Sec.498 A, 304 B of I.P.C. r/w sec.113 B &Section 114 Illustration (a) of Evidence Act - Once the marriage was proved with in 7 years , once prosecution proved harassment for dowry and once the prosecution proved that the death is not suicide - On the failure of Accused to prove that the death was due to accidental, he can not escape from the claws of Penal code - Apex court held that A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.=
Under
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.=
story of bursting of stove was not reliable. =
Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.=
2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41973
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1366 OF 2010
SULTAN SINGH ..... APPELLANT
VERSUS
STATE OF HARYANA ..... RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction
and sentence of the appellant under Sections 304-B and
498-A of the Indian Penal Code (for short the “IPC”). Under
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.
2. The appellant was married to the deceased Lavjeet
Kaur on 27th February, 1990. On 17th June, 1994, PW 4-
Gurmeet Singh lodged First Information Report to the effect
that Lavjeet Kaur was burnt to death by the appellant and
1Page 2
his mother. It was further stated that she was harassed for
dowry soon before her death. Apart from other demands of
dowry, it was stated that 5-6 days before the death, the
appellant visited the parental house of the deceased and
made a demand of Rs.30,000/- for purchase of land. Since
the said demand was not met, he left the house under
protest. On the fateful day, when he (PW-4) visited the
house of the appellant he found that the appellant’s mother
poured oil from a ‘can’ on the deceased and the appellant
ignited the fire. He came to his parents and thereafter he
went to the Civil Hospital where he learnt that the accused
was referred to the PGI Chandigarh but she died on the way.
3. On the basis of this First Information Report, the
investigation was conducted by PW 6-ASI, Madan Pal Singh
and after investigation, the appellant and his mother (who
has been acquitted by the High Court) were sent up for trial.
4. The prosecution examined PW 4-Gurmeet Singh,
brother of the deceased, PW 5-Ujjagar Singh, father of the
deceased, apart from evidence of Investigating Officer and
the Medical Officer and other evidence.
5. The appellant denied the allegations and took the plea
that the deceased caught fire accidentally while working on
2Page 3
a stove. He had gone to the school near their house for
giving his photo for the Identity Card for voting purpose.
When he learnt about the accident, he immediately took
Lavjeet Kaur to the hospital.
6. The trial Court held that though the version of PW 4-
Gurmeet Singh and PW 5-Ujjagar Singh that they had seen
the appellant setting the deceased on fire was not reliable,
their reversion of demand of dowry soon before the death
could not be rejected. Since her death was within seven
years of marriage, demand of dowry was proved and the
death was under the circumstances other than normal,
presumption under Section 113B of the Indian Evidence Act
could be raised. Thus, the commission of offences under
Sections 498-A and 304-B, IPC was proved. It was
held that story of bursting of stove was not reliable. The
relevant discussion in this regard, is as follows :
“From the sworn testimony of PWs Gurmeet Singh
and Ujjagar Singh discussed above it has become
very clear that deceased Smt. Lavjeet Kaur was
subjected to cruelty or harassment by the accused
persons for the demand of dowry right from the
beginning of her marriage till death. Even soon
before her death she was subjected to cruelty by
the accused persons when father of the deceased
could not pay a sum of Rs.30,000/- to accused
Sultan Singh 5/6 days prior to the death of
deceased. Deceased was married with accused
3Page 4
Sultan Singh on 27.2.1990 and she died on
17.6.1994 on account of burn injuries at the
matrimonial home. The fact that the deceased
died on account of burn injuries is well proved
from the medical evidence consisting of the
statements of Dr. S.K. Gupta who medico-legally
examined the deceased immediately on arrival at
Civil Hospital Ambala Cantt., and also of Dr.
Gajinder Yadav PW-3 who conducted the post
mortem examination of the dead body of
deceased. The deceased Smt. Lavjeet Kaur aged
about 22 years had suffered 70% burn injuries and
died on account of the same. Thus, it has been
well established that the death of deceased Smt.
Lavjeet Kaur was caused by burns and she died
unnatural death. It has also been established that
she died within a period of seven years of her
marriage. As already discussed by me that it has
also been established that the deceased was also
subjected to cruelty by the accused persons for
the demand of dowry soon before her death. Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.
