CRIMINAL APPEAL NO.383 OF 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.383 OF 2018
Devender Singh & Ors. .… Appellants
Versus
The State of Uttarakhand …. Respondent
J U D G M E N T
Hima Kohli, J.
1. The appellants have assailed the judgment dated 14th September, 2017,
passed by the High Court of Uttarakhand at Nainital in Government Appeal No.57 of
2010, whereby the judgment dated 17th April, 2010 passed by the learned Sessions
Judge, Rudraprayag acquitting them from the charges under Section 498A, 304B
and 120B of the Indian Penal Code1
has been reversed and they have been
sentenced to undergo rigorous imprisonment for a period of seven year with a fine
of ₹10,000/- (Rupees Ten thousand) and in default, to undergo simple imprisonment
for three months for the offence under Section 304B IPC. The appellants have also
been sentenced to undergo rigorous imprisonment for one year under Section 120B
IPC and two years under Section 498A IPC. Being aggrieved by the said judgment
1 for short “IPC”
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and order of conviction, the appellants are before this Court, in this appeal by way of
special leave.
2. The brief facts leading to the case are that the appellant No.1, Devender
Singh, son of appellant No. 3, Smt. Kunja Devi and Bhawan Singh was married to
the deceased, Sushila, the wedding having been solemnized on 20th October, 2007.
Sushila is stated to have gone missing from her matrimonial home since 24th April,
2008. This came to the knowledge of the mother of the deceased when the
appellant No.2 herein, Jagdish Singh, brother of the appellant No. 1 called her on
25th April, 2008, at 7.00 p.m. to inform her and enquire as to whether Sushila had
gone to the parental home. The mother of the deceased in turn informed her son,
the complainant, who resided at Haridwar. On returning to his house, the
complainant went to the matrimonial home of the deceased on 28th April, 2008. It
has been alleged by the complainant that keeping in view the fact that there were
repeated demands for dowry made by the appellants and the manner in which they
had behaved with him when he had gone to visit them, made him suspect that his
sister had been killed by the appellants but they were feigning ignorance and acting
as if his sister had gone missing.
3. Based on the complaint, investigation was carried out by the local police
and the body of Sushila was subsequently found in Ganga river. Having regard to
the fact that an unnatural death had taken place within about six months of the
marriage and since there was an allegation of cruelty relating to demand of dowry, a
case was registered against the appellants under Sections 498A, 304B and 120B of
IPC. The appellants having denied the allegations levelled against them, trial was
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conducted in Sessions Trial No.18/2008 before the District and Sessions Judge,
Rudraprayag. In support of their case, the prosecution examined 14 witnesses
arrayed as PW-1 to PW-14. Besides denying their role while recording their
statements under Section 313 of the Criminal Procedure Code, the
appellants/accused also examined DW-1 to DW-3 as their witnesses. On
considering the evidence, the trial Court recorded findings in favour of the appellants
and acquitted all of them vide judgment dated 17th April, 2010.
4. Being aggrieved by the judgment dated 17th April, 2010, State of
Uttarakhand preferred an appeal before the High Court of Uttarakhand at Nainital
vide Government Appeal No.57 of 2010. On reappreciating the entire evidence
exhaustively and on applying the legal principles, the High Court has allowed the
said appeal. Consequently, the judgment and order dated 17th April, 2010 passed by
the Sessions Judge in Sessions Trial No.18 of 2018 was set aside. The appellants
have been convicted under Sections 498A, 304B and 120B of IPC and sentenced to
undergo rigorous imprisonment for a period of seven years and pay a fine of
₹10,000/- (Rupees Ten thousand) and in default, to undergo three months simple
imprisonment under Section 304B IPC. The appellants have also been sentenced to
undergo rigorous imprisonment of one year under Section 120B IPC and two years
under Section 498A IPC. The sentence was handed down by a separate order dated
05th October, 2017. Claiming to be aggrieved by the judgment of conviction and
sentence handed down by the High Court, the appellants are before this Court.
