Patna High Court
Prasadi Sao and Ors.versusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction under Sections 304B/34 and 498A IPC was set aside because the prosecution failed to prove the offences beyond reasonable doubt.
Summary
The appellants were convicted under Sections 304B/34 and 498A IPC for the alleged dowry‑related death of Kajal Devi, who was said to have been assaulted by her in‑laws after demanding Rs 50,000. The prosecution’s case relied mainly on the testimonies of the deceased’s brother and mother, with no independent witnesses, medical evidence, or post‑mortem report, and there was a four‑month delay in filing the FIR. The appellate court examined the statutory requirements for Sections 304B and 498A, the presumption under Section 113‑B of the Evidence Act, and the significance of the delay and lack of corroboration. Finding that the prosecution failed to prove the essential ingredients of the offences beyond reasonable doubt, the court set aside the conviction, acquitted the appellants, and ordered the appeal allowed.
Issues considered
- The prosecution must establish all essential ingredients of Section 304B IPC (dowry death) beyond reasonable doubt.
- The prosecution must establish all essential ingredients of Section 498A IPC (cruelty) beyond reasonable doubt.
- Whether the presumption under Section 113‑B of the Evidence Act can be invoked given the four‑month delay in filing the FIR and lack of independent evidence.
- Whether the trial court erred in relying solely on the testimonies of the deceased’s relatives without corroborative medical or independent witness evidence.
Legislation cited
- Code of Criminal Procedure — s. 156(3), 161, 313
- Dowry Prohibition Act, 1961
- Indian Evidence Act, 1872 — s. 113-B
- Indian Penal Code — s. 304B, 34, 498A
Subjects
- dowry death
- Section 304B IPC
- Section 498A IPC
- presumption under Section 113-B
- delay in FIR
- acquittal
- evidence evaluation
- criminal appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.291 of 2013
Arising Out of PS. Case No.-32 Year-2009 Thana- LAKHISARAI District- Lakhisarai
======================================================
1. Prasadi Sao, S/o Late Sanichar Sao
2. Meena Devi @ Sagar Devi @ Neesha Devi W/O Sri Prasadi Sao
3. Rajesh Sao S/O Sri Prasadi Sao
4. Kabita Devi @ Babita Devi D/O Sri Prasadi Sao
All arr resident of Village - Mahisona, P.S, Distt. - Lakhisarai
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Sarandha Suman, Amicus Curiae
For the Respondent/s : Mr. S. N. Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date- 09.07.2026
Heard Ms. Sarandha Suman, learned Amicus
Curiae and Mr. S .N. Prasad, learned APP for the State.
2. The present appeal is directed against the
judgment of conviction dated 08.04.2013 and order of sentence
dated 09.04.2013 passed by the learned Adhoc Addl. District &
Sessions Judge-II, Civil Court, Lakhisarai in S.C. No. 182/2010
arising out of Lakhisarai P.S. Case No. 32/2009, whereby and
whereunder, the appellants have been convicted for the offences
under Section 304 B/34 and 498A of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for ten years under
Sections 304B/34 of the Indian Penal Code and rigorous
imprisonment for three years under Section 498-A of the Indian
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Penal Code with a fine of Rs. 2,000/-, each and in default of
payment of fine, to undergo further imprisonment for one
month.
BRIEF FACTS OF THE CASE
3. The prosecution case, in brief is, that the father
of the deceased had filed a complaint petition before the learned
Chief Judicial Magistrate, Lakhisarai, alleging that on
17.09.2008 at about 10:00 A.M., his daughter, Kajal Devi
(deceased), informed him over his mobile phone that her in-laws
were demanding a sum of Rs. 50,000/- as dowry and when she
became pregnant they had threatened to kill as having not
fulfilled the demand of dowry. The complainant just after
having been informed, he along with other persons, went to
Village Mahisona on 17.09.2008 at about 2:00 P.M. and
requested the accused persons not to press for the dowry
demand, expressing his inability to arrange the amount as a
result of which, the accused persons assaulted Kajal Devi
(deceased) by fists and slaps in their presence, causing serious
injuries, upon which, she became unconscious and while she
was being taken for medical treatment, she succumbed to her
injuries on the way on 18.09.2008.
4. A complaint petition was filed by the
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complainant before the learned Chief Judicial Magistrate,
Lakhisarai, registered as Complaint Case No. 514(C) of 2008.
The learned Magistrate forwarded it on 16.10.2008 to the police
for investigation under Section 156(3) of the Code of Criminal
Procedure. Pursuant thereto, Lakhisarai P.S. Case No. 32 of
2009 dated 21.01.2009 was instituted for the offences
punishable under Sections 498A and 304B read with Section 34
of the Indian Penal Code.
