DURGA PRASAD AND ANR.versusSTATE OF M.P.

                       (2010] 7 S.C.R. 104


A                 DURGA PRASAD AND ANR.
                                v.
                         STATE OF M.P.
               (Criminal Appeal No. 1081 of 2010)
                         MAY 14, 2010
B
         [ALTAMAS KABIR AND H.L. GOKHALE, JJ.]

       Penal Code, 1860: ss. 304-8, 498-A - Necessary
  ingredients to prove dowry death - Discussed - On facts, no
C evidence led to prove that deceased was subjected to cruelty
  and harassment by appellants on account of dowry demand
  soon before her death - Case not made out for conviction
  under s.3048 and under s.498-A - Appellants entitled to
  benefit of doubt, hence acquitted - Evidence Act, 1872 -
D s.1138 - Crime against women- Dowry Prohibition Act, 1961.

       The question which arose for consideration in the
  present appeal was whether the courts below were
  justified in convicting the appellants under Section 498-
  A and Section 304-8 IPC on the basis of the evidence of
E PW-1, the mother of the deceased and PW-3, the brother
  of the deceased.

       Allowing the appeal, the Court

F      HELD: The appellants are entitled to the benefit of
  doubt having particular regard to the fact that except for
  certain bald statements made by PWs.1 and 3 alleging
  that the victim was subjected to cruelty and harassment
  prior to her death, there is no other evidence to prove that
G the victim committed suicide on account of cruelty and
  harassment to which she was subjected just prior to her
  death, which, in fact, are the ingredients of the evidence
  to be led in respect of Section 113-8 of the Indian
  Evidence Act, 1872, in order to bring home the guilt

H                              104
   DURGA PRASAD AND ANR. v. STATE OF M.P.              105


against an accused under Section 304-8 IPC. In order to A
hold an accused guilty of an offence under Section 304-
8 IPC, it has to be shown that apart from the fact that the
woman died on account of burn or bodily injury,
otherwise than under normal circumstances, within 7
years of her marriage, it has also to be shown that soon B
before her death, she was subjected to cruelty or
harassment by her husband or any relative of her
husband for, or in connection with, any demand for
dowry. Only then would such death be called "dowry
death" and such husband or relative shall be deemed to        c
have caused the death of the woman concerned. The
prosecution in this case has failed to fully satisfy the
requirements of both Section 113-8 of the Evidence Act,
1872 and Section 304-8 of the Indian Penal Code.
Moreover, no charges were framed against the D
Appellants under the provisions of the Dowry Prohibition
Act, 1961 and the evidence led in order to prove the same
for the purposes of Section 304-8 IPC was related to a
demand for a fan only. Thus no case was made out for
conviction under Sections 498-A and 304-8 IPC. [Paras
                                                            E
14-18] [111-8-F; 112-A-C; 111-G]

    Biswajit Halder@ Babu Halder & Ors. v. State of WB.
(2008) 1 sec 202, relied on.

    Anand Kumar v. State of M.P. (2009) 3 SCC 799, held       F
inapplicable.

     Shri Gopal & Anr. v. Subhash & Ors. (2004) 13 SCC 174,
referred to.

                    Case Law Reference:                       G

    (2008) 1 sec 202        relied on            Para 7
    (2004) 13 sec 174       referred to          Para 8
    (2009) 3 sec 799        held inapplicable    Para 12
                                                              H
    106      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1081 of 2010.

       From the judgment and order dated 28.04.2009 of the
  High Court of Madhya Pradesh at Jabalpur in CRLA No. 103
B of 2003.

        R.P. Gupta, M.P. Singh and Rajeev Bansal, for the
    Appellants.

          Vibha Datta Makhija for the Respondent.
c         The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. 1. Leave granted.