The medical evidence as pointed out by the
learned defence counsel also does not help the
accused persons in any way. It has been deposed
by Dr. Gajinder Yadav that there were deep burns
on legs and chest of the deceased. It has come in
the statements of both the medical officers that
the deceased suffered 70% burn injuries and died
as a result thereof. It has been categorically
stated by Dr. Gajinder Yadav who conducted the
post-mortem examination that the deceased died
on account of burn injuries which were sufficient to
cause death in the ordinary course of nature. I fail
to understand as to what help the accused could
take from the statements of the medical officers
by pointing out that the Medical Officers have
deposed that there was no smell of kerosene from
the body and clothes of the deceased. If it was so
then it also smashes the defence version, because
if the deceased had caught fire by bursting of
stove then also there must be smell of kerosene oil
on her clothes. In my view, the smell of kerosene
might have evaporated in between the time of
occurrence till the post mortem examination
because the occurrence had taken place on
17.6.1994 at about noon time, whereas the post
mortem examination was conducted on 18.6.1994.
Further, the deceased was unconscious when she
was admitted in the hospital and therefore, it is
not known how the deceased could tell Dr. S.K.
5Page 6
Gupta that she had caught fire while working on a
stove. Another person from whom Dr. S.K. Gupta
derived this information was one Amar Nath a
private Medical practitioner, who accompanied the
deceased to the hospital. However, Shri Amar
Nath was not produced in defence to ascertain
whether he had told this fact to the Medical Officer
and if so how he acquired the said knowledge
whether from the deceased or otherwise.
Moreover, in the ruka Ex.PC sent by Dr. S.K. Gupta
to the police there is no mentioning of the bursting
of stove, nor it has been mentioned as to how he
learnt that the deceased caught fire while working
on a stove. It has simply been mentioned that the
deceased was alleged to have sustained burns
70% while working on a stove. The word ‘bursting’
is missing in this ruka, whereas, it was so stated by
Dr. S.K. Gupta when he appeared in the witness
box. If the story of bursting of stove came to his
knowledge it is not known why he omitted to
mention this fact in his ruka Ex. PC sent to the
police. Taking into consideration all the facts and
circumstances I am of the definite view that the
statement of Dr. S.K. Gupta to the effect that there
was the history of burns allegedly sustained by the
deceased due to bursting of stove while cooking
food is not legally sound because neither Amar
Nath was produced, nor deceased could speak
anything before her death.”
7. The appellant preferred an appeal. The High Court
upheld the conviction of the appellant while acquitting his
mother Mohinder Kaur, the co-accused, of the charge under
Section 304-B, IPC but upheld her conviction under Section
498A, IPC. It was observed that the allegation of demand of
dowry soon before the death was only against the appellant
and not against his mother. Rejecting the defence plea of
accidental burning, the High Court observed as under :
6Page 7
“The accused or their persons might have
accompanied Lavjeet Kaur to the hospital. The
accused are naturally interested to save
themselves from legal punishment and such as the
said history might have been given by them or
Amar Nath to save the accused. PW-2 Dr. S.K.
Gupta has no personal knowledge about the
occurrence and has stated that there was history
of burns sustained by Lavjeet Kaur due to bursting
of stove while cooking food. So, that history was
given by the accused or Amar Nath, accompanying
the injured to the hospital.
One another circumstance which militates against
the case of the accused is that the police found the
blood sustained Gadda in the room where the
occurrence is stated to have taken place and not
in the kitchen, as per stand of the accused. That
fact belied the stand of accused.
The statement of Dr. S.K. Gupta that history was
given by the patient does not appeal to reason.
The deceased was having 70% burn injuries and as
such she was not in a position to narrate the
occurrence. The police had no reason to change
the place of occurrence from the kitchen to the
room as shown in the rough site plan. There were
singeing of the skull hair of Lavjeet Kaur besides
having burn injuries on the chest and lower part of
the body. The fact of bursting of stove and giving
the case history by Lavjeet Kaur is not mentioned
by Dr. S.K. Gupta in the record. The doctor is not
supposed to orally know all the facts. It seems
that Dr. S.K. Gupta has stated that the history of
the case was given by the patient simply to favour
the accused, moreso when there is nothing in this
regard on the record. So, no reliance can be
placed on the statement made by Dr. S.K. Gupta,
in this regard.
