Holding

The conviction under Section 304B IPC stands, but a fine cannot be imposed as punishment; the High Court's enhancement of the fine to Rs.2 lakh is illegal and cannot be treated as compensation under Section 357(3).

Summary

Arun Garg was convicted for the dowry death of his wife Seema, who died within three years of marriage after alleged repeated dowry demands and harassment, culminating in her poisoning with aluminium phosphide. The trial court sentenced him to ten years' rigorous imprisonment and a fine of Rs.2,000; the High Court confirmed the conviction but enhanced the fine to Rs.2 lakh and directed its payment to the complainant. The Supreme Court examined whether the three ingredients of Section 304B IPC—death within seven years, unnatural circumstances, and cruelty/harassment for dowry "soon before death"—were proved, and held that they were satisfied, invoking the presumption under Section 113B. It further ruled that Section 304B does not authorize the imposition of a fine as punishment, and the High Court's enhancement could not be treated as compensation under Section 357(3) of the CrPC. Consequently, the conviction was upheld, the fine set aside, and the sentence of ten years' imprisonment confirmed.

Issues considered

The three essential ingredients of Section 304B IPC, especially the requirement of cruelty or harassment "soon before death" for dowry, are satisfied.
Whether a fine can be imposed as a punishment for an offence under Section 304B IPC.
Whether the enhanced fine of Rs.2 lakh can be treated as compensation under Section 357(3) of the Criminal Procedure Code.
The relationship between offences under Sections 304B and 498A IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 357(1), s. 357(3), s. 357(5)
Dowry Prohibition Act, 1961
Indian Penal Code, 1860s. 113B, s. 304B, s. 498A

Subjects

dowry deathSection 304Bpresumption under Section 113Bfine not permissibleSection 357(3) compensationcruelty and harassmentaluminium phosphide poisoningconviction upheld

Judgment

A ARUN GARG
v.
STATE OF PUNJAB AND ANR.

SEPTEMBER 29, 2004

B [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]

Penal Code, 1860:

Section 304-B-Dowry death-Cruelty or harassment- "Soon before
c death"-Jngredients of-Accused-husband demanded more dowry from his
wife (deceased) -She Informed her father on telephone about demand of
dowry-Deceased again informed her father on telephone about the conspiracy
to kill her since the demand/or more dowry not met-Subsequently, deceased
was admitted to hospital in an unconscious state and serious condition-She
died in hospital due to intake ofaluminum phosphide, a poisonous substance-
D Courts below convicted the accused-husband under S. 304-B-Correctness
of-Held: Ingredients of S. 304-B satisfied-Therefore, presumption under
S. 113-B Evidence Act wouldfollow-Although this is a rebuttable presumption
yet the accused-husband could not rebut the same-Prosecution, without the
aid of this presumption, established the case-Hence, conviction under S.
304-B justified
E
Sections 498-A and 304-B-Distinction between-Held: Ss. 498-A and
304-B are not mutually exclusive-These Sections deal with different and
distinct offences-A person charged and acquitted under S. 304-B can be
convicted under S. 498-A even without a specific charge being there.
F
Section 304-B-Sentence-lmposition of-Trial court imposed afine of
Rs. 2, 000 on the accused-High Court enhanced it to Rs. 2 lakhs.:_
Correctness of-Held: Fine is not a prescribed punishment under
S. 304-B-Hence, High Court erred in enhancing the fine instead of setting
it aside.
G
Code of Criminal Procedure, 1973:

Section 357(3)-Compensation-Award by court-Power of-Trial court
imposed afine of Rs. 2,000 on the accused/or an offence under S. 304-B-
H High Court enhanced it to Rs. 2 lakhs with a direction that the same be paid
852
ARUN GARG v. STATE 853

to the complainant, if recovered-Fine was not a prescribed punishment A
under S. 304-B-But accused contended that the fine be treated as
compensation under S. 357(3)-Validity of-Held: High Court enhanced the
quantum offine without any discussion-There is no finding or observation
that the complainant suffered any loss or injury-Therefore, imposition of
fine of Rs. 2 lakhs not warranted-Hence, fine of Rs. 2 lakhs set aside. B
Words & Phrases:

"Soon before death"-Meaning of-In the context of Section 304-B of
the Penal Code, 1860.