5. Mr. Robin R. David, learned counsel for the appellants while assailing the
judgment passed by the High Court has taken us through the records. It is his
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contention that the High Court has committed an error by misdirecting itself to note
the conduct of the appellants in committing a delay in registering the missing
complaint relating to the deceased. He contended that a contradictory view has
been taken by the High Court while arriving at the conclusion that the complaint was
filed after more than 48 hours of the incident despite noticing the fact that the
appellant No.1 had telephonically informed the Patwari of the village on 26th April,
2008 and the appellant No.2 had informed the mother of the deceased of the latter
going missing from the matrimonial home since 24th April, 2008 itself. He submitted
that such an assumption on the part of the High Court has led to a wrong
conclusion. Further, it has been argued that the High Court has fallen into an error
by holding that there is material on record to indicate that the appellants had been
harassing the deceased for bringing insufficient dowry. He pointed out that the
mother of the deceased (PW-1) had admitted to the fact that the deceased was
staying at the parental home only to continue her studies. Therefore, the claim of
dowry demand being made, as stated, is unacceptable. He further pointed out that
DW-3 in whose presence the marriage talks had been held, had deposed in her
evidence that there was no demand for dowry and that the marriage expenses had
also been shared between the parties.
6. Learned counsel for the appellants further submitted that the fact of the
appellant No.1 having opened a bank account in the name of the deceased wherein
he was depositing a sum of ₹100/- (Rupees One hundred) on alternate days would
go to show that there was no reason for the appellants to have made any monetary
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demands on her. He also contended that the High Court has erred in arriving at the
findings relating to the cause of death of Sushila. He alluded to the deposition of
PW-10, the doctor who had indicated that the cause of death was due to shock and
blood flow received from the injuries sustained and opined that such injuries could
occur if a person falls down from a standing rock. Judicial notice taken by the High
Court that villagers would go in groups to the forest to bring fodder and fuelwood, is
stated to be unwarranted in the facts and circumstances of the present case, without
there being any cogent evidence in this regard. It was argued that the trial Court
had in fact taken note of the evidence in its correct perspective and arrived at a valid
conclusion, which ought not to have been disturbed by the High Court more so,
when there was no strong basis for doing so. It was thus submitted that the appeal
be allowed and the impugned judgment be set aside.
7. Mr. Jatinder Kumar Bhatia, learned counsel for the State would seek to
sustain the judgment passed by the High Court. It was his contention that the trial
Court had in fact proceeded to analyse the evidence as if it was considering a
matter where the charge framed was for committing murder under Section 302 IPC,
whereas, in the instant case, the charges framed against the appellants was under
Sections 304B and 498A read with Section 120B IPC, in respect of “dowry death”.
The said provision itself raises certain presumptions against the accused. In a
matter where the death of the wife of the appellant No.1 had occurred within a few
months of her marriage when she was residing at the matrimonial home and such a
death is an unnatural one, it was for the appellants to have explained the
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circumstance under which the death had occurred when prima-facie, the
prosecution had succeeded in proving the basic ingredients of the section. In that
light, it was sought to be urged that the trial Court had in fact completely misdirected
itself. It was further submitted that the High Court while deciding an appeal was
required to re-appreciate the evidence which has been meticulously done by
referring to the evidence tendered by each of the witnesses. Learned State counsel
contended that on analyzing the evidence brought on record in the context of the
legal position, as enunciated in various decisions of this Court which were taken
note of, the High Court has arrived at a just conclusion and has found the judgment
of the trial Court to be erroneous, resultantly setting aside the same.
8. In the light of the rival contentions and the charges levelled against the
appellants and to place the matter in its correct perspective, it is considered
necessary to take note of the provision as contained in Section 304B of IPC which
reads as follows :-
“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 purposes 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.”
9. A perusal of the above provision would indicate that the main ingredients
of the offence required to be established are :-
(i) that soon before the death, the deceased was subjected to cruelty and
harassment in connection with the demand of dowry;
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(ii) the death of the deceased was caused by any burn or bodily injury or
some other circumstance which was not normal;
(iii) such a death has occurred within 7 years from the date of her marriage;
(iv) that the victim was subjected to cruelty or harassment by her husband or
any relative of her husband;
(v) such a cruelty or harassment should be for, or in connection with the
demand of dowry; and
(vi) it should be established that such cruelty and harassment were made
soon before her death.
10. The presumption drawn relating to dowry death has been contemplated in
Section 113B of the Indian Evidence Act, 1872, which states as follows :
“113B. Presumption as to dowry death - When the question is whether a
person has committed the dowry death of a woman and it is shown that
soon before her death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any demand for dowry, the
Court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section, “dowry death” shall have the
same meaning as in section 304B of the Indian Penal Code (45 of 1860).”