PW-3 Dr. Gajinder Yadav, has stated that there
was probability of the deceased receiving burn
injuries by accidental fire but he has not stated it
with confidence that in all probability, the death
could be accidental, in the present case. That
doctor has not seen the other circumstantial
evidence at the spot before arriving at the
conclusion. So, the learned trial Court has rightly
held that Lavjeet Kaur, deceased, has died due to
7Page 8
unnatural injuries and not by accidental burn
injuries.”
8. We have heard learned counsel for the parties and
perused the evidence on the record.
9. The main question raised for our consideration is
whether the evidence of demand of dowry soon before the
death was reliable and whether it was a case of accidental
death as pleaded by the defence. The presumption under
Section 113B of the Indian Evidence Act is attracted only in
case of suicidal or homicidal death and not in case of an
accidental death.
10. We are unable to accept the submissions advanced on
behalf of the appellant.
11. The brother and father of the deceased have made
categorical allegation of demand of dowry which confirmed
almost upto the date of death. Even though version of PW 4,
brother of the deceased, and PW 5, father of the deceased,
may be exaggerated to the extent of saying that they saw
the accused and his mother causing burn injuries, there is no
reason to disbelieve their version with regard to demand of
dowry. It is true that in case of accidental death
presumption under Section 113B of the Indian Evidence Act
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.=
story of bursting of stove was not reliable. =
Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.=
A conjoint reading of Section 113-B of the
Evidence Act and Section 304-B IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to
bring it within the purview of “death occurring
otherwise than in normal circumstances”. The
expression “soon before” is very relevant where
Section 113-B of the Evidence Act and Section
304-B IPC are pressed into service. The
prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence
in that regard has to be led by the prosecution.
“Soon before” is a relative term and it would
depend upon the circumstances of each case and
no straitjacket formula can be laid down as to what
would constitute a period of soon before the
occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a
proximity test both for the proof of an offence of
dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The
expression “soon before her death” used in the
substantive Section 304-B IPC and Section 113-B
of the Evidence Act is present with the idea of
proximity test. No definite period has been
indicated and the expression “soon before” is not
defined. A reference to the expression “soon
before” used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court
may presume that a man who is in the possession
of goods “soon after the theft, is either the thief or
has received the goods knowing them to be stolen,
unless he can account for their possession”. The
determination of the period which can come within
the term “soon before” is left to be determined by
the courts, depending upon facts and
circumstances of each case. Suffice, however, to
indicate that the expression “soon before” would
normally imply that the interval should not be
much between the cruelty or harassment
concerned and the death in question. There must
be existence of a proximate and live link between
the effect of cruelty based on dowry demand and
the death concerned. If the alleged incident of
cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of
the woman concerned, it would be of no
consequence.
15. Having regard to the entirety of material, we do not
find any ground to interfere with the concurrent finding
recorded by the courts below that it was not a case of
accidental death but a death taking place in circumstances
other than normal. Thus, the presumption under Section
113B of the Indian Evidence Act has been rightly invoked
and the offence against the appellant has been proved.
There is no tangible circumstance to rebut the presumption.
2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41973
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1366 OF 2010
SULTAN SINGH ..... APPELLANT
VERSUS
STATE OF HARYANA ..... RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction
and sentence of the appellant under Sections 304-B and
498-A of the Indian Penal Code (for short the “IPC”). Under
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.
2. The appellant was married to the deceased Lavjeet
Kaur on 27th February, 1990. On 17th June, 1994, PW 4-
Gurmeet Singh lodged First Information Report to the effect
that Lavjeet Kaur was burnt to death by the appellant and
1Page 2
his mother. It was further stated that she was harassed for
dowry soon before her death. Apart from other demands of
dowry, it was stated that 5-6 days before the death, the
appellant visited the parental house of the deceased and
made a demand of Rs.30,000/- for purchase of land. Since
the said demand was not met, he left the house under
protest. On the fateful day, when he (PW-4) visited the
house of the appellant he found that the appellant’s mother
poured oil from a ‘can’ on the deceased and the appellant
ignited the fire. He came to his parents and thereafter he
went to the Civil Hospital where he learnt that the accused
was referred to the PGI Chandigarh but she died on the way.