5. Upon completion of investigation and
considering the unnatural death of the victim, charge-sheet was
submitted against the accused persons under Sections 304-B,
201 /34 of IPC on 31.10.2009, whereupon, cognizance was
taken and the case was committed to the Court of Sessions for
trial, upon which completion, all the accused were convicted
leading to the filing of the present appeal.
ARGUMENT ON BEHALF OF THE AMICUS
CURIAE
6. Learned Amicus curiae submitted that the
prosecution case suffers from serious infirmities and is liable to
be rejected on account of the unexplained delay in institution of
the criminal case. It is contended that the alleged occurrence had
taken place on 18.09.2008, whereas, the F.I.R. came to be
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registered only on 22.01.2009 at 3:00 P.M. on the basis of a
complaint petition dated 13.10.2008. The distance of police
station is just about two kilometers from the place of occurrence
(the house of the complainant) and there was no circumstance
preventing him from approaching the police immediately after
the occurrence. The complaint petition suffers from any
satisfactory explanation about the extraordinary delay of nearly
four months. According to learned counsel, the unexplained
delay casts a serious doubt upon the truthfulness of the
prosecution story and gives rise to a reasonable inference that
the allegations were developed after due deliberation with an
ulterior motive to falsely implicate the appellants. Learned
counse further submitted that the prosecution deliberately
withheld material and independent witnesses. The complainant
had admitted that several persons accompanied him to the
matrimonial home of the deceased on 17.09.2008, but none of
those witnesses were examined during trial. The Investigating
Officer (P.W.3) admitted that he had recorded statements of
independent witnesses under Section 161 Cr.P.C., who had
disclosed that the deceased was pregnant, suffered sudden
abdominal pain and died while being taken to the hospital, and
that the brother of the deceased was present at the place of
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cremation and had participated in the funeral procession.
Despite the availability of such crucial witnesses, the
prosecution failed to examine them without assigning any
reason. The further case of the appellant is that the non-
examination of the complainant, who was the author of the
complaint and a material witness has caused serious prejudice to
the defence, as it deprived the appellants of the opportunity to
cross-examine him regarding the delay in lodging the complaint
and the contradictions between the complaint petition and the
evidence of P.Ws. 1 and 2.
7. Learned counsel further submitted that the
prosecution also failed to establish any prior demand of dowry,
cruelty or harassment during the six years of matrimonial life of
the deceased. The evidence of P.W.1 and P.W.2 reveals that the
marriage between the deceased and appellant Rajesh Sao was
solemnized in the year 2003 and a daughter aged about six years
was born out of the wedlock and there was no complaint was
ever lodged either before the police or any proceeding was
initiated before any court alleging dowry demand or ill-
treatment prior to the alleged occurrence. It has submitted that
on the contrary, P.W.2 categorically admitted that none of the
accused persons had ever demanded dowry from her, while
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P.W.1 also acknowledged that no such complaint had been made
at any earlier point of time. In these circumstances, the case of
the appellant is that the allegation of dowry demand raised even
whithin seven years of marriage appears highly improbable and
unnatural. Learned counsel has emphasized that the conduct of
the appellants was wholly inconsistent with that of guilty
persons. The evidence of P.W.1 and P.W.2 clearly shows that
immediately after the deceased fell ill, the appellants took her to
the hospital and the brother of the deceased also remained
present in the vehicle throughout. Such conduct, according to
the defence, demonstrates their concern for the deceased and
negates any intention either to cause her death or had ever
subjected her to cruelty immediately before the death. It is the
case of the appellant that the essential ingredients of Section
304-B/34 of the Indian Penal Code, particularly the requirement
of cruelty or harassment in connection with dowry demand soon
before the death, having been not established beyond all
reasonable doubt, the appellants are entitled to be acquitted.
ARGUMENT ON BEHALF OF THE STATE
8. Per Contra, learned APP appearing for the State
while opposing the appeal submitted that the learned District
court, after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial has
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erred no mistake in convicting the appellant for the offences
under Sections 304B/34 and 498-A of the Indian Penal Code.
ANALYSIS AND CONCLUSION
9. Heard the parties.
10. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
11. The learned trial court, on the basis of materials
as collected during the course of investigation, passed the
judgment of conviction dated 08.04.2013 and order of sentence
dated 09.04.2013 for the offence punishable under Sections
498A and 304 B/34 of the Indian Penal Code.