11. Section 304B IPC read along with Section 113B of the Indian Evidence
Act, 1872 makes it clear that once the prosecution has succeeded in demonstrating
that a woman has been subjected to cruelty or harassment for or in connection with
any demand for dowry soon after her death, a presumption shall be drawn against
the said persons that they have caused dowry death as contemplated under Section
304B IPC. The said presumption comes with a rider inasmuch as this presumption
can be rebutted by the accused on demonstrating during the trial that all the
ingredients of Section 304B IPC have not been satisfied. [Ref.: Bansi Lal vs. State
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of Haryana2
, Maya Devi and Anr. vs. State of Haryana3
, G.V. Siddaramesh v.
State of Karnataka4
and Ashok Kumar vs. State of Haryana5
].
12. Having taken note of the relevant provision and the ingredients thereof,
the facts of the instant case would disclose that the deceased and the appellant
No.1 had got married on 20th October, 2007. Sushila, wife of the appellant No.1 had
gone missing from the matrimonial home from 24th April, 2008 and her dead body
was fished out on the 10th day from river Alakhnanda near Naragasu. From the
basic facts noted above, the basic ingredients of Section 304B IPC such as the
death not being normal and such a death having occurred within 7 years from the
date of her marriage would stand fully established. The question, therefore, is as to
whether the evidence tendered by the prosecution would be sufficient to establish
the remaining ingredients of Section 304B IPC with regard to the demand for dowry
and perpetration of cruelty and harassment in connection with such a demand.
Further, whether such cruelty and harassment were suffered by the deceased soon
before her death so as to constitute a dowry death. As to the phrase ‘soon before
her death’, it is well-settled that the same ought to be interpreted to mean proximate
and to be linked with but not to be understood to mean immediately prior to the
death.
2 (2011) 11 SCC 359
3 (2015) 17 SCC 405
4 (2010) 3 SCC 152
5(2010) 12 SCC 350
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13. While taking note of the evidence and the other aspects of the matter,
what is also to be borne in mind in the instant case is that the death which did not
take place in normal circumstances, had occurred within just about 6 months from
the date of the marriage. In that context, a perusal of the evidence of Smt. Thapa
Devi (PW-1), mother of the deceased gains significance. She had categorically
stated that when the deceased had for the first time come to the parental home from
her in-laws, she had said that her in-laws and husband were demanding dowry and
had been harassing her. The nature of the demand was also specified to say that
they were seeking payment of a sum of ₹2,00,000/- (Rupees Two lakhs) as dowry
and in the alternative, to get a house constructed in Haridwar. PW-1 further stated
that on 10th April, 2008, when she had gone to her daughter’s house, the appellants
had at that stage quarrelled with her and placed a demand before her for
₹2,00,000/- (Rupees Two lakhs) or to have a house constructed for them in
Haridwar. She however came back on 11th April, 2008, leaving her daughter behind.
Within 2-4 days thereafter, the deceased is stated to have called PW-1 indicating
that she was disturbed as the appellants were harassing her badly and also beating
her. PW-1 stated that she had conveyed this to her brother-in-law, Mr. Rajendra
Singh and shared with him about such a demand and harassment faced by the
deceased. Her brother-in-law had assured her that he would come over after 2-3
days and attempt to sort out the matter.
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14. When this was the position, on 25th April, 2008, PW-1 received a phone
call, from appellant No.2, brother of her son-in-law (appellant No.1) who had
enquired as to whether the deceased had come to the parental home as she was
missing from the matrimonial home. PW-1 thereafter informed her sons, who came
from Haridwar and thereafter went to the in-laws’ place. It is undisputed that the
body was traced after 10 days. The evidence tendered by PW-1 was not discredited
in the cross-examination. It was suggested to PW-1 that the deceased was staying
for most of the time at the parental home within about 10-11 days after the marriage
so as to complete her education and the said suggestion was made to indicate that
there was no scope for demanding dowry. However, this was clarified by PW-1 who
stated that though it was so, the deceased had gone back to the matrimonial home
on the very next day when her inter-examination was over. The further suggestion
made that the appellants No.2 and 3 were residing in a separate house away from
that of the appellant No.1 was also denied.
15. In addition to the aforesaid evidence, the High Court has noted the
evidence of Balbir Singh (PW-2), brother of the deceased, who corroborated the
version of the mother of the deceased (PW-1). In fact, PW-2 has also stated with
regard to the deceased having telephoned on the morning of 24th April, 2008 and
informed them that she was pregnant and had pain in her abdomen and when she
told her husband to bring medicine and a blouse piece, she was beaten by saying
that she should get it from her parents. The evidence of Smt. Mira Bhandari (PW-3),
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sister-in-law of the deceased and Sh. Tajwar Singh (PW-4), brother of the deceased,
was also taken note of by the High Court in reasonable detail wherein the sequence
of the events as narrated by PW-1 and PW-2 stood corroborated by them. Further,
Sh. Rishipal Singh (PW-5), and Sh. Rajendra Singh (PW-7), uncles of the deceased
had also deposed with regard to the incident and that they were told about the dowry
demand and harassment caused to the deceased. Sh. Vijaypal Singh (PW-8), the
Pradhan of the village deposed that he was aware that the deceased had gone
missing on 24th April, 2008 and they were searching for her subsequently. He had
also visited the spot from where the body had been recovered.