3. On the basis of this First Information Report, the
investigation was conducted by PW 6-ASI, Madan Pal Singh
and after investigation, the appellant and his mother (who
has been acquitted by the High Court) were sent up for trial.
4. The prosecution examined PW 4-Gurmeet Singh,
brother of the deceased, PW 5-Ujjagar Singh, father of the
deceased, apart from evidence of Investigating Officer and
the Medical Officer and other evidence.
5. The appellant denied the allegations and took the plea
that the deceased caught fire accidentally while working on
2Page 3
a stove. He had gone to the school near their house for
giving his photo for the Identity Card for voting purpose.
When he learnt about the accident, he immediately took
Lavjeet Kaur to the hospital.
6. The trial Court held that though the version of PW 4-
Gurmeet Singh and PW 5-Ujjagar Singh that they had seen
the appellant setting the deceased on fire was not reliable,
their reversion of demand of dowry soon before the death
could not be rejected. Since her death was within seven
years of marriage, demand of dowry was proved and the
death was under the circumstances other than normal,
presumption under Section 113B of the Indian Evidence Act
could be raised. Thus, the commission of offences under
Sections 498-A and 304-B, IPC was proved. It was
held that story of bursting of stove was not reliable. The
relevant discussion in this regard, is as follows :
“From the sworn testimony of PWs Gurmeet Singh
and Ujjagar Singh discussed above it has become
very clear that deceased Smt. Lavjeet Kaur was
subjected to cruelty or harassment by the accused
persons for the demand of dowry right from the
beginning of her marriage till death. Even soon
before her death she was subjected to cruelty by
the accused persons when father of the deceased
could not pay a sum of Rs.30,000/- to accused
Sultan Singh 5/6 days prior to the death of
deceased. Deceased was married with accused
3Page 4
Sultan Singh on 27.2.1990 and she died on
17.6.1994 on account of burn injuries at the
matrimonial home. The fact that the deceased
died on account of burn injuries is well proved
from the medical evidence consisting of the
statements of Dr. S.K. Gupta who medico-legally
examined the deceased immediately on arrival at
Civil Hospital Ambala Cantt., and also of Dr.
Gajinder Yadav PW-3 who conducted the post
mortem examination of the dead body of
deceased. The deceased Smt. Lavjeet Kaur aged
about 22 years had suffered 70% burn injuries and
died on account of the same. Thus, it has been
well established that the death of deceased Smt.
Lavjeet Kaur was caused by burns and she died
unnatural death. It has also been established that
she died within a period of seven years of her
marriage. As already discussed by me that it has
also been established that the deceased was also
subjected to cruelty by the accused persons for
the demand of dowry soon before her death. Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.
The medical evidence as pointed out by the
learned defence counsel also does not help the
accused persons in any way. It has been deposed
by Dr. Gajinder Yadav that there were deep burns
on legs and chest of the deceased. It has come in
the statements of both the medical officers that
the deceased suffered 70% burn injuries and died
as a result thereof. It has been categorically
stated by Dr. Gajinder Yadav who conducted the
post-mortem examination that the deceased died
on account of burn injuries which were sufficient to
cause death in the ordinary course of nature. I fail
to understand as to what help the accused could
take from the statements of the medical officers
by pointing out that the Medical Officers have
deposed that there was no smell of kerosene from
the body and clothes of the deceased. If it was so
then it also smashes the defence version, because
if the deceased had caught fire by bursting of
stove then also there must be smell of kerosene oil
on her clothes. In my view, the smell of kerosene
might have evaporated in between the time of
occurrence till the post mortem examination
because the occurrence had taken place on
17.6.1994 at about noon time, whereas the post
mortem examination was conducted on 18.6.1994.
Further, the deceased was unconscious when she
was admitted in the hospital and therefore, it is
not known how the deceased could tell Dr. S.K.
5Page 6
Gupta that she had caught fire while working on a
stove. Another person from whom Dr. S.K. Gupta
derived this information was one Amar Nath a
private Medical practitioner, who accompanied the
deceased to the hospital. However, Shri Amar
Nath was not produced in defence to ascertain
whether he had told this fact to the Medical Officer
and if so how he acquired the said knowledge
whether from the deceased or otherwise.