12. During the trial, the prosecution has examined
altogether three witnesses, namely:
1) P.W.1 – Tuntun Sao (brother of the deceased)
2) P.W.2 – Usha Devi (mother of the deceased)
3) P.W.3 – Nilambar Jha (Investigating Officer)
13. The prosecution has also relied upon following
documents exhibited during the course of trial:
(i) Ext.-1 – Formal First Information Report (Formal
FIR)
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(ii) Ext.-2 –Charge-sheet submitted after investigation
(iii) Exhibit-A/1 to A/8 (Defence Exhibits) - Eight
photographs produced on behalf of the defence
14. Upon a meticulous examination of the record,
the evidence of the prosecution witnesses (PWs) can be
summarised as follows:
P.W.1 – Tuntun Sao stated that the deceased Kajal
Devi was his sister and her marriage was solemnized with
accused Rajesh Sao in the year 2003. According to him, after
the birth of a daughter, the accused persons, namely, Prasadi Sao
(father-in-law), Rajesh Sao (husband), Meena Devi (mother-in-
law) and Babita Devi (sister-in-law), started demanding
Rs.50,000/- from Kajal Devi and subjected her to cruelty and
assault on account of non-fulfilment of the said demand. He
deposed that the accused persons used to assault Kajal Devi by
kicks, fists and stick blows and had assaulted her on the
stomach. He further stated that on 18.09.2008, he saw the
accused persons taking Kajal Devi in a vehicle for treatment. He
was also made to sit in the vehicle and while Kajal Devi was
being taken for treatment, she died near Pachna Road.
Thereafter, according to him, the accused persons cremated the
dead body on the bank of river Kiul.
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In cross-examination, he stated that his father had
instituted the case. He could not state the exact period after
which the case was filed or his statement was recorded during
investigation. He admitted that two months prior to the
occurrence, the accused persons had assaulted his sister. He
denied the defence suggestion that Kajal Devi died due to illness
while being taken for treatment. He further stated that his niece
Manisha Kumari was residing with them and alleged that the
accused persons were not willing to give her any share or rights.
P.W.2 – Usha Devi, the mother of the deceased,
deposed that Kajal Devi was married to accused Rajesh Sao in
the year 2003 and out of the wedlock a daughter, namely
Manisha Kumari, was born. She stated that at the relevant time
Kajal Devi was pregnant. According to her, the accused persons
demanded Rs.50,000/- and subjected Kajal Devi to cruelty for
non-fulfilment of the said demand. She deposed that upon
receiving information from Kajal Devi, she went to her
matrimonial home and requested the accused persons that they
were not in a position to pay the demanded amount. Thereupon,
according to her, the accused persons assaulted Kajal Devi by
kicks and fists and also hit her on the stomach despite her
pregnancy. She further stated that on the next day, while Kajal
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Devi was being taken for treatment, she died on the way.
In cross-examination, she stated that she had visited
the matrimonial home of Kajal Devi on the day preceding her
death. She explained that no report was lodged earlier because
Kajal Devi had restrained her from doing so. She further stated
that the incident of assault had been disclosed to the villagers.
She maintained that Kajal Devi was assaulted in her presence
and that she also sustained injuries while trying to save her
daughter. She denied the defence suggestion that Kajal Devi
died on account of any pre-existing illness.
P.W.3 – Nilambar Jha (Investigating Officer) stated
that he took over the investigation of the case and proved the
formal First Information Report and the charge-sheet. He
deposed that during investigation he inspected the place of
occurrence, recorded the statements of witnesses and, finding
the allegations to be true, submitted charge-sheet against the
accused persons.
In cross-examination, he admitted that certain facts
stated by P.W.2 before the Court were not found recorded in her
statement under Section 161 Cr.P.C. He further stated that he
had also recorded the statements of some other witnesses during
investigation. After completion of investigation, he submitted
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charge-sheet against the accused persons.
15. On the basis of materials surfaced during the
trial, the appellants/accused was examined under Section 313 of
the Cr.PC by putting incriminating circumstances/evidences
surfaced against him, which he denied and shows his complete
innocence.
LAW GOVERNING DEMAND OF DOWRY
AND DOWRY DEATH
16. I find it appropriate to reproduce the provisions of
Sections 498 A and 304B/34 of the Indian Penal Code for the
sake of convenience and better understanding:
“498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to
three years and shall also be liable to
fine.Explanation.— For the purpose of this section,
“cruelty” means—
(a)any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment
is with a view to coercing her or any person related
to her to meet any unlawful demand for any
property or valuable security or is on account of
failure by her or any person related to her to meet
such demand.
