Holding

The Supreme Court held that the prosecution had established the requisite "soon before" cruelty linked to a dowry demand, creating a live link between the harassment and the death, and therefore the conviction under Section 304‑B IPC stands.

Summary

The appellant Kamesh Panjiyar was convicted under Section 304‑B IPC for the dowry death of his wife, Jaikali Devi, and sentenced to ten years' rigorous imprisonment, later reduced to seven years by the High Court. He appealed to the Supreme Court, contending that there was no live link between the alleged dowry demand and the death and that the post‑mortem report could not ascertain the cause of death. The Court examined the statutory requirements of Section 304‑B IPC and Section 113‑8 of the Evidence Act, emphasizing the necessity of proving that the woman was subjected to cruelty or harassment "soon before" her death in connection with a dowry demand. Evidence showed that dowry was demanded shortly before the death, the deceased suffered injuries on the neck, and blood‑stained fluid was found, indicating non‑natural death. The Court held that the prosecution had satisfied the "soon before" element and the presumption under Section 113‑8, thereby establishing a proximate link between the cruelty and the death. Consequently, the conviction and the modified sentence were upheld and the appeal dismissed.

Issues considered

Whether the prosecution proved the essential ingredient of "soon before her death" cruelty or harassment in connection with a dowry demand to invoke the presumption under Section 113‑8 of the Evidence Act.
Whether the death of the deceased was a natural/accidental death or could be attributed to dowry‑related cruelty, satisfying the requirement of Section 304‑B IPC.
Whether the conviction and sentence awarded by the trial court and modified by the High Court are sustainable on the evidence on record.

Legislation cited

Dowry Prohibition Act, 1961s. 2
Indian Evidence Act, 1872s. 113-8
Indian Penal Code, 1860s. 304-8, s. 304-B

Subjects

dowry deathSection 304-B IPCSection 113-8 Evidence Actpresumption of lawsoon beforeproximate causecriminal appealconviction

Judgment

\

>

...r
KAMESH PANJIY AR @ KAMLESH PANJIY AR A
I'.

STATE OF BIHAR

FEBRUARY I, 2005

[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] B

Penal Code, 1860 :

S. 304-B-Dowry death-Iligredients-Explained-On facts, evidence
on record established demand of dowry and ill-treatment of deceased shortly c
before date of occurrence-There is no evidence that death was due to normal
reasons-Commission of offence by accused established-Conviction and
sentence awarded by trial court as modified by High Court suffer from no
infirmity to warrant interference.

Evidence Act, 1872 : D
·~

s.113-8-Presumption as to dowry death-Essentials to be proved-
J
Explained.

Words and phrases :
E
Expression "soon before her death" as occurring in s.304-8 !PC and
s.1138, Evidence Act-Connotation of

Appellant was prosecuted under s.304-B IPC for dowry death of his
wife, the sister of the informant. The prosecution case was that the
-t
,_ deceased complained ill-treatnient and torture at the hands of the appellant F
> and his family members for non-fulfilling their demand of dowry. The trial
court convicted the appellant of the offence and sentenced him to I 0 years
rigorous imprisonment. On appeal by the accused, the High Court
confirmed the conviction but reduced the sentenced to 7 years RI.
G
In the appeal filed by the accused before the Supreme Court it was
contended for the appellant that there was no live link between the. dowry
·\
demand and the death of the deceased and that the doctor categorically
stated that cause of death was not ascertainable, and as such, the courts
below erred in recording conviction of the appellant.
903 H
904 SUPREME COURT REPORTS (2005] 1 S.C.R.
..,_
A Dismissing the appeal, the Court