Moreover, in the ruka Ex.PC sent by Dr. S.K. Gupta
to the police there is no mentioning of the bursting
of stove, nor it has been mentioned as to how he
learnt that the deceased caught fire while working
on a stove. It has simply been mentioned that the
deceased was alleged to have sustained burns
70% while working on a stove. The word ‘bursting’
is missing in this ruka, whereas, it was so stated by
Dr. S.K. Gupta when he appeared in the witness
box. If the story of bursting of stove came to his
knowledge it is not known why he omitted to
mention this fact in his ruka Ex. PC sent to the
police. Taking into consideration all the facts and
circumstances I am of the definite view that the
statement of Dr. S.K. Gupta to the effect that there
was the history of burns allegedly sustained by the
deceased due to bursting of stove while cooking
food is not legally sound because neither Amar
Nath was produced, nor deceased could speak
anything before her death.”
7. The appellant preferred an appeal. The High Court
upheld the conviction of the appellant while acquitting his
mother Mohinder Kaur, the co-accused, of the charge under
Section 304-B, IPC but upheld her conviction under Section
498A, IPC. It was observed that the allegation of demand of
dowry soon before the death was only against the appellant
and not against his mother. Rejecting the defence plea of
accidental burning, the High Court observed as under :
6Page 7
“The accused or their persons might have
accompanied Lavjeet Kaur to the hospital. The
accused are naturally interested to save
themselves from legal punishment and such as the
said history might have been given by them or
Amar Nath to save the accused. PW-2 Dr. S.K.
Gupta has no personal knowledge about the
occurrence and has stated that there was history
of burns sustained by Lavjeet Kaur due to bursting
of stove while cooking food. So, that history was
given by the accused or Amar Nath, accompanying
the injured to the hospital.
One another circumstance which militates against
the case of the accused is that the police found the
blood sustained Gadda in the room where the
occurrence is stated to have taken place and not
in the kitchen, as per stand of the accused. That
fact belied the stand of accused.
The statement of Dr. S.K. Gupta that history was
given by the patient does not appeal to reason.
The deceased was having 70% burn injuries and as
such she was not in a position to narrate the
occurrence. The police had no reason to change
the place of occurrence from the kitchen to the
room as shown in the rough site plan. There were
singeing of the skull hair of Lavjeet Kaur besides
having burn injuries on the chest and lower part of
the body. The fact of bursting of stove and giving
the case history by Lavjeet Kaur is not mentioned
by Dr. S.K. Gupta in the record. The doctor is not
supposed to orally know all the facts. It seems
that Dr. S.K. Gupta has stated that the history of
the case was given by the patient simply to favour
the accused, moreso when there is nothing in this
regard on the record. So, no reliance can be
placed on the statement made by Dr. S.K. Gupta,
in this regard.
PW-3 Dr. Gajinder Yadav, has stated that there
was probability of the deceased receiving burn
injuries by accidental fire but he has not stated it
with confidence that in all probability, the death
could be accidental, in the present case. That
doctor has not seen the other circumstantial
evidence at the spot before arriving at the
conclusion. So, the learned trial Court has rightly
held that Lavjeet Kaur, deceased, has died due to
7Page 8
unnatural injuries and not by accidental burn
injuries.”
8. We have heard learned counsel for the parties and
perused the evidence on the record.
9. The main question raised for our consideration is
whether the evidence of demand of dowry soon before the
death was reliable and whether it was a case of accidental
death as pleaded by the defence. The presumption under
Section 113B of the Indian Evidence Act is attracted only in
case of suicidal or homicidal death and not in case of an
accidental death.
10. We are unable to accept the submissions advanced on
behalf of the appellant.
11. The brother and father of the deceased have made
categorical allegation of demand of dowry which confirmed
almost upto the date of death. Even though version of PW 4,
brother of the deceased, and PW 5, father of the deceased,
may be exaggerated to the extent of saying that they saw
the accused and his mother causing burn injuries, there is no
reason to disbelieve their version with regard to demand of
dowry. It is true that in case of accidental death
presumption under Section 113B of the Indian Evidence Act
is not available but there is no reason to hold that in the
present case, the burn injuries were by accident.