“Sections 304B- 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
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or any relative of her husband for, or in connection with,
any demand for dowry, such death shall be called
“dowry death”, and such husband or relative shall be
deemed to have caused her death.Explanation.— For the
purpose of this sub-section, “dowry” shall have the same
meaning as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).”
17. The present is a case in which allegation is
under Section 304 B and 498 IPC. I proceed first to analyze the
essential ingredients for attracting the offence under Sections
498-A and 304-B IPC, as consistently laid down by the Hon’ble
Supreme Court, require the following conditions to be
cumulatively satisfied:
The essential ingredients of the offence under
Section 498-A IPC are:
(i) that the accused is the husband of the woman or
a relative of her husband;
(ii) that the woman was subjected to cruelty by the
accused;
(iii) that such cruelty consisted of any wilful
conduct of such a nature as was likely to drive the woman to
commit suicide or to cause grave injury or danger to her life,
limb or health (whether mental or physical); or
(iv) that such cruelty consisted of harassment with a
view to coercing the woman or any person related to her to meet
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any unlawful demand for any property or valuable security, or
on account of failure by the woman or her relatives to meet such
unlawful demand, And it is only upon the prosecution proving
the existence of the aforesaid essential ingredients beyond
reasonable doubt that an offence punishable under Section 498-
A IPC can be said to have been established.
18. The Hon'ble Supreme Court, in case of Onkar
Nath Mishra & Ors. v. State (NCT of Delhi) & Anr., reported
in (2008) 2 SCC 561, has held that "cruelty" within the meaning
of Section 498-A IPC contemplates either (i) any wilful conduct
of such a nature as is likely to drive a woman to commit suicide
or to cause grave injury dangerous to her life, limb or health,
whether mental or physical; or (ii) harassment of the woman
with a view to coercing her or any person related to her to meet
any unlawful demand for property or valuable security, or on
account of failure to meet such demand. The relevant
observations of the Hon'ble Supreme Court are reproduced
hereinafter:
“17. The term cruelty, which
has been made punishable under Section
498A I.P.C. has been defined in the
Explanation appended to the said Section, to
mean: (i) any wilful conduct which is of such
a nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health whether mental
or physical of the woman; or (ii) harassment
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of the woman where such harassment is with
a view to coercing her or any person related
to her to meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.
Therefore, the consequences of cruelty,
which are either likely to drive a woman to
commit suicide or to cause grave injury,
danger to life, limb or health, whether
mental or physical of the woman or the
harassment of a woman, where such
harassment is with a view to coercing her or
any person related to her to meet any
unlawful demand are required to be
established in order to bring home an
offence under Section 498A I.P.C.”
19. The essential ingredients of the offence under
Section 304-B of IPC are:
(i) that the death of a woman has been caused by
burns or bodily injury or has occurred otherwise than under
normal circumstances;
(ii) that such death has occurred within a period of
seven years of her marriage;
(iii) that the deceased was subjected to cruelty or
harassment by her husband or his relatives soon before her
death; and
(iv) that such cruelty or harassment was in
connection with, or in furtherance of, a demand for dowry and it
is only upon the strict establishment of all the aforesaid
ingredients that the offence under Section 304-B IPC can be
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said to be made out and the presumption under Section 113-B of
the Evidence Act can be invoked.
20. Law in this regard is well settled by the Apex
Court in case of Rajinder Singh v. State of Punjab, (2015) 6
SCC 477 that agreeing to give and receive dowry can be at
before, or anytime after the marriage is a social evil and the
cruelty and harassment differs from case to case, therefore,
subjecting to harassment and cruelty soon before death is a
relevant term. The matter of emotion cannot have fixed formula.
Section 114 of the Evidence Act implies that the interval should
not be too long between the time of making the statement and
the death. Following paragraphs may be referred inter alia in
this regard:
8. A perusal of Section 2 shows that this
definition can be broken into six distinct parts:
(1) Dowry must first consist of any
property or valuable security— the word “any” is a
word of width and would, therefore, include within it
property and valuable security of any kind
whatsoever.
(2) Such property or security can be
given or even agreed to be given. The actual giving
of such property or security is, therefore, not
necessary.
(3) Such property or security can be
given or agreed to be given either directly or
indirectly.
(4) Such giving or agreeing to give can
again be not only by one party to a marriage to the
other but also by the parents of either party or by
any other person to either party to the marriage or
to any other person. It will be noticed that this
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clause again widens the reach of the Act insofar as
those guilty of committing the offence of giving or
receiving dowry is concerned.
(5) Such giving or agreeing to give can
be at any time. It can be at, before, or at any time
after the marriage. Thus, it can be many years after
a marriage is solemnised.