       2. This appeal is directed against the judgment and order
D dated 28th April, 2009, passed by Jabalpur Bench of the
  Madhya Pradesh High Court, dismissing Criminal Appeal
  No.103 of 2000, which had been directed against the judgment
  of conviction and sentence under Section 498-A and Section
  304-B Indian Penal Code. By the said judgment, the learned
E Sessions Judge had sentenced the Appellants to undergo
  rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/
  - and in default of payment of fine to undergo rigorous
  imprisonment for 3 months under Section 498-A IPC and to
  undergo rigorous imprisonment for 7 years and to pay a fine
F of Rs.5,000/- and in default of payment of such fine, to undergo
  rigorous imprisonment for a further period of 3 years. Upon
  consideration of the materials on record, the High Court was
  of the view that the prosecution had proved its case beyond all
  reasonable doubts and that the appeal, therefore, deserved to
  bEi dismissed.
G
       3. Appearing in support of the appeal, Mr. R.P. Gupta,
  learned Senior Advocate, contended that both the Courts below
  had erred in convicting the Appellants on the basis of evidence
  on record. Mr. Gupta submitted that in the absence of any
H evidence to prove the charges under Sections 304-B and 498-
   DURGA PRASAD AND ANR. v. STATE OF M.P.                    107
            [ALTAMAS KABIR, J.]

A IPC, the trial Court, as also the High Court, had erred in         A
merely relying on the presumption available under Section 304-
B regarding the death of a woman by any burn or bodily injury
or otherwise than under normal circumstances, within 7 years
of her marriage, in coming to a conclusion that there would be
a natural inference in such circumstance under Section 113-A         B
and 113-B of the Indian Evidence Act, 1872, that the accused
persons had caused the death of Kripa Bai by torturing her
physically and mentally so as to drive the deceased to commit
suicide. Mr. Gupta submitted that both the Courts below appear
to have overlooked the fact that in order to prove a case of         C
dowry death it would have to be shown that in addition to the
fact that the death took place otherwise than in normal
circumstances within 7 years of marriage, that soon before her
death, the wife was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with,   D
any demand for dowry. It was pointed out by Mr. Gupta that in
the explanation to Sub-Section (1) of Section 304-B it had been
mentioned that for the purpose of the said Sub-Section, "dowry"
shall have the same meaning as under Section 2 of the Dowry
Prohibition Act, 1961.
                                                                     E
     4. Mr. Gupta also submitted that the provisions of Section
113-A of the Indian Evidence Act were not applicable in this
case since no case for abetment of suicide by the husband or
any of the husband's relatives had been alleged. On the other
hand, the case sought to be made out is one under Section            F
113-B relating to presumption as to dowry death. Mr. Gupta
submitted that the provisions in Section 113-B relating to
presumption as to dowry death are similar to that of Section
304-B IPC. He urged that in order to arrive at the presumption
of dowry death, it would have to be shown by the prosecution         G
that soon before her death, such woman had been subjected
to cruelty or harassment for, or in connection with, any demand
for dowry, which would lead to a presumption that such person
caused the dowry death.
                                                                     H
    108     SUPREME COURT REPORTS                   [201 OJ 7 S.C.R.


A       5. Mr. Gupta submitted that in the instant case, the
    Appellants had not been convicted under the provisions of the
    Dowry Prohibition Act, but under Section 304-8 and 498-A
    IPC. Mr. Gupta submitted that the prosecution had not
    established that prior to the death of the victim Kripa Bai, she
8   had been either subjected to cruelty or harassment for, or in
    connection with, any demand for dowry, particularly, when the
    Appellants had not been convicted under the provisions of the
    Dowry Prohibition Act, 1961.

