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 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. 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. 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 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. 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, 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 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 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:
(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 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 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.
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 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 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 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.
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 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 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