HELD: I.I. As per the definition of 'dowry death' in s.304-8 IPC
and the wording in the presumptive s. 113-8 of the Evidence Act, one of
the essential ingredients, amongst others, in both the provisions is that the
concerned woman must have been "soon before her death" subjected to
B cruelty or harassment "for or in connection with the demand of dowry".
Presumption under s. 113-8 of the Evidence Act is a presumption of law.
On proof of the essentials mentioned therein, it becomes obligatory on the
Court to raise a presumption that the accused caused the dowry death.
Prosecution has to rule out the possibility of a natural or accidental death
so as to bring it within the purview of the 'death occurring otherwise than
c in normal circumstances'. The expression 'soon before' is very relevant
where s. 113-8 of the Evidence Act and s. 304-8 IPC are pressed into
service. Prosecution is obliged to show that soon before the occurrence
there was cruelty or harassment and only in that case presumption I
operates. Evidence in that regard has to be led by prosecution.
D (909-A-8-E-Fl
t
1.2. 'Soon before' is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid down
as to what would constitute a period of soon before the occurrence. The
expression 'soon before her death' used in the substantive s. 304-8 IPC
E and s. 113-8 of the Evidence Act is present with the idea of proximity test.
No definite period has been indicated and the expression 'soon before' is
not defined. There must be existence of a proximate and live-link between
the effects of cruelty based on dowry demand and the concerned death. If
alleged incident of cruelty is remote in time and has become stale enough
not to disturb mental equilibrium of the woman concerned, it would be
F .... ,__
of no consequence. [909-F-H; 910-A-CI
-I
1.3. In the instant case, evidence of Pws I, 3 and 6 amply established
demand of dowry and ill treatment of the deceased shortly before the date
of occurrence. The trial court and the High Court were justified in drawing
G the conclusion about guilt of the accused. If the death was normal as
claimed by the accused, nothing was brought on record to explain injuries
on the neck of the deceased. As noted by the trial court and t.he High
t-
Court, black stained rough skin on both sides of neck was found. It has
also been noticed by the doctor who conducted the post-mortem
examination that blood stained fluid was trickling from the side of mouth
H
KAMESH PAN.llYAR v. STATE OF BIHAR (ARIJIT PASAYAT. J.] 905
__,.·
and brain matters were found congested. The doctor unfortunately did. A
not consider the effect of the marks on the neck and trickling of blood
stained fluid from the mouth. The 1.0. (PW-9) had seized a blood stained
pillow. There was no evidence that the death was due to normal reasons.
The evidence on record clearly establishes the commission of offence by
the accused. Therefore, the conviction and the modified sentence as
imposed by the High Court do not suffer from any infirmity to warrant B
interference. (9Jl-G-H; 912-A-Cf

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 205
of 2005.

From the Judgment and Order dated 15.10.2003 of the Patna High C
Court in Crl.A.No. 39 of I 992(SJ) .
...
Prabhash Kumar Yadav and Dr. Krishan Singh Chauhan for the
Appellant.
D
- .. B.B. Singh and Kumar Rajesh Singh for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Leave granted.

Marriages are made in heaven, is an adage. A bride leaves the parental E
home for the matrimonial home, leaving behind sweet memories therewith a
hope that she will see a new world full of love in her groom's house. She
leaves behind not only her memories, but also her surname, gotra and
maidenhood. She expects not only to be a daughter-in-law, but a daughter in
fact. Alas! the alarming rise in the number of cases involving harassment to F
the newly wed girls for dowry shatters the dreams. In-laws are characterized
to be outlaws for perpetrating terrorism which destroys the matrimonial home.
The terrorist is dowry, and it is spreading tentacles in every possible direction.

Appellant calls in question legality of the judgment rendered by a learned
Single Judge of the Patna High Court upholding his conviction for offences G
punishable under Section 304-B of the Indian Penal Code, 1860 (in short the
1 'IPC'), while reducing sentences to seven years rigorous imprisonment from
ten years imprisonment as was awarded by learned Sessions Judge, Sitamarhi.

Prosecution version as unfolded during trial is as follows :
H
906 SUPREME COURT REPORTS (2005] I S.C.R.