According to the prosecution, the appellant's wife died under very
c
tragic circumstances within three years of her marriage. The appellant
was alleged to have administered aluminum phosphide causing the
unnatural death of the deceased. At the time of marriage, household
articles and cash were given in dowry. However, the appellant had been
demanding more dowry and since the demand was not met the deceased D
was being harassed and ill-treated by the appellant and his family
members. Prior to her death the deceased had made a telephone call to
her father informing him that the appellant and her in-laws were
conspiring to kill her. Subsequently, the deceased was admitted to the
hospital in an unconscious state and serious condition and she died two
E
days later.

The trial court convicted the appellant under Section 304-B of the
Penal Code, 1860 and sentenced him to undergo RI for a period of ten
years and to pay a fine of Rs. 2,000. The High Court, while confirming
the conviction of the appellant, enhanced the fine from Rs. 2.000 to Rs. F
2 lakhs. Hence the appeal.

On behalf of the appellant, it was contended that the deceased was
not subjected to cruelty and harassment by the appellant or any of his
relatives "soon before the death" of the deceased; that the interested
evidence of the parents of the deceased was not supported by independent G
evidence or by any witness from the locality; and that there was no
demand of dowry "soon before the death" of the deceased.

On behalf of the respondent, it was contended that as no tine could
be imposed as part of the punishment, the direction. to a pay a fine of
H
A
854 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

Rs. 2 lakhs should be treated as compensation under Section 357(3) of
..
the Code of Criminal Procedure, 1973.

Allowing the appeal in part, the Court

HELD: 1.1. The ingredients necessary for the application of Section
B 304-B of the Penal Code, 1860 are:

(i) that the death of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal circumstances;

(ii) within seven years of her marriage;
c
(iii) it must be shown ·that before the death she was subjected to
cruelty or harassment by her husband or any relative of the husband or
in connection with the demand of dowry. (862-B-C-D]

1.2. In the light of these ingredients, the evidence of the prosecution
D is to be scanned. (862-D-E]

2.1. The only controversy between the parties is with regard to the
third ingredient as to whether "soon before the death" the deceased was
harassed and was subjected to cruelty on account of demand of dowry.
[862-E-F]
E
2.2. The courts below, after appreciation of the facts and evidence
recorded, have reached the conclusion that the de~eased died an
unnatural death at the house of her in-laws within a period of seven
years of her marriage with the appellant due to intake of a poisonous
F substance. (862-G-H; 863-A-B]

3. There is no substance in the argument of the appellant that the
interested evidence of the parents of the deceased has not been supported
by independent evidence or witness of the locality, while the stand of the
defence has been that the deceased was never harassed or tortured by
G the appellant or by any of his family members for demand of dowry.
Likewise, there is no substance that there is no demand of dowry by the
appellant or by any of his family members "soon before the death" of
the deceased. (864-B-C-D]

4. Once the three essentials under Section 304-B IPC are satisfied,
H
ARUN GARG v. STA TE 855

the presumption under Section 113-B of the Evidence Act, 1872 would A
follow. This rule of evidence is added in the Statute by amendment to
obviate the difficulty of the prosecution to prove as to who caused the
death of the victim. Of course, this is a rebuttable presumption and the
accused by satisfactory evidence can rebut the presumption. In the instant
case, the appellant could not rebut the presumption and the prosecution, B
even without the aid of this presumption under Section 113-B, proved
that the appellant was responsible for the death of the deceased. Hence,

.. the conviction of the appellant for the offence under Section 304-B IPC
is only to be confirmed. [864-G-H; 865-A-B]