12. Apart from the following reasons given by the trial
Court and the High Court, namely;
(i) The Investigating Officer found the plastic can
(Exhibit P-1) smelling kerosene oil and a half burnt
mattress (Exhibit P-2);
(ii) The burst stove was not found at the place of
occurrence as stated by the Investigating Officer;
(iii) The deceased suffered 70% burn injuries which was
held to be sufficient to cause death in the ordinary
course of injury, there are other reasons to reject the
plea of accident;
there are other reasons to support the findings.
12. While in the case of homicidal death, if the victim is
caught unaware, a person may not be able to make any
effort to save himself/herself and in case of suicidal burn
injuries a person may take all precautions not to save
himself/herself, in case of accidental burn injuries, victim
makes all possible efforts to save himself/herself which may
leave evidence to show that the death was accidental. Such
a person may raise alarm and try to escape. The
Investigating Officer visiting the scene of occurrence can
notice the available evidence by recreating the scene. In the
present case, there are no probabilities to support the
defence plea of accident, particularly when relations
9Page 10
between the deceased and the appellant were not
harmonious.
13. Thus, taking of plea by the accused to save
himself/herself is not enough. The contention in the present
case that PW 2-Dr. S.K. Gupta mentioned the history of burn
due to bursting of stove was given by the patient and one
Amar Nath who accompanied her is without any merit. In
the same statement the said witness states that the victim
was unfit to make a statement. Amar Nath, who is said to
have given this information, has not been examined by the
defence. Statement of Dr. S.K. Gupta that Amar Nath gave
this information is hearsay. Moreover, PW 2-Dr. S.K. Gupta
has been examined as an expert witness to give his opinion
about the health condition of the patient based on his
expertise. He is not a witness of fact. Similarly, contention
that PW 3-Dr. Gajinder Yadav who conducted the post
mortem made a statement in cross examination that there
was more probability of death being caused by accidental
fire as there was no smell of kerosene oil from the body of
the deceased and that the fire had started from the lower
parts of the body towards upper parts is equally without any
merit. Such statement of an expert witness without being
based on any specialized knowledge cannot be accepted.
1Page 11
The opinion of expert witness on technical aspects has
relevance but the opinion has to be based upon specialized
knowledge and the data on which it is based has to be found
acceptable by the Court. In Madan Gopal Kakkad
versus Naval Dubey.1
, it was observed as under :
“34. A medical witness called in as an expert to
assist the Court is not a witness of fact and the
evidence given by the medical officer is really of
an advisory character given on the basis of the
symptoms found on examination. The expert
witness is expected to put before the Court all
materials inclusive of the data which induced him
to come to the conclusion and enlighten the Court
on the technical aspect of the case by explaining
the terms of science so that the Court although,
not an expert may form its own judgment on those
materials after giving due regard to the expert’s
opinion because once the expert’s opinion is
accepted, it is not the opinion of the medical
officer but of the Court.
35. Nariman, J. in Queen v. Ahmed Ally.
2
, while
expressing his view on medical evidence has
observed as follows:
“The evidence of a medical man or other
skilled witnesses, however, eminent, as to
what he thinks may or may not have taken
place under particular combination of
circumstances, however, confidently, he may
speak, is ordinarily a matter of mere opinion.”
14. We may also note that the presumption under Section
113B of the Indian Evidence Act has been enacted to check
the menace of the dowry deaths and in appreciating the
evidence, the social background of the legislation cannot be
1
(1992) 3 SCC 204
2
(1998) 3 SCC 309
1Page 12
ignored. In Pawan Kumar vs. State of Haryana .
3
, it was
observed:
“11. It is true, as argued by learned counsel for
the appellants, that in criminal jurisprudence
benefit of doubt is extendable to the accused. But
that benefit of doubt would arise in the context of
the application of penal law, and in the facts and
circumstances of a case. The concept of benefit of
doubt has an important role to play but within the
confines of the stringency of laws. Since the cause
of death of a married woman was to occur not in
normal circumstances but as a “dowry death”, for
which the evidence was not so easily available, as
it is mostly confined within the four walls of a
house, namely the husband’s house, where all
likely accused reside. Hence the aforesaid
amendments brought in the concept of deemed
“dowry death” by the husband or the relatives, as
the case may be. This deeming clause has a role to
play and cannot be taken lightly and ignored to
shield an accused, otherwise the very purpose of
the amendment will be lost. Of course, the
prosecution has to prove the ultimate essential
ingredients beyond all reasonable doubt after
raising the initial presumption of “deemed dowry
death”.