(6) Such giving or receiving must be in
connection with the marriage of the parties.
Obviously, the expression “in connection with”
would in the context of the social evil sought to be
tackled by the Dowry Prohibition Act mean “in
relation with” or “relating to”.
9. The ingredients of the offence under
Section 304-B IPC have been stated and restated in
many judgments. There are four such ingredients
and they are said to be:
(a) death of a woman must have been
caused by any burns or bodily injury or her death
must have occurred otherwise than under normal
circumstances;
(b) such death must have occurred
within seven years of her marriage;
(c) soon before her death, she must have
been subjected to cruelty or harassment by her
husband or any relative of her husband; and
(d) such cruelty or harassment must be
in connection with the demand for dowry.
21. Coming now to the other important
ingredient of Section 304-B—what exactly is meant
by “soon before her death”?
22. This Court in Surinder Singh v. State
of Haryana [(2014) 4 SCC 129 : (2014) 4 SCC (Cri)
769] had this to say : (SCC pp. 137-39, paras 17-
18)22. This Court in Surinder Singh v. State of
Haryana [(2014) 4 SCC 129 : (2014) 4 SCC (Cri)
769] had this to say : (SCC pp. 137-39, paras 17-
18)
17. “Thus, the words ‘soon before’
appear in Section 113-B of the Evidence Act, 1872
and also in Section 304-B IPC. For the
presumptions contemplated under these sections to
spring into action, it is necessary to show that the
cruelty or harassment was caused soon before the
death. The interpretation of the words ‘soon before’
is, therefore, important. The question is how ‘soon
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before’? This would obviously depend on the facts
and circumstances of each case. The cruelty or
harassment differs from case to case. It relates to
the mindset of people which varies from person to
person. Cruelty can be mental or it can be physical.
Mental cruelty is also of different shades. It can be
verbal or emotional like insulting or ridiculing or
humiliating a woman. It can be giving threats of
injury to her or her near and dear ones. It can be
depriving her of economic resources or essential
amenities of life. It can be putting restraints on her
movements. It can be not allowing her to talk to the
outside world. The list is illustrative and not
exhaustive. Physical cruelty could be actual beating
or causing pain and harm to the person of a woman.
Every such instance of cruelty and related
harassment has a different impact on the mind of a
woman. Some instances may be so grave as to have
a lasting impact on a woman. Some instances which
degrade her dignity may remain etched in her
memory for a long time. Therefore, ‘soon before’ is
a relative term. In matters of emotions we cannot
have fixed formulae. The time-lag may differ from
case to case. This must be kept in mind while
examining each case of dowry death.
18. In this connection we may refer to the judgment
of this Court in Kans Raj v. State of Punjab [(2000)
5 SCC 207 : 2000 SCC (Cri) 935] where this Court
considered the term ‘soon before’. The relevant
observations are as under : (SCC pp. 222-23, para
15)
‘15. … “Soon before” is a relative term which is
required to be considered under specific
circumstances of each case and no straitjacket
formula can be laid down by fixing any time-limit.
This expression is pregnant with the idea of
proximity test. The term “soon before” is not
synonymous with the term “immediately before”
and is opposite of the expression “soon after” as
used and understood in Section 114, Illustration (a)
of the Evidence Act. These words would imply that
the interval should not be too long between the time
of making the statement and the death. It
contemplates the reasonable time which, as earlier
noticed, has to be understood and determined under
the peculiar circumstances of each case. In relation
to dowry deaths, the circumstances showing the
existence of cruelty or harassment to the deceased
are not restricted to a particular instance but
normally refer to a course of conduct. Such conduct
may be spread over a period of time. If the cruelty
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or harassment or demand for dowry is shown to
have persisted, it shall be deemed to be “soon
before death” if any other intervening circumstance
showing the non-existence of such treatment is not
brought on record, before such alleged treatment
and the date of death. It does not, however, mean
that such time can be stretched to any period.
Proximate and live link between the effect of cruelty
based on dowry demand and the consequential
death is required to be proved by the prosecution.
The demand of dowry, cruelty or harassment based
upon such demand and the date of death should not
be too remote in time which, under the
circumstances, be treated as having become stale
enough.’
Thus, there must be a nexus between the demand of
dowry, cruelty or harassment, based upon such
demand and the date of death. The test of proximity
will have to be applied. But, it is not a rigid test. It
depends on the facts and circumstances of each case
and calls for a pragmatic and sensitive approach of
the court within the confines of law.”