16. Though, it was contended on behalf of the appellants that the Patwari had
been informed immediately, Sh. Jagdish Prasad Gairola (PW-9) who was the
Patwari, stated that appellant No.1 had informed him on the telephone only on 26th
April, 2008, that his wife had gone missing, which he is stated to have entered in the
G.D. The contention as put forth by learned counsel for the appellants regarding no
delay in making the complaint as noted by the High Court, loses significance in the
light of the other related aspects.
17. Though, the High Court has also referred to the evidence of the remaining
witnesses produced by the prosecution, keeping in view the fact that the evidence
as required for establishing the demand of dowry and harassment is to be noted
from the evidence as taken note of hereinabove, it would be clear that even though
the appellants have sought to urge that at the time of fixing the marriage, no dowry
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was exchanged or demand placed and that the wedding expenses were also shared
by both sides, the categorical oral testimony of PW-1 to PW-4 that remained
unshaken would indicate that soon after the marriage, when the deceased for the
first time came to her parental home, she had stated about the demand for dowry
made on her and specified the demand, i.e., a sum of ₹2,00,000/- (Rupees Two
lakhs) or to construct a house in Haridwar. Even though it has been contended on
behalf of the appellant that the deceased was staying at her parental house to
complete her studies, as per the version of PW-1 while accepting that position, she
had asserted that about 10-11 days after the wedding, Sushila had gone to her
parental home but soon after sitting for the intermediate examination, she had gone
back to the matrimonial home. The fact however remains that she went missing from
the matrimonial home and the body was recovered from the river in the vicinity of the
matrimonial home. In that regard, apart from the testimony of the witnesses who
deposed that the deceased had told them about the dowry demand and harassment
during her first visit to the parental home, PW-1 referred to the incident that took
place on 10th April, 2008, when she herself had gone with her daughter to the inlaws’ house to drop her and all of them had quarrelled with her on the aspect relating
to dowry in the same terms, i.e., a demand of ₹2,00,000/- (Rupees Two lakhs) or for
a house to be built in Haridwar. She had thereafter returned on 11th April, 2008 which
was about two weeks prior to the date on which the deceased had gone missing.
Further, PW-1 has also stated that within 2-4 days from 11th April, 2008, after she
had returned, the deceased had made a phone call and was very disturbed since
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she was being harassed badly and was being beaten. She had shared this with her
brother-in-law, Sh. Rajendra Singh, who has been examined as PW-7. In addition,
PW-2 also deposed with regard to the complaint made by the deceased over the
phone in the morning of the fateful day, i.e., 24th April, 2008, about her husband
treating her with cruelty when in her pregnant state, she had asked for medicine for
the pain in her abdomen.
18. In the above background, even if in the evidence, Smt. Maya Devi (DW-3)
who was the go-between for finalizing the marriage, had stated that there was no
demand for dowry at that point in time, it is of no consequence since what is relevant
is the demand which was made subsequent to the marriage and soon before the
incident to which the said witness was in any event, not privy.
19. Further, the evidence of Sh. Rakesh Bisht (DW-1) to the effect that the
appellant No.1 had opened a Bank account in the name of the deceased and was
depositing ₹100/- (Rupees one hundred) every other day in the said account with
effect from 07th December, 2007, cannot alter the situation since that, in any event,
cannot take away the specific nature of the dowry demand that was referred to by
PW-1 to PW-4, as having been made by the appellant No.1. The evidence of Shri
Prem Singh (DW-2) who stated that while he was travelling in a bus on 24th May,
2008, he had noticed a girl wearing red clothes falling from the cliff, has rightly been
held to be unreliable in as much as if such an incident had been noticed by him,
admittedly the said witness did not take any further steps in that regard.
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20. A perusal of the impugned judgment would disclose that the High Court
has appreciated the evidence in the correct perspective. Though the trial Court also
referred to the very same evidence and the analysis commenced from para 27 of the
judgment, it indicates that the observation made by the trial Court that there was no
such evidence available on the file that the murder of the deceased, Sushila had
been committed, will disclose that the trial court was appreciating the evidence from
the prism of assessing the charge under Section 302 IPC, when the evidence on
record ought to have been analyzed and appreciated keeping in mind the
requirements of Section 304B and 498A IPC and the ingredients thereof.