12. Explanation to Section 304-B refers to dowry
“as having the same meaning as in Section 2 of
the 1961 Act”, the question is: what is the
periphery of the dowry as defined therein? The
argument is, there has to be an agreement at the
time of the marriage in view of the words “agreed
to be given” occurring therein, and in the absence
of any such evidence it would not constitute to be
a dowry. It is noticeable, as this definition by
amendment includes not only the period before
and at the marriage but also the period
subsequent to the marriage.
13. When words in a statute are referable to more
than one meaning, the established rule of
construction is found in Heydon’s case1 also
approved by this Court in Bengal Immunity Co. Ltd.
3
11 WR Cr. 25
v. State of Bihar2 AIR at p. 674. The rule is to
consider four aspects while construing an Act:
(a) what was the law prior to the law which is
sought to be interpreted;
(b) what was the mischief or defect for which
new law is made;
(c) what is the remedy the law now provides;
and
(d) what is the reason of the remedy.
14. The Court must adopt that construction which,
“suppresses the mischief and advances the
remedy”.
15. Applying this principle, it is clear that the
earlier law was not sufficient to check dowry
deaths hence aforesaid stringent provisions were
brought in, so that persons committing such
inhuman crimes on married women should not
escape, as evidence of a direct nature is not
readily available except of the circumstantial kind.
Hence it is that interpretation which suppresses
the mischief, subserves the objective and
advances the remedy, which would be acceptable.
The objective is that men committing such crimes
should not escape punishment. Hence stringent
provisions were brought in by shifting the burden
onto the accused by bringing in the deemed
clause. As aforesaid, the definition of “dowry” was
amended with effect from 19-11-1986, to include
the period even after the marriage.
16. The offence alleged against the appellants is
under Section 304-B IPC which makes “demand of
dowry” itself punishable. Demand neither
conceives nor would conceive of any agreement. If
for convicting any offender, agreement for dowry is
to be proved, hardly any offenders would come
under the clutches of law. When Section 304-B
refers to “demand of dowry”, it refers to the
demand of property or valuable security as
referred to in the definition of “dowry” under the
1961 Act. It was argued on behalf of the appellants
that mere demand of scooter or fridge would not
be a demand for dowry. We find from the evidence
on record that within a few days after the
marriage, the deceased was tortured, maltreated
1Page 14
and harassed for not bringing the aforesaid articles
in marriage. Hence the demand is in connection
with marriage. The argument that there is no
demand of dowry, in the present case, has no
force. In cases of dowry deaths and suicides,
circumstantial evidence plays an important role
and inferences can be drawn on the basis of such
evidence. That could be either direct or indirect. It
is significant that Section 4 of the 1961 Act, was
also amended by means of Act 63 of 1984, under
which it is an offence to demand dowry directly or
indirectly from the parents or other relatives or
guardian of a bride. The word “agreement”
referred to in Section 2 has to be inferred on the
facts and circumstances of each case. The
interpretation that the appellant seeks, that
conviction can only be if there is agreement for
dowry, is misconceived. This would be contrary to
the mandate and object of the Act. “Dowry”
definition is to be interpreted with the other
provisions of the Act including Section 3, which
refers to giving or taking dowry and Section 4
which deals with penalty for demanding dowry,
under the 1961 Act and the Indian Penal Code. This
makes it clear that even demand of dowry on other
ingredients being satisfied is punishable. This leads
to the inference, when persistent demands for TV
and scooter are made from the bride after
marriage or from her parents, it would constitute
to be in connection with the marriage and it would
be a case of demand of dowry within the meaning
of Section 304-B IPC. It is not always necessary
that there be any agreement for dowry.”
Again in Hira Lal vs. State (Govt. of NCT), Delhi .