          6. It was pointed out that the only evidence on which
C reliance had been placed both by the trial Court, as well as the
    High Court, for convicting the Appellants, was the evidence of
    Vimla Bai, PW.1, the mother of the deceased and
    Radheshyam, PW.3, the brother of the deceased. In fact, the
    prosecution story was that since no dowry had been received
D from the family of the victim, she had been beaten and treated
  . with cruelty. There is no other evidence regarding the physical
    and mental torture which the deceased was alleged to have
    been subjected to. Mr. Gupta urged that the marriage of the
    Appellant No.1 with the deceased was performed as part of a
E community marriage being celebrated on account of the poverty
    of couples who could not otherwise meet the expenses of
    marriage and that even the few utensils which were given at
    the time of such community marriage were given by the persons
    who had organized such marriages.
F
       7. Mr. Gupta submitted that the evidence in this case was
  wholly insufficient to even suggest that the victim had been
  subjected to cruelty or harassment which was sufficient to
  compel her to commit suicide. In support of his submissions,
  Mr. Gupta firstly referred to the decision of this Court in Biswajit
G Halder@ Babu Halder & Ors. vs. State of W.B. [(2008) 1 SCC
  202], wherein, in facts which were very similar, it was held that
  there was practically no evidence to show that there was any
  cruelty or harassment for, or in connection with, the demands
  of dowry. There was also no finding in that regard. It was further
H
    DURGA PRASAD AND ANR. v. STATE OF M.P.                     109
             [ALTAMAS KABIR, J.]
observed that this deficiency in evidence proved fatal for the         A
prosecution case and even otherwise mere evidence of cruelty
and harassment was not sufficient to attract Section 304-8 IPC.
It had to be shown in addition to that such cruelty or harassment
was for, or in connection with, demand of dowry. Mr. Gupta
urged that since the Appellants had not been convicted under           B
the provisions of the Dowry Prohibition Act, 1961, the charge
under Section 304-8 would also fail since the same was linked
with the question of cruelty or harassment for, or in connection
with, the demand for dowry.

       8. Mr. Gupta then urged that even the evidence of PW.3,
                                                                       c
  Radheshyam, and also that of PW.2, Ashok Kumar, were full
  of omissions as to their statements before the police authorities
  and their evidence during the trial. Mr. Gupta submitted that such
  omissions were also fatal to the prosecution case since the
  same was mere embellishment and improvement of the                   D
  evidence led by the prosecution. In this regard, Mr. Gupta
  referred to the decision of this Court in Shri Gopal & Anr. vs.
  Subhash & Ors. [(2004) 13 SCC 174]. In the said decision,
  while dealing with statements made by prosecution witnesses
  under Section 162 Cr.P.C. and omissions made during their            E
· evidence in Courts, this Court held that the same would amou'nt
  to contradiction and their evidence on such point would not,
  therefore, be acceptable.

      9. Mr. Gupta urged that both the trial Court, as well as the     F
 High Court, did not take into consideration any of the aforesaid
 matters while convicting the Appellants under Sections 304-8
 and 498-A IPC. Mr. Gupta urged that in such circumstances,
 the judgment and order of the trial Court, as well as that of the
 High Court, affirming the said judgment, are liable to be s
                                                                       G
 aside.

      10. Opposing the submissions made by Mr. R.P. Gupta,
 learned Senior Advocate, Ms. Vibha Datta Makhija, learned
 Advocate appearing for the State of Madhya Pradesh,
 submitted that the trial Court had considered the evidence of         H
    110     SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A Vimla Bai, PW.1, the mother of the deceased and
  Radheshyam, PW.3, the brother of the deceased, in coming
  to a finding that their evidence was sufficient to bring home the
  guilt of the Appellants under Sections 498-A and 304-8 IPC.

B       11. Ms. Makhija also reiterated the submissions which had
  been made before the trial Court regarding the presumption
  that was to be drawn both under Section 304-8 IPC, as also
  under Section 113-B of the Indian Evidence Act, 1872, having
  regard to the fact that Kripa Bai had committed suicide within
  7 years of her marriage. Ms. Makhija submitted that once it was
C found that by their actions the Appellants had driven Kripa Bai
  to commit suicide, the provisions of Section 304-8 IPC were
  immediately attracted and the Appellants, therefore, had been
  rightly convicted by the trial Court under Sections 498-A and
  304·-B IPC. Ms. Makhija urged that the evidence of PWs.1 and
D 3 were sufficient to meet the requirements of both Sections
  113·-B of the Indian Evidence Act and Section 304-8 IPC.