21. In the above backdrop and keeping in view the fact that the deceased was
residing at the matrimonial home and had gone missing in circumstances where all
the ingredients of Section 304B stood satisfied, the evidence of Dr. Digvijay Singh
(PW-10) becomes relevant. The nature of injuries found on the body of the
deceased at the time of the post-mortem was adverted to and PW-10 has deposed
that the death had occurred about a week earlier to the examination. He opined that
death had occurred due to shock and blood flow from the injuries received before
the death. The doctor was categorical that the cause of death was not from
drowning as there was no water inside the lungs and abdomen. Though learned
counsel for the appellants referred to this aspect to contend that the High Court has
erred in not properly considering the same, in our opinion, when it is indicated that
the deceased had suffered injuries before her death and there was loss of blood and
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also when it is medically indicated that the death was not caused due to drowning as
there was no water in her lungs and abdomen, the natural corollary and a fair
conclusion would be that the said death had occurred even before falling into the
river, which would rule out any accidental fall, as sought to be claimed by the
appellants. In fact, this would only increase the burden cast upon the appellants to
explain the situation.
22. Though, the appellants have attempted to set up a story that the deceased
had gone to hills to cut grass, as rightly noted by the High Court, she could not have
gone alone. Be that as it may, except for a bald statement, the appellants have not
brought any material on record to demonstrate that it was a normal practice for the
deceased to go to the hills for cutting grass more so in circumstances where she
was less than six months at her matrimonial home, pregnant and also during that
very period, she had been going to her parental house for continuing her education,
as has been contended by the appellants themselves. Therefore, in such a situation,
we have no hesitation in observing that the appellants have miserably failed to rebut
the presumption drawn against them under Section 113B of the Evidence Act, in a
matter relating to an offence under Section 304B of IPC.
23. Having arrived at the above conclusion, the issue before us is as to
whether in the facts and circumstances of the instant case, the appellants No.2 and
3 should also be held equally guilty as the appellant No.1. It is no doubt true that the
evidence of PW-1 indicates that the deceased had informed her that the husband
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and the in-laws had been harassing her and when PW-1 had gone to drop her
daughter back to the matrimonial home on 10th April, 2008, the in-laws had raised a
dowry demand. However, what has also been brought on record is that the
appellants No.2 and 3 were residing separately, in a different house. In the crossexamination of PW-1, a suggestion was made to her about the distance between the
two houses. Further, fact remains that the trial Court also referred to this aspect in
para 31 of the judgment where learned counsel for the defence had brought to the
notice of the Court that there were two ration cards and the ration card of the
appellants No.2 and 3 is separate from that of the appellant No.1 which mentions his
name and that of the deceased. That apart, the nature of the demand made was for
a lumpsum amount of ₹2,00,000/- (Rupees Two lakhs) or for constructing a house in
Haridwar, either of which was essentially for the benefit of the appellant No.1.
Therefore, there is no specific role with regard to the demand of dowry and nor has
any specific instance of cruelty and harassment been ascribed to the appellants
No.2 and 3 except for the general assertion. Moreover, in a circumstance where
the charge was also under Section 120B IPC, there is no specific evidence led by
the prosecution relating to the conspiracy allegedly hatched by the appellants. In
the aforesaid circumstances, we are of the opinion that the appellants No.2 and 3
deserve to be given the benefit of doubt and their conviction would not be justified.
24. In the above backdrop, the conviction and sentence handed down by the
High Court to the appellant No.1 (husband of the deceased) is upheld. However,
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the conviction and sentence handed down by the High Court to the appellants No.2
and 3 is set aside. The judgment dated 14th September, 2017 passed in Government
Appeal No.57/2010 stands modified to the said extent. It is ordered that the
appellant No.2 and 3 who were released on bail on 12th March, 2008, be set free.
The bail bonds executed by the appellants No.2 and 3 are, accordingly, cancelled.
Appellant No.1 shall, however, surrender within two weeks and serve the remaining
part of the sentence imposed on him.
25. The appeal is partly allowed on the above terms.
26. Pending applications, if any, shall stand disposed of.
..…………....................CJI.
[N.V. RAMANA]
…..…………....................J.
[A.S. BOPANNA]
..…..………......................J.
[HIMA KOHLI]
New Delhi,
April 21, 2022.
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