6.1. For the offence under Section 304-B, the Court is not empowered C
to impose fine as a punishment. [865-E-F]

6.2. Section 304-B is one of the few Sections in the Indian Penal
Code where imposition of fine is not prescribed as a punishment. The
Division Bench of the High Court which confirmed the conviction of the
appellant under Section 304-B instead of setting aside the fine, which is D
not warranted by law, enhanced the sum to Rs. 2 lakhs and also directed
that the fine, if recovered, shall be paid to the complainant. The appellant
could have been sentenced only to a punishment, which is prescribed
under the law. As no fine could be imposed as punishment for an offence
under Section 304-B, the direction to the appellant to pay a fine of Rs.
2 lakhs was wholly illegal. [865-F-G-H] E
7. The High Court had enhanced the quantum of fine without there
being any further discussion on the matter. Therefore, the direction to
the appellant to a pay a fine of Rs. 2 lakhs could only be treated as
enhancement of fine already imposed. Moreover, Section 357(3) of the F
Code of Criminal Procedure, 1973 contemplates a situation where the
complainant has suffered any loss or injury and for which the accused
person has been found prima facie responsible. There is no such finding
or observation by the High Court. Therefore, the direction of the High
Court to pay a sum of Rs. 2 lakhs as fine was not warranted by law and
same is set aside. [866-E-F-G; 867-B-C) G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
289-290 of 2004.

From the Judgment and Order dated 30.5.2003 of the Punjab and
Haryana High Court in Cr!. A. No. 161-SB and Cr!. R.No. 1251 of 2001. H
856 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A K.G. Bhagat, Vineet Bhagat; Kamal Biad, Monohar Singh Bakshi, Ms.
Sangeeta Gaur and Debasis Misra for the Appellant.

Arun K. Sinha, Rakesh Singh, Sudhir Walia for (Additional Advocate
General of the State) and Mahinder S. Dahiya for the Respondents.

B The Judgment of the Court was delivered by

-
DR. AR. LAKSHMANAN, J.: These appeals are directed against the
impugned judgment and order dated 30.05.2003 passed by the High Court
of Punjab & Haryana at Chandigarh in Criminal Appeal No. 161-SB of2001.

c The High Court dismissed the said appeal of the appellant and confirmed the
sentence often years rigorous imprisonment awarded by the Sessions Judge,
Ludhiana but enhance the fine from Rs. 2000 to Rs. 2,00,000 in Criminal
No. 1251 of 2001 filed by the complianant against the appellant.

Briefly stated, the case of the prosecution is as follows :
D
The marriage between Seema, daughter of Ramesh Chandra Bansal,
PW-1 and the appellant-accused, Arun Garg took place on 25.02.1996.
According to the prosecution, she died under very tragic circumstances on
30.03.1999, that is, within three years of her marriage with the appellant. The
appellant was alleged to have administered aluminium phosphide causing
E unnatural death of the daughter of the respondent and thus the appellant was
liable for the offence under Section 304B of the Indian i;>enal Code. At the
time of marriage, household articles, clothes, gold etc. and cash amount of
Rs. 2,00,000 was also given in dowry. However, few days after the marriage,
Seema started complaining that her husband, Arun Garg, father-in-law, Sham
F Lal Garg and mother-in-law, Shimla Garg were not satisfied with the dowry
given to her at the time of her marriage and all of them often used to taunt
her on the ground that she had not brought sufficient dowry at the time of
her marriage. It was further submitted that on 10.04.1996, Seema telephoned
the respondent herein that her father-in-law and mother-in-law were making
a demand for Rs. 40,000 and thereupon the respondent accompanied by
G Prakash Chand and Sohan Lal who had arranged the marriage of Seema with
Arun Garg went to the house of Arun Garg. Thereupon, on the insistence of
Parkash Chand and Sohan Lal, the respondent purchased household articles
worth Rs. 20,000 and supplied the same to the family of Arun Garg. It is
the case of the prosecution that since February 1997, the appellant and his ""!"""
H parents did not allow Seema to see her parents and had not allowed her to
ARUN GARG v. STATE [LAKSHMANAN, J.] 857

visit their house. When the parents went to see Seema at the house of her A
in-laws on the eve ofTeej festival, Seema told them that her husband, father-
in-law, mother-in-law and sister-in-lawNeena used to ill-treat her and often
made a demand for more cash. There are other instances on 22.02.1999 and
on 26.03.1999 of demanding dowry. On 26.03.1999, Seema telephoned the
respondent herein that her husband, father-in-law, mother-in-law and sister- B
in-law were planning to kill her. The respondent, who is a government
servant, could not, however, obtain leave from the office and go to see Seema
at the house of her in-laws".

