered to. 

We  have  already  noted  that  Article  20  of  our  Constitution  while  not 

affirming the presumption of innocence does not prohibit it, thereby, leaving 

it  to  Parliament  to  ignore  it  whenever  found  by  it  to  be  necessary  or 

expedient.   A percutaneous scrutiny reveals that some legal principles such 

as presumption of innocence can be found across a much wider legal system, 

ubiquitously in the Common Law system, and restrictively in the Civil Law 

system.  It seems to us that the presumption of innocence is one such legal 

principle  which  strides  the  legal  framework  of  several  countries  owing 

allegiance  to  the  Common  Law;  even  International  Law  bestows  its 

imprimatur  thereto.  Article 11.1 of the Universal  Declaration of Human 

Rights, 1948 states – “Everyone charged with a penal offence has the right 

to be presumed innocent until proved guilty according to law in a public trial 

at which he has had all the guarantees necessary for his defence.”   Article 

14(3)(g) of the International Covenant on Civil and Political Rights, 1966, 

assures  as  a  minimum  guarantee  that  everyone  has  a  right  not  to  be 

compelled to testify against  himself or to confess guilt.    Article 6 of the 

European Convention for the Protection of  Human Rights and Fundamental 

Freedoms, firstly,  promises the right to a fair trial and secondly, assures that 

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anyone charged with a criminal offence shall  be presumed innocent until 

proved guilty according to law.   We may immediately emphasise that the 

tenet of presumed innocence will always give way to explicit legislation to 

the contrary.   The presumption of innocence has also been recognised in 

certain  circumstances  to  constitute  a  basic  human  right.    Parliament, 

however,  has  been  tasked  with  the  responsibility  of  locating  myriad 

competing,  if  not conflicting,  societal  interests.   It  is  quite apparent that 

troubled  by  the  exponential  increase  in  the  incidents  of  bride  burning, 

Parliament thought it prudent, expedient and imperative to shift the burden 

of proof in contradistinction to the onus of proof on to the husband and his 

relatives  in the  cases  where  it  has  been  shown  that  a  dowry  death  has 

occurred.   The inroad into or dilution of the presumption of innocence of an 

accused has, even de hors statutory sanction, been recognised by Courts in 

those cases where death occurs in a home where only the other spouse is 

present;  as also where an individual is last  seen with the deceased.   The 

deeming provision in Section 304B is, therefore, neither a novelty in nor an 

anathema to our criminal law jurisprudence.[See Mir Mohammad Omar and 

Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.

16 It has already been pointed out that both in Pathan Hussain Basha as 

well as in Ashok Kumar v. State of Haryana 2010 (12) SCC 350, authored 

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by our same learned Brother, the use of word “shown” in Section 304B has 

palpably  not  been  given  due  weightage  inasmuch  as  it  has  been  freely 

substituted  by  the  word  “proved”.    To  the  contrary  in  Nallam Veera 

Stayanandam v. Public Prosecutor 2004 (10) SCC 769, it has been opined 

that “it is for the defence in this case to satisfy the Court that irrespective of 

the prosecution case in regard to dowry demand and harassment, the death of 

the deceased has not occurred because of that and that the same resulted 

from a cause totally alien to such dowry demand or harassment.”

17  Keeping in perspective that Parliament has employed the amorphous 

pronoun/noun “it” (which we think should be construed as an allusion to the 

prosecution),  followed by the word “shown” in Section 304B,  the proper 

manner of interpreting the Section is that “shown” has to be read up to mean 

“prove” and the word “deemed” has to be read down to mean “presumed”. 

Neither life nor liberty can be emasculated without providing the individual 

an opportunity to disclose extenuating or exonerating circumstances.   It was 

for this reason that this Court struck down the mandatory death sentence in 

Section 303 IPC in its stellar decision in Mithu vs.  State of Punjab, AIR 

1983 SC 473.   Therefore, the burden of proof weighs on the husband to 

prove his innocence by dislodging his deemed culpability, and that this has 

to be preceded only by the prosecution proving the presence of three factors, 

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viz. (i) the death of a woman in abnormal circumstances (ii) within seven 

years of her marriage, and (iii) and that the death had a live link with cruelty 

connected with any demand of dowry.    The other facet is that the husband 

has  indeed  a  heavy  burden  cast  on  his  shoulders  in  that  his  deemed 

culpability would have to be displaced and overturned beyond reasonable 

doubt.  This emerges clearly as the manner in which Parliament sought to 

combat the scourge and evil of rampant bride burning or dowry deaths,  to 

which manner we unreservedly subscribe.   In order to avoid prolixity we 

shall record that our understanding of the law finds support in an extremely 

extensive  and  erudite  judgment  of  this  Court  in  P.N.  Krishna  Lal  v. 