4
, it
was observed as under :
8. Section 304-B IPC which deals with dowry
death, reads as follows:
“304-B. 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
4
(2003) 8 SCC 80
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.
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.”
The provision has application when 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
relatives of her husband for, or in connection with
any demand for dowry. In order to attract
application of Section 304-B IPC, the essential
ingredients are as follows:
(i) The death of a woman should be caused by
burns or bodily injury or otherwise than under a
normal circumstance.
(ii) Such a death should have occurred within
seven years of her marriage.
(iii) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
(iv) Such cruelty or harassment should be for or
in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have
been meted out to the woman soon before her
death.
Section 113-B of the Evidence Act is also relevant
for the case at hand. Both Section 304-B IPC and
Section 113-B of the Evidence Act were inserted as
noted earlier by Dowry Prohibition (Amendment)
Act 43 of 1986 with a view to combat the
increasing menace of dowry deaths. Section 113-B
reads as follows:
“113-B. 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 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.
Explanation.—For the purposes of this section,
‘dowry death’ shall have the same meaning as in
Section 304-B of the Indian Penal Code (45 of
1860).”
The necessity for insertion of the two provisions
has been amply analysed by the Law Commission
of India in its 21st Report dated 10-8-1988 on
“Dowry Deaths and Law Reform”. Keeping in view
the impediment in the pre-existing law in securing
evidence to prove dowry-related deaths, the
legislature thought it wise to insert a provision
relating to presumption of dowry death on proof of
certain essentials. It is in this background that
presumptive Section 113-B in the Evidence Act has
been inserted. As per the definition of “dowry
death” in Section 304-B IPC and the wording in the
presumptive Section 113-B of the Evidence Act,
one of the essential ingredients, amongst others,
in both the provisions is that the woman
concerned must have been “soon before her
death” subjected to cruelty or harassment “for or
in connection with the demand of dowry”.
Presumption under Section 113-B is a presumption
of law. On proof of the essentials mentioned
therein, it becomes obligatory on the court to raise
a presumption that the accused caused the dowry
death. The presumption shall be raised only on
proof of the following essentials:
(1) The question before the court must be
whether the accused has committed the dowry
death of the woman. (This means that the
presumption can be raised only if the accused is
being tried for the offence under Section 304-B
IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before
her death.
9. A conjoint reading of Section 113-B of the
Evidence Act and Section 304-B IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to
bring it within the purview of “death occurring
otherwise than in normal circumstances”. The
expression “soon before” is very relevant where
Section 113-B of the Evidence Act and Section
304-B IPC are pressed into service. The
prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence
in that regard has to be led by the prosecution.
“Soon before” is a relative term and it would
depend upon the circumstances of each case and
no straitjacket formula can be laid down as to what
would constitute a period of soon before the
occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a
proximity test both for the proof of an offence of
dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The
expression “soon before her death” used in the
substantive Section 304-B IPC and Section 113-B
of the Evidence Act is present with the idea of
proximity test. No definite period has been
indicated and the expression “soon before” is not
defined. A reference to the expression “soon
before” used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court
may presume that a man who is in the possession
of goods “soon after the theft, is either the thief or
has received the goods knowing them to be stolen,
unless he can account for their possession”. The
determination of the period which can come within
the term “soon before” is left to be determined by
the courts, depending upon facts and
circumstances of each case. Suffice, however, to
indicate that the expression “soon before” would
normally imply that the interval should not be
much between the cruelty or harassment
concerned and the death in question. There must
be existence of a proximate and live link between
the effect of cruelty based on dowry demand and
the death concerned. If the alleged incident of
cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of
the woman concerned, it would be of no
consequence.
15. Having regard to the entirety of material, we do not
find any ground to interfere with the concurrent finding
recorded by the courts below that it was not a case of
accidental death but a death taking place in circumstances
other than normal. Thus, the presumption under Section
113B of the Indian Evidence Act has been rightly invoked
and the offence against the appellant has been proved.
There is no tangible circumstance to rebut the presumption.
17. For the above reasons, we do not find any merit in this
appeal. The appeal is dismissed. The appellant who is on
bail is directed to surrender to custody to undergo the
remaining sentence.
……..…………………………….J.
[ V. GOPALA GOWDA ]
.….………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 26, 2014