On 28.03.1999, at about 6.00 p.m., the respondent received information
that her daughter Seema had been administered some poisonous substance c
by her husband and in-laws and sister-in-law Neena and that she had been
admitted in the Dayanand Medical College, Ludhiana. The respondent
accompanied by his wife immediately rushed to the hospital and found that
Seema was unconscious and her condition was found to be serious. The
respondent thereafter went to the police station and lodged an FIR on the
same day which was registered as FIR No. 139 of 1999 under Section 307 D
read with Section 34 of the Indian Penal Code, against Arun Garg, his father,
Sham Lal Garg, mother Shimla Garg and sister Neena. On the same day, i.e.,
28.03 .1999, police made an application for recording the statement of Seema,
which was declined as she was declared medically unfit to make the
statement. Police again made an application for recording the statement of E
Seema on 29.03.1999 which was also declined as Seema was not medically
fit to make the statement. Unfortunatly, Seema died in the hospital on
30.03.1999.

On the death of Seema, the case was converted into one under Section
3048-ofthe Indian Penal Code and all the three accused, namely, Arun Garg, F
Sham Lal Garg and Shim la Garg were arrested in the case on 31.03 .1999.
After the death of Seema. the dead body was sent for post ~ortem
examination. The findings of the Medical Board are as under :

"Eyes and mouth were closed. Post Mortem staining was
present on the left, lateral side of body. Cyanosis of nails, lips and G
tongue was present. Face was congested. Multiple needle prick
marks were present on the body. Larynx, trachea and both lungs
were congested. The right side of the heart contained blood and
blood sample was sealed in jar No. 4. Both the ends of the stomach
were ligated and were sent to the Chemical Examiner in Jar No. 1. H
858 SUPREME COURT REPORTS (2004) SUPP. 4 S.C.R.

A Small and large intestines were congested and a portion of each was
sent to the Chemical Examiner in Jar No. 2. Liver, Spleen and
Kidney were congested and potion of each was sent to the Chemical
Examiner in Jar No. 3. Urinary bladder was healthy and empty. The
genitalia was healthy and uterus contained Copper T."

B On receipt of the report of the Chemical Examiner, the pesticide
aluminium phosphide was detected in the stomach and large and small
intestines. While phosphide, a constituent of aluminium phosphate was
detected in liver, spleen, kidney and blood. Thereafter, the doctors opined
that death of Seema had caused due to intake of aluminium phosphide
c poisoning which was sufficient to cause death in the ordinary course of
nature. The challan was presented by the police in the Court of Sessions
Judge, Ludhiana against the appellant, his father and mother. The Sessions
Judge, by his judgment dated 22.01.2001, acquitted Sham Lal Garg and
Shimla Garg giving them benefit of doubt and convicted the appellant, Arun
Garg, under Section 304B IPC in connection with the death of his wife Seema
D Garg and sentenced him to undergo R.I. for a period of ten years and to pay
a fine of Rs. 2000 or in default of payment of fine to undergo further R.I.
for a period of two months.

Aggrieved by the said judgment, the appellant filed Criminal Appeal
E No. 161-SB of 2001 before the High Court along with the application for
bail. The State of Punjab also filed Criminal Appeal No. 489-DBA of 2001.
The respondent herein filed two separate revision petitions being Revision
Petition No. 1245 of 2001 challenging the acquittal of Sham Lal Garg and
Shimla Garg and Revision Petition No. 125lof 2001 seeking enhancement
of the sentence imposed upon the appellant.
F
The High Court, by its order dated .14.02.2001, admitted the appeal filed
by the appellant and stayed the recovery of fine, h.owever, declined the prayer
for bail.

The High Court, by a common order dated 30.05.2003, while upholding
G the conviction made by the trial Court, dismissed Criminal Appeal No. 161-
SB filed by the appellant herein and partly allowed the Revision Petition No.
1251 of 2001 filed by the respondent herein. The High Court, by the
impugned judgment, enhanced the fine from Rs. 2,000 to Rs. 2,00,000. By
the said order, the High Court also dismissed Criminal Appeal No. 489-DBA
H of2001 filed by the State of Punjab and Criminal Revision No. 1245 of2001
ARUN GARG v. STATE [LAKSHMANAN, J.] 859

filed by the respondent herein. A

Against the said order, the appellant has approached this Court by way
of special leave petition. Leave was granted by this Court on 23.02.2004.