Government  of  Kerala,  1995  Supp  (2)  SCC  187,  in  which  decisions 

spanning the globe have been mentioned and discussed.  It is also important 

to highlight that Section 304B does not require the accused to give evidence 

against  himself but casts the onerous burden to dislodge his deemed guilt 

beyond reasonable doubt.   In our opinion, it  would not be appropriate to 

lessen the husband’s onus to that of  preponderance of probability as that 

would annihilate the deemed guilt  expressed in Section 304B,  and such a 

curial interpretation would defeat and neutralise the intentions and purposes 

of Parliament.    A scenario which readily comes to mind is where dowry 

demands have indubitably been made by the accused husband, where in an 

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agitated state of mind, the wife had decided to leave her matrimonial home, 

and where while travelling by bus to her parents’ home she sustained fatal 

burn injuries in an accident/collision which that bus encountered.   Surely, if 

the husband proved that he played no role whatsoever in the accident,  he 

could not be deemed to have caused his  wife’s death.     It  needs to be 

immediately clarified that if the wife had taken her life by jumping in front 

of a bus or before a train, the husband would have no defence.    Examples 

can be legion, and hence we shall abjure from going any further.   All that 

needs to be said is that if the husband proves facts which portray, beyond 

reasonable doubt,  that he could not have caused the death of his wife by 

burns  or  bodily  injury  or  not  involved  in  any  manner  in  her  death  in 

abnormal  circumstances,  he  would not  be culpable  under  Section 304B. 

18 Now, to the case in hand.  It has been contended before us, as was also 

unsuccessfully argued before both the Courts below that there was a ‘delay’ 

in lodging the FIR.   There is no perversity in the concurrent views that its 

lodgement after ten hours on the day next after the tragedy, i.e. 8/02/98 did 

not constitute inordinate delay such as would justifiably categorising the FIR 

as an after-thought or as contrived.  The Complainant along with family and 

friends had to travel to another village; he would have had to first come to 

terms  with  the  tragedy,  make  enquiries  and  consider  the  circumstances, 

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before recording the FIR.   Equally preposterous is the argument that once 

the High Court had seen fit to acquit the other accused, namely, Davinder 

Singh  (brother-in-law)  and  Jarnail  Singh  (father-in-law)  the 

husband/Appellant  should  have  been  similarly  acquitted.    It  cannot  be 

ignored that the accused was not living with his parents and brother, and it is 

justified  nay necessary to require  stronger  proof  to implicate  the family 

members of the husband.   It has been essayed by the learned counsel for the 

Appellant to impress upon us that the cruelty postulated in this provision has 

not been shown to have occurred “soon before her death”.  This argument, 

assumes on a demurrer, that statutory cruelty had, in fact, been committed. 

The deceased and the Appellant were married in February, 1997 and the 

former committed suicide within one year; to even conjecture that it was not 

soon before death, has only to be stated to be stoutly shot down.   

19 We must  consider,  lastly,  whether the prosecution has successfully 

‘shown’ that the deceased was subjected to cruelty which was connected 

with dowry demands.    We may  usefully reiterate  here  that  keeping in 

perspective the use of “shown” instead of “proved” the onus would stand 

satisfied on the anvil of preponderance of evidence.

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20 The  two  prosecution  witnesses,  on  whom  the  entire  episode  is 

predicated,  are  PW4  and  PW7.   The  Complainant/PW4-Angrez  Singh 

appears to be the eldest in the family as he has stated that his brother, i.e. the 

father  of  the deceased,  had already died.   He  has stated  that  sufficient 

kanyadan was given at the time of marriage; that two months prior to her 

death the deceased had, on one of her visits to their home, conveyed to her 

brothers  that  her  husband and his  family were  harassing her  for  dowry, 

especially a motorcycle and fridge.   On learning of these demands PW4 had 

told her that these goods would be provided at the time of the marriage of 

her brothers.   PW4 was told by Rajwant Singh that his niece had committed 

suicide.   The Complainant  has admitted that there were no demands for 

dowry either at the betrothal or at the time of marriage.     Her maternal 

uncle  Gurdip  Singh  avowedly  fixed/mediated/arranged  the  unfortunate 

marriage, yet he was not apprised of the dowry demands by Angrez Singh. 