17. “Thus, the words ‘soon before’ appear in
Section 113-B of the Evidence Act, 1872 and also in
Section 304-B IPC. For the presumptions
contemplated under these sections to spring into
action, it is necessary to show that the cruelty or
harassment was caused soon before the death. The
interpretation of the words ‘soon before’ is,
therefore, important. The question is how ‘soon
before’? This would obviously depend on the facts
and circumstances of each case. The cruelty or
harassment differs from case to case. It relates to
the mindset of people which varies from person to
person. Cruelty can be mental or it can be physical.
Mental cruelty is also of different shades. It can be
verbal or emotional like insulting or ridiculing or
humiliating a woman. It can be giving threats of
injury to her or her near and dear ones. It can be
depriving her of economic resources or essential
amenities of life. It can be putting restraints on her
movements. It can be not allowing her to talk to the
outside world. The list is illustrative and not
exhaustive. Physical cruelty could be actual beating
or causing pain and harm to the person of a woman.
Every such instance of cruelty and related
harassment has a different impact on the mind of a
woman. Some instances may be so grave as to have
a lasting impact on a woman. Some instances which
degrade her dignity may remain etched in her
memory for a long time. Therefore, ‘soon before’ is
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a relative term. In matters of emotions we cannot
have fixed formulae. The time-lag may differ from
case to case. This must be kept in mind while
examining each case of dowry death.
18. In this connection we may refer to the judgment
of this Court in Kans Raj v. State of Punjab [(2000)
5 SCC 207 : 2000 SCC (Cri) 935] where this Court
considered the term ‘soon before’. The relevant
observations are as under : (SCC pp. 222-23, para
15)
‘15. … “Soon before” is a relative term which is
required to be considered under specific
circumstances of each case and no straitjacket
formula can be laid down by fixing any time-limit.
This expression is pregnant with the idea of
proximity test. The term “soon before” is not
synonymous with the term “immediately before”
and is opposite of the expression “soon after” as
used and understood in Section 114, Illustration (a)
of the Evidence Act. These words would imply that
the interval should not be too long between the time
of making the statement and the death. It
contemplates the reasonable time which, as earlier
noticed, has to be understood and determined under
the peculiar circumstances of each case. In relation
to dowry deaths, the circumstances showing the
existence of cruelty or harassment to the deceased
are not restricted to a particular instance but
normally refer to a course of conduct. Such conduct
may be spread over a period of time. If the cruelty
or harassment or demand for dowry is shown to
have persisted, it shall be deemed to be “soon
before death” if any other intervening circumstance
showing the non-existence of such treatment is not
brought on record, before such alleged treatment
and the date of death. It does not, however, mean
that such time can be stretched to any period.
Proximate and live link between the effect of cruelty
based on dowry demand and the consequential
death is required to be proved by the prosecution.
The demand of dowry, cruelty or harassment based
upon such demand and the date of death should not
be too remote in time which, under the
circumstances, be treated as having become stale
enough.’
Thus, there must be a nexus between the demand of
dowry, cruelty or harassment, based upon such
demand and the date of death. The test of proximity
will have to be applied. But, it is not a rigid test. It
depends on the facts and circumstances of each case
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and calls for a pragmatic and sensitive approach of
the court within the confines of law.”
(Emphasis supplied)
21. Similar view was taken by the Apex Court in case
of State of Madhya Pradesh vs. Jogendra and Anr. reported in
(2022) 5 SCC 401.
22. The Section 304 B of the Indian Penal Code is,
therefore, required to be considered in the background of the
facts and material in the context of the above view of the Apex
Court, the moot question which arises is whether in the present
case, soon before the death offence under Section 498A, 304B
of Indian Penal Code is made out?
23. The record reveals that the victim was a married
woman. The accused are husband and relatives of the deceased,
who was allegedly subjected to cruelty by them. The evidence
in respect of the alleged cruelty and harassment was reported
before the police by registering case against them. From the
perusal of the records and facts and circumstances of the present
case and in light of consistent observation and the view of the
Court and the expression “dowry” under Section 304-B IPC
must receive a broad and purposive construction so as to
effectuate the legislative intent of eradicating the social evil of
dowry deaths, and any demand for money or valuable security
having a nexus with the marital relationship, even if made
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subsequent to the marriage, would fall within its sweep;
however, for the presumption under Section 113-B of the
Evidence Act to arise, the prosecution is obligated to establish,
by cogent and reliable evidence, that the deceased was subjected
to cruelty or harassment in connection with such demand “soon
before her death” and that there existed a proximate and live
link between the alleged cruelty and the death and in the
absence of such foundational facts, mere general or omnibus
allegations would not suffice to sustain a conviction under
Section 304-B IPC, and the Court must, therefore, exercise due
circumspection in evaluating the evidence so as to ensure that
the statutory presumption is not invoked in a mechanical
manner but only upon strict satisfaction of the requirements
contemplated by law.