We heard Mr. K.G. Bhagat, learned counsel appearing for the appellant
and Mr. Arun K. Sinha, learned counsel appearing for the contesting B
respondent and Mr. Sudhir Walia, learned counsel appearing for the State of
Punjab.

Learned counsel appearing for the appellant took us though the
judgments of both the Courts and documents filed in the Court. He made the
following submissions :
c
(I) that in the FIR dated 28.3.1999, there was no imputation by
the complainant that 'soon before death' the deceased was
subjected to cruelty or harassment by her husband or any
relative or her husband for, and in connection with any demand D
ofdowry. In this regard, he invited our attention to the relevant
portions of the FIR.

(2) That no independent witness came in the witness box to
corroborate the interested version of PW-3 and PW-4, the
parents of the deceased, Elaborating the submission; learned
E
counsel for the appellant submitted that the complainant had
emphatically alleged that he had gone to the house of the
appellant along with middleman Parkash Chand and Sohan Lal
but they were never associated during the investigation nor
were they produced in the Court, which fact itself is sufficient F
to disbelieve the witness of the complainant.

(3) The ingredients of demand of dowry soon before the death of
the deceased and the harassment thereon under Section 304B
has not been proved beyond reasonable doubt.
G
(4) The complainant has nowhere proved the payment of Rs.
2,00,000 to the appellant at the time of marriage or proved
spending Rs. 20,000 worth of items given to the appellant. No
withdrawal from any Bank is shown, no Joan is taken, no
receipt of any sort is produced. H
860 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A (5) The appellant has proved withdrawal of large sums of monies
from their different bank accounts to prove that had advanced
Rs. 2,00,000 to the complainant to help him to settle hiS son
and when the same was demanded back by the appellant, the
complainant felt offended and had that grudge in his mind.

B (6) Had the appellant been responsible of administering aluminium
phosphide to the deceased, he would not have taken the
deceased to a most reputed hospital of Dayanand Medical
College of Ludiiana to save her.

c (7) The demand of dowry or harassment of the deceased is not
proved by any independent evidence except the bald statement
of parents of the deceased as PW-1 and PW-3, and though the
appellant had led sufficient independent evidence especially of
the neighbours and others as DW-1 to DW-11 especially DW-
4, DW-10 and DW-11 who sufficiently elaborated that nothing
D happened at the house of the appellant and in fact, everybody
including Seema was happy and on 27.03.1999, she attended
Jagrata in the neighbourhood and attended Kanjak ceremony
in the morning on 28.3.1999 at the same house along with her
daughter and thereafter she went to the house of her mother.
E
(8) There is hardly any evidence to prove the offence under
Section 304B and 498A IPC against the accused. Even from
the evidence on record, no offence is made out under Section
304B of IPC. There is no material on record to support the
conclusion of cruelty or harassment.
F
(9) The enhancement of fine from Rs. 2000 to Rs. 2,00,000 in
revisional jurisdiction is all the more uncalled for and
unwarranted and not permissible under law.

Learned counsel appearing for the State of Punjab submitted that the
G investigation revealed that the accused was responsible for causing the death
of the deceased, Seema and also subjected her to cruelty for and in connection
with the demand of dowry articles. He would further submit that due to
haras~ment; as proved in the evidence, which was caused by the appellant
to his wife apparently due to demand of more dowry, a precious human life
H was lost. Such type of social crime should be viewed seriously and suitable
ARUN GARG v. STATE [LAKSHMANAN, J.] 861

punishament is called for so as to serve as deterrent to others and that the A
. appellant is guilty of forcibly administering poison to his wife, Seem, and
is responsible for causing her unnatural death within seven years of her
marriage and thus such person cannot be allowed to remain at liberty in the
society.

Concluding his submission, it was submitted that keeping in view
B
the facts and circumstances of the case and the gravity of the
offence committed by the appellant, ·the present appeals deserve to be
dismissed.