A Jaikali Devi (hereinafter referred to as the deceased) was sister of the
informant, Sudhir Kumar Mahto (PW-6). She was married to appellant in
1988. Duragaman was subsequently performed in the month of August, 1989.
A sum of Rs. 40,000 was demanded in dowry at the time of marriage and the
same was paid. Subsequently, demand for a she-buffalo was made by the
appellant at the time of Duragaman which could not be fulfilled. Informant
B Sudhir Kumar Mahto (PW-6) went several times to the house of her sister
and made request for Bidagari of her sister, but the same was not allowed,
and on the contrary demand of she-buffalo was pressed. The deceased
complained of ill-treatment and torture at the hands of the appellant and other
members of his family. The informant was also abused. On 28.11.1989 at
C about 7.00 a.m., the informant heard some rumour in the village that her
sister-the deceased was murdered by the appellant and his family members,
and they were contemplating to dispose of the dead body. Thereafter, the
informant along with his father Bachu Mahto (PW-3), brother Anup Mahto
(PW-5) and uncle Bhuneshwar Mahto (PW-7) went to the village of the
appellant and found that the dead body of her sister was lying in the verandah
D of the appellant's house and some blood was oozing from her mouth and
there were mark of violence on her neck and it appeared that his sister was
murdered by strangulation in the previous night. The officer ln··charge of
Kanhauli Police Station reached in the village Araria on hearing rumours
about murder of a lady and he recorded the Fardbeyan (Ext. I) of the informant.
E He sent Fardbeyan to the Officer In-charge of Kanhauli Police Station for
instituting a case. He made inquest on the dead body of the deceased and
prepared inquest report and sent the dead body to Sitamarhi Sadar Hospital
for post mortem examination and a formal FIR was drawn up. The police
after completion of investigation submitted charge sheet.

F Appellant pleaded innocence. In order to further its version prosecution
examined 9 witnesses. As noted above, Sudhir Kumar Mahto (PW-6) was the
informant. According to his evidence shortly before the occurrence, he had
talked with his sister i.e. the deceased, who told him about the tortures meted
out to her for not bringing the dowry articles. To similar effect is the evidence
of Dayanand Mahto (PW- I) who claimed to have accompanied PW-6 and
G heard deceased telling PW-6 about the torture. Bachu Malito (PW-3) the
father of the deceased also stated about the demand. PW-8 is the doctor who
conducted the post-mortem. Three witnesses were examined by the accused
to substantiate his plea that the deceased had rheumatic disease and she died
because of this. The trial Court considered the evidence on record and came
H to hold that the presumption in terms of Section 113(8) of the Indian Evidence
>--

KAMESH PANJ!YAR v. STATE OF BIHAR [ARIJIT PASAYAT.1.) 907
-< Act, 1872 (in short 'the Evidence Act') was to be drawn and since the
A
deceased did not die a natural death as claimed, the accused was guilty of
offence in terms of Section 304-B !PC. It was noticed that there was no
evidence to show that the deceased suffered from any rheumatic disease. The
evidence of DWs was found to be unreliable. Accordingly, conviction in
tenns of Section 304-B was recorded and ten years sentence was imposed.
B
Questioning the conviction and the sentence as awarded by the learned
trial Judge, the accused filed an appeal before the High Court. As noted
above, the High Court upheld the conviction but reduced the sentence.

In support of the appeal, learned counsel for the appellant submitted
that the doctor (PW-8) had categorically stated that the causes of death was c
not ascertainable. The trial Court and the High Court were not justified in
~ applying Section 304-B !PC to the facts of the case. There was no livelink
established between the alleged demand of dowry and the purported unnatural
death. That being so, the conviction as recorded is not tenable.

D
,, ,. In response, learned counsel for the State submitted that the Courts
below have analysed the factual position in detail and found the accused-
appellant guilty. That being so, no fault can be found with the orders of the
Courts below.

Section 304-B IPC deals with dowry death which reads as follows :
E
"3048. Dowry Death - (!)where the death of a woman is caused by
any bums or bodily injury or occurs otherwise than under nonnal
circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or in connection with p
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
some meaning as in Section 2 of the Dowry Prohibition Act, 1961
(28 of 1961). G
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years· but
which may extend to imprisonment for life.

The provision has application when death of a woman is caused by any burns H
908 SUPREME COURT REPORTS [2005) I S.C.R.

A or bodily injury or occurs otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or any relatives of her
husband for, or in connection with any demand for dowry.

In order to attract application of Section 304-IPC, the essential
B ingredients are as follows :
(i) The death of a woman should be caused by burns or bodily injury
or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her
marriage.
c
(iii) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with
demand of dowry.
D (v) Such cruelty or harassment is shown to have been meted out to
be the woman soon before her death.