24. The record reveals that the prosecution
examined only three witnesses during trial, namely, P.W.-1
Tuntun Sao, P.W.-2 Usha Devi and P.W.-3 Nilambar Jha, the
Investigating Officer. P.W.-1 Tuntun Sao, who is the brother of
the deceased Kajal Devi, was admittedly not an eyewitness to
the alleged assault said to have taken place at the matrimonial
home of the deceased. His testimony is primarily based upon
what he had learnt from the deceased and other family
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members. Though he deposed regarding the alleged demand of
Rs.50,000/- by the accused persons and stated that the deceased
was subjected to cruelty and assault on account of non-
fulfillment of the said demand, he admitted in cross-
examination that he had not gone to the matrimonial home of
the deceased on the date of the alleged occurrence. His
evidence, therefore, remains largely hearsay in nature so far as
the alleged assault immediately preceding the death of the
deceased is concerned. P.W.-2 Usha Devi, the mother of the
deceased, claimed to be an eyewitness to the alleged assault and
stated that on receiving information from the deceased she had
gone to her matrimonial home, where the accused persons
allegedly assaulted Kajal Devi and demanded Rs.50,000/-. She
further stated that the deceased, who was pregnant at the
relevant time, was assaulted by kicks and fists and was struck on
her stomach. However, her testimony suffers from material
omissions and improvements, as the Investigating Officer (P.W.-
3) admitted during cross-examination that several material facts
narrated by P.W.-2 before the Court were not found recorded in
her statement made during investigation. P.W.-3 Nilambar Jha,
being the Investigating Officer, is only a formal witness who
proved the formal FIR and charge-sheet and deposed regarding
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the steps taken during investigation. He admittedly had no
personal knowledge of the occurrence and his evidence is
confined to the investigation conducted by him. Thus, except for
the interested testimonies of P.W.-1 and P.W.-2, who are the
brother and mother of the deceased respectively, no independent
witness was examined by the prosecution to support the
allegations of demand of dowry, cruelty, or assault. The
informant himself was not examined during trial. Furthermore,
no medical evidence, post-mortem report, or testimony of any
doctor was brought on record to establish the cause of death of
Kajal Devi or to corroborate the allegation that she succumbed
to injuries allegedly inflicted by the accused persons.
Consequently, the evidence of the prosecution witnesses
requires careful scrutiny and cannot be accepted without
independent corroboration for establishing the charges under
Sections 498-A and 304-B of the Indian Penal Code against the
accused/appellants.
25. The conviction of the appellants has been founded
principally upon the testimonies of P.W.-1 Tuntun Sao and P.W.-
2 Usha Devi, who are the brother and mother of the deceased
Kajal Devi respectively. These witnesses have deposed that the
deceased was married to appellant Rajesh Sao in the year 2003
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and was subjected to cruelty and harassment by the appellants
on account of a demand of Rs.50,000/-. According to them, the
deceased had informed her parental family that the accused
persons were pressurizing her to bring the said amount from her
parents and were subjecting her to physical and mental torture
on account of non-fulfilment of the demand. P.W.-2 Usha Devi
further claimed that upon receiving information from the
deceased, she visited her matrimonial home and witnessed the
accused persons assaulting Kajal Devi by kicks and fists and
causing injuries on her stomach while she was pregnant. Both
P.W.-1 and P.W.-2 have further stated that on the following day
the deceased was being taken for medical treatment by the
accused persons when she died on the way. The prosecution
version also finds support from the testimony of P.W.-3
Nilambar Jha, the Investigating Officer, who, after recording the
statements of witnesses and conducting investigation, found the
allegations to be true and submitted charge-sheet against the
accused persons. Thus, the testimonies of P.W.-1 and P.W.-2
regarding the alleged demand of Rs.50,000/-, cruelty and assault
meted out to the deceased shortly before her death, coupled with
the evidence of P.W.-3 regarding the investigation conducted by
him, constitute the principal basis on which the conviction of
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the accused/appellants has been recorded by the learned Trial
Court. However, it is noteworthy that no independent witness to
the alleged occurrence was examined, the informant himself
was not produced during trial, and no medical or post-mortem
evidence was adduced by the prosecution to establish the cause
of death of Kajal Devi.