Learned counsel appearing for the contesting respondent (father of the c
deceased) submitted that the contents of various grounds are not correct. It
w:is submitted by the appellant that it is nowhere proved that payment of Rs.
2,00,000 was made to the appellant and that no withdrawal from any Bank
is shown, no loan is taken and no receipt of any sort is produced. In regard
to this, it was submitted by the learned counsel for the respondent that the
respondent had withdrawn Rs. 1,23,000 from his GPF account and his wife D
Pushpa Rani, who is also government servant had withdrawn Rs. 94,000 from
her GPF account. It was further submitted that no documentary evidence has
been put forth by the appellant regarding advancement of any money by the
· parents of the appellant to the respondent herein.
E
Before considering th~ rival contentions, it will be appropriate to note
the relevant provisions· of Section 304B of the Indian Penal Code.

Section 304B read thus :

"304B-Dowery death-(1) Where the death of a woman is F
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 subject to cruelty or
harassment by her husband or any relative of her husband for, or
in connection with, any ·demand for dowry, such death shall be
called "dowry death", and such husband or relative shall be deemed
G
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 ). H
862 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A (2) Whoever commits dowry death shall be punishable with
imprisonment for a term which shall not be less than years but which
may extend to imprisonment for life. "
(emphasis supplied)

The ingredients necessary for the application of Section 304B IPC
B are :

(i) that the death of a woman is caused by any bums or bodily
injury or occurs otherwise than under normal circumstances;

c (ii) within seven days of her marriage;

(iii) it must be shown that before the death she was subject to
cruelty or harassment by her husband or any relative of the
husband or in connection with the demand of dowry.

D In the light to these ingredients, the evidence of the prosecution is to
be scanned.

The appellant was married with the deceased in the year 1996. The
deceased died on 30.03.1999. So she died within seven years of the marriage.
It is also not disputed that the deceased had not died a natural death. The
E only controversy between the parties is with regard to the third ingredient
as to whether soon before the death the deceased was harassed and was
subject to cruelty on account of demand of dowry.

In the instant case, the prosecution had examined the complainant,
F PW-I, Ramesh Chander Bansal, Dr. Dhiraj Bhatia, PW-2, Pushpa Bansal,
PW-3, Dr. U.S. Sooch, PW-4, Harminder Singh, PW-5, Inspector Gurinderjit
Singh, PW-6, H.C. Kuldip Singh, PW-7, ASI Amrik Singh, PW-8, Constable
Prithi Pal Singh, PW-9, Dr. N. Siridhar Rao, PW-10, Constable Gursharanvir
Singh, PW-11 and Constable Kamaljit Singh, PW-12. Since Parkash Chand
and Pt. Sohan ,Lal died on 19.6.1999 and 9.5.2000 respectively, they could
G not be examined.

The Courts blow have carefully gone through the facts of the case and
the evidence on record and have found that the appellant is liable for the
offence under Section 304B IPC. The courts below, after appreciation of the
H facts and evidence recorded !).ave reached the conclusion that Seema Garg
ARUN GARG v. STATE [LAKSHMANAN, J.] 863

died an unnatural death at the house of her in-Jaws within a period of seven A
years of her marTiage with the appellant due to intake of poisonous substance.

It was argued on behalf of the appellant that there are contradictions
in the statements of PW-6. Gurinderjit Singh and the complainant, respondent
herein. In fact, two site plans of the place of occurrence were prepared one
being Ex.PL prepared on 29.3.1999 by the Investigating Officer, PW-6, and B
the other being Ex.PG prepared on 22.6.1999 by Harminder Singh, Draftsman,
PW-5. This site plan was prepared at the instance of the respondent herein.