Section 1138 of the Evidence Act is also relevant for the case at hand. Both
Section 304-B IPC and Section 1138 of the Evidence Act were inserted by
the Dowry prohibition (Amendment) Act 43of1986 with a view to combat
E the increasing menace of dowry deaths. Section l 13b reads as follows :

"l l 3B: Presumption as to dowry death - when the question is whether
a person has committed the dowry death of a woman and it is shown
that soon before her death such woman has been subjected by such
person to cruelty or harassment for, or in connection with, any demand
F for dowry, the Court shall presume that such person had caused the .....
dowry death.
Explanation - For the purposes of this section 'dowry death' shall
have the same meaning as in Section 304-B of the Indian P(:nal Code
(45 of 1860)."
G
The necessity for insertion of the two provisions has been amply analysed by
the Law Commission of Indian in its 21st Report dated I 0th August, 1988 on
'Dowry Deaths and Law Refonn'. Keeping in view the impediment in the
pre-existing law in securing evidence to prove dowry related deaths, legislature
H thought it wise to insert a provision relating to presumption of dowry death
KAMESH PANJIYAR v. STATE OF BIHAR [ARl.llT PASA YAT • .I.) 909

on proof of certain essentials. It is in this background presumptive Section A
1138 in the Evidence Act has been inserted. As per the definition of 'dowry
death' in Section 3048 !PC and the wording in the presumptive Section 1138
of the Evidence Act, one of the essential ingredients, amongst others, in both
the provisions is that the concerned woman must have been "soon before her
death" subjected to cruelty or harassment "for or in connection with the
demand of dowry". Presumption under Section 113 8 is a presumption of B
law. On proof of the essentials mentioned therein, it becomes obligatory on
the Court to raise presumption that the accused caused the dowry death. The
presumption shall be raised only on proof of the following essentials :

(I) The question before the Court must be whether the accused has C
committed the dowry death of a woman. (This means that the
presumption can be raised only if the accused is being tried for the
offence under Section 3048 IPC).

(2) The woman was subjected to cruelty or harassment by her husband
or his relatives.
D
(3) Such cruelty or harassment was for, or in connection with any
demand for dowry.

(4) Such cruelty or harassment was soon before her death.

A conjoint reading of Section I 138 of the Evidence Act and Section E
304-8 shows that there must be material to show that soon before her. death,
the victim was subjected to cruelty or harassment. Prosecution has to ru:.! out
the possibility of a natural or accidental death so as to bring it within the

- _...
purview of the 'death occurring otherwise than in normal circumstances'.
The expression 'soon before' is very relevant where Section 1138 of the
Evidence Act and Section 3048 IPC are pressed into service. Prosecution is F
obliged to show that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates. Evidence in that
regard has to be led by prosecution. 'Soon before' is a relative term and it
' would depend upon circumstances of each case and no strait<jacket formula
can be laid down as to what would constitute a period of soon before the G
occurrence. It would be hazardous to indicate any fixed period, and that
-t brings in the importance of a proximity test both for the proof of an offence
of dowry death as well as for raising a presumption under Section 113 8 of
the Evidence Act. The expression 'soon before her death' used in the
substantive Section 3048 IPC and Section 1138 of the Evidence Act is
H
910 SUPREME COURT REPORTS [2005] I S.C.R.

A present with the idea of proximity test. No definite period has been indicated
and the expression ·soon before' is not defined. A reference to expression
'soon before' used in Section 114. Illustration (a) of the Evidence Act is
relevant. It lays down that a Court many presume that a man who is in the
possession of goods soon after the theft, is either the thief has received the
goods knowing them to be stolen, unless he can account for his possession.
B The determination of the period which can come within the term 'soon before'
is left to be determined by the Courts, depending upon facts and circumstances
of each case. Suffice, however, to indicate that the expression 'soon before'
would normally imply that the interval should not be much between the
concerned cruelty or harassment and the death in question. There must be
C existence of a proximate and iive-link between the effects of cruelty based on
dowry demand and the concerned death. If alleged incident of cruelty is
remote in time and has become stale enough not to disturb mental equilibrium
of the woman concerned, it would be of no consequence.