26. It is observed that the prosecution case rests
substantially upon the testimonies of P.W.-1 Tuntun Sao and
P.W.-2 Usha Devi, who are the brother and mother of the
deceased Kajal Devi respectively. Both these witnesses have
consistently deposed that the deceased was subjected to cruelty
and harassment by the accused persons on account of a demand
of Rs.50,000/- and that shortly before her death she was
physically assaulted by the accused persons. P.W.-2 Usha Devi
specifically stated that she had visited the matrimonial home of
the deceased and had witnessed the accused persons assaulting
Kajal Devi by kicks and fists and causing injuries on her
stomach while she was pregnant. P.W.-1 also supported the
prosecution case regarding the alleged demand of money and
harassment meted out to the deceased and further stated that the
deceased died while being taken for treatment by the accused
persons. Their evidence receives formal support from P.W.-3
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Nilambar Jha, the Investigating Officer, who, upon completion
of investigation, found the allegations to be true and submitted
charge-sheet against the accused persons. The learned trial court
further relied upon the circumstance that the marriage of the
deceased had taken place in the year 2003 and her death
occurred in the year 2008, i.e., within seven years of marriage.
The trial court also accepted the prosecution version that the
deceased had been subjected to cruelty and harassment in
connection with the demand of Rs.50,000/- immediately prior to
her death and held that such demand constituted dowry-related
harassment. On the basis of the oral evidence of P.W.-1 and
P.W.-2 and the investigation conducted by P.W.-3, the learned
trial court concluded that the deceased had died an unnatural
death within seven years of marriage after being subjected to
cruelty and harassment in connection with a demand for money
soon before her death. Accordingly, invoking the presumption
available under Section 113-B of the Evidence Act and holding
that the defence had failed to establish its plea that the deceased
had died due to illness, the learned trial court recorded the
conviction of the appellants under Sections 498-A/34 and 304-
B/34 of the Indian Penal Code. However, it is noteworthy that
neither the informant was examined during trial, nor was any
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medical evidence or doctor, who performed post-mortem and
prepared the report were examined to establish the cause of
death of the deceased or to corroborate the allegation that her
death was the consequence of the alleged assault.
27. As per the records, it appears that the Investigating
Officer has proceeded to investigate in the matter after the death
of the deceased. In course of investigation, he has admitted that
he has examined several villagers and the independent
witnesses. Case diary has not been exhibited. In course of
investigation, the Investigating Officer has also not been able to
examine the 6 years old minor daughter of the deceased, who
was also present at the time of alleged death.
28. In view of the aforesaid facts and circumstances,
and in the light of the settled legal principles and law laid down
by the Hon’ble Supreme Court in Rajinder Singh (supra) and
Jogendra (supra), this Court is of the considered opinion that
the learned Trial Court erred in holding that the death of the
deceased had occurred within seven years of her marriage and
that she had been subjected to cruelty and harassment in
connection with an unlawful demand of dowry, leading her to
commit suicide soon before her death, no case under Section
498 A IPC is made out. Accordingly, I find that merely on the
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basis of the statement of mother of deceased, I don’t find that
ingredient of Sections 304B of Indian Penal Code and Section
113 B of the Evidence Act are attracted. The circumstances
show that the deceased was taken to the hospital by the
appellants and the brother of the deceased. The deceased was in
an advanced stage of pregnancy and the family members while
had taken her to see the doctor, she died on way due to severe
pain and other complications.
29. In the facts and circumstances of the present case,
I am of the considered opinion that the prosecution has failed to
establish its case against the appellants under Sections 498-A
and 304-B/34 of the Indian Penal Code beyond reasonable
doubt in the absence of specific and convincing evidence to
attract conviction under Sections 498 A and 304 (B) of Indian
Penal Code. Consequently, the conviction dated 08.04.2013 and
order of sentence dated 09.04.2013 are set aside and quashed
and the appellants no.1, 2, 3 and 4 are acquitted of the charges
levelled against them.
30. Since the appellants stand acquitted and all the
appellants are on bail, they are discharged from the liabilities of
their respective bail bonds. The fine amount, if already
deposited by the acquitted appellants, shall be refunded
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forthwith, subject to verification by the court concerned.
31. Accordingly, the present appeal stands allowed.
32. The Patna High Court, Legal Services Committee
is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten
Thousand) to Ms. Sarandha Suman, learned Amicus Curiae, as
consolidated fee, for rendering her valuable professional service
for disposal of the present appeal.
33. Office is directed to send back the lower court
records along with a copy of this judgment to the learned court
below forthwith.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR AFR
CAV DATE 22.06.2026
Uploading Date 09.07.2026
Transmission Date 09.07.2026
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