It was argued on behalf of the appellant that in the FIR, there was no
imputation by the complainant that 'soon before death' the deceased was
subjected to cruelty or harassment by her husband or any relative of her
c
husband for and in connection with, any demand of dowry. We have perused
the FIR in this connection. PW-I deposed that on 26.3.1999 Seema informed
him on telephone that her father-in-law, mother-in-law, sister-in-law and her
husband had been conspiring to kill her and this fact had mentioned in his
first information statement. The High Court had dealt with this in detail and D
reached the conclusion that the most vital circumstances of an offence under
Section 3048 IPC that the demand for dowry had been made soon before
the death had been proved beyond doubt. According to PW-1, the appellant
had been demanding more dowry after the marriage and that he had accepted
further dowry of Rs. 20,000 on 10.4.1996 when they, in fact, had demanded E
Rs. 40,000. PW-I further deposed that in July, 1998, at the time ofTeej, they
had demanded more dowry but they were made to understand not to harm
Seema. This demand of more dowry remain unfulfilled because of which the
appellant and his family members continued to harass Seema and ultimately
they killed Seema by administrating poison on 28.3.1999.
F
In reply to the argument advanced by the· counsel for the appellant, it
was submitted that Seema made a telephone call on I 0.4.1996 to the
respondent herein saying that the appellant had demanded more dowry.
Thereafter, the respondent along with Parkash Chand and Sohan Lal went
to the house of the appellant on 21.4.1996 and gave them articles worth Rs.
G
20,000 to the appellant. It is pertinent to mention here that the trial Court had
rightly observed that even if the accused be away, there is no reason why
the telephonic call could not be made from outside.

It was further reiterated by the respondent that the deceased made a
telephone call to the respondent herein on 26.3 .1999 alleging that her H
864 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A husband and parents-in-law were conspiring to kill her. It has come in cross-
examination of the respondent herein/complainant that as Vidhan Sabha
Sessions was going on, therefore, leave could not be granted to him for
27 .3 .1999, although it was a Saturday but he was put on duty due to Session
ofVidhan Sabha. As already stated, Parkash Chand died on 19.6.1999 and
Sohan Lal died on 9.5.2000. It is pertinent to note here that examination for
B
PW-1, the respondent herein, was made on 22.5.2000. As both the above said
persons died before the said date, they could not be examined as witnesses.

There is no substance in the argument of the learned counsel appearing
the appellant that the interested evidence of the parents of the deceased has
c not been supported by independent evidence or witness of the locality while
the stand of the defence has been that the deceased Seema was never harassed
or tortured by the appellant or by any of his family members for demand of
dowry. Likewise, there is no substance in the submission of the learned
counsel appearing for the appellant that there is no demand of dowry by the
appellant or by any of his family members soon before the death of Seema.
D The evidence discussed, as in paragraphs supra, ~ould clearly go to show
that this submission has no force.

Section 304B was inserted by the Dowry Prohibition (Amendment) Act,
1986 with a view to combating the increasing menace of dowry death. By
E the same Amendment Act, Section 1138 has been added in the Evidence Act,
1872 for raising a presumption. It reads thus :

"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 woman had been subjected
F 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 purpose of this section "dowry death"
shall have the same meaning as in section 304B of the Indian Penal
G Code."

Once the three essentials under Section 304B as referred to in paragraphs
supra (page 10) are satisfied, the presumption under Section 113-B would
follow. This rule of evidence is added in the Statute by amendment to obviate
H the difficulty of the prosecution to prove as to who caused the death of the
ARUN GARG v. STATE [LAKSHMANAN, J.] 865

victim. Of course, this is a rebuttable presumption and the accused by A
satisfactory evidence can rebut the presumption. In the instant case, the
appellant could not rebut the presumption, and the prosecution, even without
the aid.of this presumption under Section 113-B proved that the appellant
was responsible for the death of the deceased Seema. Hence, the conviction
of the appellant for the offence under Section 304B I.P.C. is only to be B
con finned.

Our attention was also drawn to Section 498A. In our view, Sections
304B and 498A and not mutually exclusive. They deal with different and
distinct offences. in both the sections, 'cruelty' is a common element. Under
Section 498A, however, cruelty by itself amounts to an offence and is c
punishable. Under Section 304B, it is the dowry death that is punishable and
such death must have occurred within seven years of the marriage. No such
period is mentioned in Section 498A. Moreover, a person charged and
acquitted under Section 304B can be convicted under Section 498A without
a specific charge being there, if such a case is made out.
D
In the instant case, the Trial Court convicted the appellant for the
offence punishable under Section 304B and sentenced him· to undergo
imprisonment for a period of IO years and to pay a fine of Rs. 2,000 or in
default to undergo further rigorous imprisonment for a period of three
months. But unfortunately, the Sessions Judge who imposed a fine of Rs. E
2,000 to the appellant did not take notice that for the offence under Section
304B, the Court is not empowered to impose fine as a punishment. The
punitive clause of Section 304B Dowry Death has already been extracted in
paragraph supra.