Consequences of cruelty which are likely to drive a woman to commit
D suicide or to cause grave injury or danger to life, limb or health, whether
mental or physical of the woman is required to be established in order to .... ,.
bring home the application of Section 498A IPC. Cruelty has been defined
in lhe Explanation for the purpose of Section 498A. Substantive Section
498A IPC and presumptive Section I I3A of the Evidence Act have been
inserted in the respective statutes by Criminal Law (Second Amendment)
E Act, 1983. It is to be noted that Sections 3048 and 498A, IPC cannot be held
to be mutually inclusive. These provisions deal with two distinct offences. It
is true that cruelty is a common essential to both the Sections and that has
to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'.
In Section 3048 thereis no such explanation about the meaning of 'crue:lty'.
F But having regard to common background to these offences it has to be taken
that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the
Explanation to Section 498A under which 'cruelty' by itself amounts to an
offence. Under Section 3048 it is 'dowry death' that is punishable and such
death should have occurred within seven years of marriage. No such period
is mentioned in Section 498A. If the case is established, there can be a
G conviction under both the sections. (See Aku/a Ravinder and Ors. v. The
State of A ndhra Pradesh, AIR ( 1991) SC 1142. Period ofoperation of Section
1138 of the Evidence Act is Seven Years, Presumption arises when a woman
committed suicide within a period of seven years from the date of marriage.

Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act')
H
KAMESH PAN.llY AR'" STATE OF Bll-IAR [ARl.llT PASAYAT . .I.] 911

defines "dowry" as under :- A
Section 2. Definition of 'dowry' - In this Act, 'dowry' means any
property or valuable security given or agreed to be given either directly
or indirectly -

(a) by one party to a marriage to the other party to the marriage;
or B
(b) by the parents of either party to a marriage or by any other
person, to either party to the marriage or to any other person,
at or before or any time after the marriage !n connection with the
marriage of the said parties, but does not include dower or mehr in C
the case of persons to whom the Muslim personal law (Shariat) applies.

Explanation I - For the removal of doubts, it is hereby declared that
any presents made at the time of a marriage to either party to the
marriage in the form of cash, ornaments, clothes or other articles,
shall not be deemed to be dowry within the meaning of this section, D
unless they are made as consideration for the marriage of the said
parties.

Explanation II - The expression 'valuable security' has the same
meaning in Section 30 of the Indian Penal Code (45 of 1860)."
E
The word "dowry" in Section 304-B !PC has to be understood as it is
defined in Section 2 of the Dowry Act. Thus, there are three occasions
related to dowry. One is before the marriage, second is at the time of marriage
and the third "at any time" after the marriage. The third occasion may appear
to be unending period. But the crucial words are "in connection with the
marriage of the said parties". Other payments which are customary payments F
e.g. given at the time of birth of a child or other ceremonies as are prevalent
in different societies are not covered by the expression "dowry". (See Satvir
Singh v. State of Punjab, [200 I] 8 SCC 63 3 As was observed in said case
"suicidal death" of a married woman within seven years of her marriage is
covered by the expression "death of a woman is caused ...... or occurs otherwise G
than under normal circumstances" as expressed in Section 304-B !PC.

In the instant case, great stress has been laid on the opinion of the
doctor that possible cause of death was not ascertainable. As noted by the
trial Court and the High Court, black stained rough skin on both sides of neck
was found. It has also been noticed by the doctor who conducted the post- H
912 SUPREME COURT REPORTS (2005] I S.C.R. ·

A mortem examination that blood stained fluid was trickling from the side of
mouth and brain matters were found congested. The doctor unfot1tmately did
not consider the effect of the marks on the neck and trickling of blood stained
fluid from the mouth. The 1.0. (PW-9) had seized a blood stained pillow.
There was no evidence that the death was due to normal reasons. Evidence
of PWs I, 3 and 6 amply established demand of dowry and ill treatment of
B the deceased shortly before the date of occurrence. The trail Court and the
• High Court were justified in drawing the conclusion about guilt of the accus1~d.
Though attempt was made to show that had the accused been guilty he along
with family members would not have tried to get treatment for the deceased.
The reason for this is not far too seek. The accused person and others were
C typing to create a smoke screen. If the death was normal as claimed by the
accused, nothing was brought on record to explain injuries on the neck of the
deceased. The evidence on record clearly establishes the commission of offence
by the accused. Therefore, the conviction and the modified sentence as imposed
by the High Court do not suffer from any infirmity to warrant interference.

D The appeal is dismissed.

R.P. Appeal dismissed.

~-
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