       12. Ms. Makhija then contended that as had been laid
  down by this Court in the case of Anand Kumar vs. State of
E MP. [(2009) 3 SCC 799], in order to counter the presumption
  available under Section 113-8, which is relatable to Section
  304-B, a heavy burden has been shifted on to the accused to
  prove his innocence. Having regard to the language of Section
  113-8 of the Indian Evidence Act, which indicates that when a
F question arises as to whether a person has committed the
  dowry death of a woman and it is shown that soon before her
  death such woman was subjected to cruelty or harassment by
  such other person or in connection with any demand for dowry,
  the Court shall presume that such person had caused such
G dowry death. Ms. Makhija urged that the aforesaid wording of
  Section 113-B of Evidence Act and the use of the expression
  "shall" would clearly indicate that the Court shall presume such
  death as dowry death provided the conditions in Section 113-
  8 were satisfied and it would then be for the accused to prove
  otherwise.
H
   DURGA PRASAD AND ANR. v. STATE OF M.P.                 111
            [ALTAMAS KABIR, J.]

    13. Ms. Makhija, thereupon, urged that the order of A
conviction passed by the trial Court holding the Appellants guilty
under Sections 498-A and 304-B IPC, confirmed by the High
Court, did not warrant any interference by this Court.

     14. Having carefully considered the submissions made on 8
behalf of the respective parties, we are inclined to allow the
benefit of doubt to the Appellants having particular regard to
the fact that except for certain bald statements made by PWs.1
and 3 alleging that the victim had been subjected to cruelty and
harassment prior to her death, there is no other evidence to C
prove that the victim committed suicide on account of cruelty
and harassment to which she was subjected just prior to her
death, which, in fact, are the ingredients of the evidence to be
led in respect of Section 113-B of the Indian Evidence Act,
 1872, in order to bring home the guilt against an accused under D
Section 304-B IPC.

     15. As has been mentioned hereinbefore, in order to hold
an accused guilty of an offence under Section 304-B IPC, it has
to be shown that apart from the fact that the woman died on
account of burn or bodily injury, otherwise than under normal E
circumstances, within 7 years of her marriage, it has also to
be shown that soon before her death, she was subjected to
cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry. Only
then would such death be called "dowry death" and such F
husband or relative shall be deemed to have caused the death
of the woman concerned.

     16. In this case, one other aspect has to be kept in mind,
namely, that no charges were framed against the Appellants
under the provisions of the Dowry Prohibition Act, 1961 and G
the evidence led in order to prove the same for th~ purposes
of Section 304-B IPC was related to a demand for a fan only.

     17. The decision cited by Mr. R.P. Gupta, learned Senior
 Advocate, in Biswajit Halder's case (supra) was rendered in     H
    112     SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A   almost similar circumstances. In order to bring home a
    conviction under Section 304-B IPC, it will not be sufficient to
    only lead evidence showing that cruelty or harassment had been
    meted out to the victim, but that such treatment was in
    connection with the demand for dowry. In our view, the
B   prosecution in this case has failed to fully satisfy the
    requirements of both Section 113-B of the Evidence Act, 1872
    and Section 304-B of the Indian Penal Code.

         18. Accordingly, we are unable to agree with the views
    expressed both by the trial Court, as well as the High Court,
C   and we are of the view that no case can be made out on the
    ground of insufficient evidence against the Appellants for
    conviction under Sections 498-A and 304-B IPC. The decision
    cited by Ms. Makhija in Anand Kumar's case (supra) deals with
    the proposition of shifting of onus of the burden of proof relating
D   to the presumption which the Court is to draw under Section
    113-8 of the Evidence Act and does not help the case of the
    State in a situation where there is no material to presume that
    an offence under Section 304-8 IPC had been committed.

E        19. In that view of the matter, we allow the Appeal and set
    aside the judgment of the trial Court convicting and sentencing
    the Appellants of offences alleged to have been committed
    under Sections 498-A and 304-8 IPC. The judgment of the High
    Court impugned in the instant Appeal is also set aside. In the
F   event, the Appellants are on bail, they shall be discharged from
    their bail bonds, and, in the event they are in custody, they
    should be released forthwith.

    D.G.                                             Appeal allowed.