Section 304B is one of the few sections in the Indian Penal Code where F
imposition of fine is not prescribed as a punishment. The Division Bench of
the High Court which confirmed the conviction of the appellant under Section
304B instead of setting aside the fine, which is not warranted by law,
enhanced a sum to Rs. 2 lakhs and also directed that the fine, if recovery,
shall be paid to the complainant. The appellant could have been sentenced G
only to a punishment which is prescribed under the law. As no fine could
be imposed as punishment for offence under Section 304B, the direction to
the appellant to pay a fine of Rs. 2 lakhs was wholly illegal.

The learned Counsel for the respondent contended that no fine could
be imposed as part of the punishment, the direction to pay a fine of Rs. 2 H
866 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R..

A lakhs is in accordance with the Section 357(c) of the Cr.P.C. Section 357 is ..
an enabling provision by which the Court can give directi(ln to the effect that
when passing judgment, ·sentence imposed for payment of fine can be
recovered and applied either for defraying the expenses properly
incurred in the prosecution or in payment to any person as compensation for
any loss or injury caused by the offence, when compensation can be
B recoverable by such person in a Civil Court. Section 357(1) is applicable in
cases whete fine fonns the part of the sentence·where~s under Section 357(3)
the Court can direct the conyicted person to pay compensation even in cases
where the fine does not fonn part of the sentence. Section 357(3) 'reads as
follows :
c
"When a Court imposes 9 sentence, of which fine does not fonn a
part,. the Court may, when passing judgment order the·accused
person to p~y, by way of compensation such amount as may be
specified in the order to the person who has suffered any loss or
injury by reason of the act for which the accused person has been
D
so sentenced."

The learned Counsel for the respondent contended that even if the Court
is not competent to impose fine as a punishment, the Court can still order
compensation under Section 357(3) of the Cr.P.C. and the direction of the
E High Court to pay Rs. 2 lakhs to the complainant is ~o ~e .treated as the
direction given under Section 357(3). The contention of the respondent's
learned Counsel cannot•be accepted. Hea:r the Trial Court had imposed a
sentence of fine of Rs. 2,000 as fine and the High Court enhanced the
quantum of fine without there being any further discussion on the matter.
Therefore, the direction to the appellant to pay a fine of Rs. 2 lakhs could
F
only be treated as enhancement of fine already imposed by the Sessions
Judge. Moreover, Section 357(3) contemplates a situation where the
complainarit has suffered any loss or injury and for which the accused person
has been found prima facie responsible There is no such finding or
observation by the High Court. Of course, the daughter of the complainant
...
G passed away but the direction of the High Court to pay Rs. 2 lakhs was on
the assumption that the complaina°:t had paid Rs. 2 lakhs as part of the dowry
to the appellant. There is no evidence to show that such an amount was given
to the appellant. On the other hand, the appellant's learned Counsel contended
that it was a love marriage between the appellant and the deceased and no
H dowry passed between the parties. It is also pertinent to note· that Section
_. ARUN GARG v. STATE [LAKSHMANAN, J.] 867

357(5) of the Cr.P.C. says that at the time of awarding compensation in any A
subsequent civil suit relating to the same matter, the Court shall take into
account any sum paid or recovered as compensation under this Section. The
direction to pay compensation under Section 357(3) is on the assumption of
basic civil liability on the part of person who committed the offence to redress
the viCtim or his dependents by payments of compensation. The complainant
B
could not have filed a civil suit for recovery o(dowry amount, if any, as the
payment itself was illegal and prohibited under law. In any· view of the matter,
the direction of the High Court to pay a sum of Rs. 2 lakhs as fine was not
warranted by law and we set aside the same and also further direction that
the appellant to undergo default sentence.
c
In the result, the appeals are partly allowed confirming the sentence of
imprisonment for a period of I 0 years. The direction to pay a fine of Rs. 2
lakhs is set aside.

v.s.s. Appeals partly allowed.
D