He has also denied that any panchayat was convened regarding these dowry 

demands,  whereas Sukhwant Singh PW7, the real brother of the deceased, 

has categorically stated in cross-examination that a panchayat comprising 

both  Angrez  Singh  and  Gurdip  Singh  and  several  others  had  held 

deliberations. 

27

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21 In cross-examination, the complainant has admitted that the deceased 

never spoke to him about her domestic problems or regarding demand of 

dowry by the accused except once, on the last occasion of her visit.  He has 

further admitted that even her brothers had not conveyed any information to 

him in this regard.   On the fateful  day PW4 stated that he reached the 

village where the deceased resided and where she had committed suicide at 

about 7.00 pm on 7.2.1998 and that he immediately left for that place along 

with several others after ascertaining facts; the following morning he lodged 

the report at P.S. Assandh.   What is important from his deposition is that he 

has deposed of only one alleged demand of dowry. 

22 Sukhwant Singh, the real brother of the deceased has been examined 

as PW7 and he has deposed that the deceased visited their house two months 

prior to her death and narrated that the Appellant, his younger brother, their 

father and mother used to harass and torture her and demand   dowry in the 

form of motorcycle and fridge and that he had told these facts to their uncle, 

Angrez Singh, as well as to his elder brother Jaswant Singh.   He has further 

stated that he made the deceased understand about their financial difficulties 

and promised to give motorcycle and fridge after his marriage and that of her 

brother.    He was informed of the death of the deceased on 7.2.98 by Angrez 

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Singh/PW4.  In cross-examination even this witness has admitted that no 

dowry demands were made prior to or at the time of marriage.     He has also 

deposed about a panchayat which included Gurdeep Singh (maternal uncle) 

as  well  as  Angrez  Singh/PW4  who,  as  has  already  been  noted,  has 

categorically stated that no such Panchayat took place.  The version of the 

Appellant was put to him and denied, namely, that the deceased was hot 

tempered, wanted him to shave his hair, forced him to live separately from 

his parents, wanted him to shift to Karnal and start a business, all of which 

were against his wishes.  The fundamental and vital question that the Court 

has to ask itself and find a solid answer to, is whether this evidence even 

preponderantly  proves  that  the  Appellant  had  treated  the  deceased  with 

cruelty connected with dowry demands.    It is only if the answer is in the 

affirmative  will  the  Court  have  to  weigh  the  evidence  produced  by  the 

Appellant  to  discharge  beyond  reasonable  doubt,  the  assumption  of  his 

deemed guilt.    We have not lost  sight of the fact that the deceased was 

pregnant  at  the  time  of  her  suicide  and  that  only  extraordinary  and 

overwhelming factors would have driven her to take her life along with that 

of her unborn child.   The fact remains that she did so.  What motivated or 

compelled her to take this extreme and horrific step will remain a mystery, 

as we are not satisfied that the prosecution has proved or even shown that 

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she was treated with such cruelty, connected with dowry demands, as led her 

to commit  suicide.   In the normal course dowry demands are articulated 

when the marriage is agreed upon and is certainly reiterated at the time when 

it  is  performed  and  such  demands  continue  into  a  couple  of  years  of 

matrimony.  In normal course, if a woman is being tortured and harassed, 

she would not remain reticent of this state of affairs and would certainly 

repeatedly inform her family.   This is specially so before she takes the 

extreme step of taking her own life.   Added to this are the inconsistencies 

and contradictions between the statements of PW4 and PW7 with regard to 

the panchayat and the presence of and knowledge of Gurdip Singh.   It is for 

these  reasons  that  we  are  of  the  opinion  that  the  prosecution  has  not 

shown/presented and or proved even by preponderance of probabilities that 

the deceased had been treated with cruelty emanating from or founded on 

dowry demands.    It  is in the realm of  a possibility that the ingestion of 

aluminium phosphate may have been accidental.

23 We may  only  observe  that  in  his  examination  under  Section  313 

Cr.P.C. the accused has proffered details of his defence.   This is not a case 

where he has merely denied all the questions put by the Court to him.   As 

already  stated  above,  because  of  the  insufficiency  or  the  unsatisfactory 

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nature of the facts or circumstances shown by the prosecution, the burden of 

proving his innocence has not shifted to the Appellant, in the present case.

24 In this analysis,  the Appeal is allowed and the impugned Judgment 

convicting and punishing the Appellant is set aside. 

                                                         

                     ............................................J.

           [VIKRAMAJIT SEN]

 

                     ............................................J.

           [KURIAN JOSEPH]

New Delhi;

January 09, 2015.

Page 31

 

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