Supreme Court of India
PREM KANWARversusSTATE OF RAJASTHAN
- Citation
- 2009 INSC 5
- Decided
- 7 January 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the High Court was justified in convicting the accused; the death constitutes a dowry death, "dowry" includes post‑marital demands without a formal agreement, and "soon before" requires a proximate causal link.
Summary
The deceased daughter‑in‑law was burnt to death within four years of her marriage. The prosecution alleged that the mother‑in‑law, husband and uncle repeatedly harassed and tortured her for not providing sufficient dowry. A post‑mortem showed ante‑mortem burns and fractured skull bones, indicating she was killed before being set alight. The trial court acquitted the accused, deeming it a suicide, but the Rajasthan High Court convicted them under Sections 306 and 304‑B IPC and Section 4 of the Dowry Prohibition Act, holding the death to be a dowry death. On appeal, the Supreme Court upheld the High Court, clarifying that "dowry" includes post‑marital demands and need not be based on a formal agreement, and that the phrase "soon before" is a relative term requiring a proximate link between harassment and death. The Court affirmed that the medical and circumstantial evidence satisfied the statutory ingredients for a dowry death, and that the High Court was justified in overturning the acquittal.
Issues considered
- The death qualifies as a dowry death under Sec. 304‑B IPC and Sec. 113‑B Evidence Act.
- Interpretation of "dowry" under the Dowry Prohibition Act, particularly whether a pre‑marital agreement is required.
- The meaning and applicability of the term "soon before" in establishing the link between harassment and death.
- Whether the High Court was empowered to set aside the trial court's acquittal.
- Whether the medical evidence establishes homicide prior to the burning.
Legislation cited
- Dowry Prohibition Act, 1961s. 2, s. 3, s. 4
- Indian Evidence Act, 1872s. 113B, s. 114
- Indian Penal Code, 1860s. 304B, s. 306
Subjects
dowry deathSection 304B IPCSection 113B Evidence Act"soon before" testpresumption of lawDowry Prohibition Actpost‑mortem evidenceappeal against acquittal
Judgment
[2009] 1 S.C.R. 37
PREM KANWAR A
)(
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 58 of 2002)
JANUARY 7, 2009 B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
+..
Penal Code, 1860:
c
s. 306 and 304-B - Dowry death - Death of daughter-in-
, law by burning - Acquittal of mother-in-law holding it to be a
case of suicide - However, conviction by High Court -
Justification of - Held: Justified - Post mortem report to the
effect that skull bones were found broken shows that before D
burning the deceased was killed - Evidence of prosecution
witnesses that accused was persistently taunting and
harassing deceased for not bringing sufficient dowry- Dowry
Prohibition Act, 1961 - s. 4.
... s. 304 B- Evidence Act, 1872 - s. 1138 - Dowry death E
- Essential ingredients to raise presumption under s. 113-B
- Held: Is that the concerned woman 'soon before her death'
was subjected to cruelty or harassment 'for or in connection
)(
with the demand of dowry' - 'Soon before' is a relative term -
.. It depends upon the facts and circumstances of the case - F
No strait-jacket formula can be laid down as to what would
constitute a period of soon before the occurrence - There
must be existence of proximate and live link between the
effect of cruelty on dowry demand and death.
G
Dowry Prohibition Act, 1961: ss. 2, 3 and 4 - Dowry -
Meaning of - Held: Dowry includes not only the period before
marriage but also the period subsequent to the marriage -
Demand of dowry refers to the demand of property or valuable
~-
37 H
38 SUPREME COURT REPORTS (2009] 1 S.C.R.
A security- Even demand of dowry on other ingredients being
satisfied is punishable - It is not always necessary that there
be any agreement for dowry- Penal Code, 1861 - s. 304 B.
It was the case of the father of the deceased that the
appellant-deceased's mother-in-law, her husband and
B
uncle used to torture, harass and humiliate her for not
bringing sufficient dowry. Within four years of marriage,
the deceased was killed by burning. FIR was registered.
Investigation was carried out. The doctor opined that the
cause of death of the deceased was asphyxia due to
c ante-mortem injuries. Accused were tried uls. 306 and
304-8 IPC ands. 4 of the Dowry Prohibition Act, 1961. Trial
court acquitted the accused holding it to be a case of
suicide. However, High Court convicted them as case of
suicide was not established; and there was evidence of
D murder of deceased before her burning. Hence the
present appeal.
Dismissing the appeal, the Court
HELD: 1.1. The explanation to s. 304 8 IPC refers to
E
dowry 'as having the same meaning as in s. 2 of the
Dowry Prohibition Act, 1961 '. The definition by
amendment includes not only the period before marriage
but also the period subsequent to the marriage. Demand
neither conceives nor would conceive of any agreement. :>'
F If for convicting any offender, agreement for dowry is to •
be proved, hardly any offenders would come under the
clutches of law. When Section 304-8 refers to 'demand
of dowry', it refers to the demand of property or valuable
security as referred to in the definition of 'dowry' under
G the Act. In cases of dowry deaths and suicides,
circumstantial evidence plays an important role and
inferences can be drawn on the basis of such evidence.
That could be either direct or indirect. It is significant that
Section 4 of the Act, was also amended by means of Act
H
PREM KANWAR v. STATE OF RAJASTHAN 39
;
63of1984, under which it is an offence to demand dowry A
" directly or indirectly from the parents or other relatives
or guardian of a bride. The word 'agreement' referred to
in Section 2 has to be inferred on the facts and
circumstances of each case. The argument that there has
th be an agreement at the time of the marriage in view of B
t e words 'agreed to be given' occurring therein, and in
the absence of any such evidence it would not constitute
to be a dowry, is misconceived. This would be contrary
f.
to the mandate and object of the Act. 'Dowry' definition
is to be interpreted with the other provisions of the Act c
including Section 3, which refers to giving or taking
dowry and Section 4 which deals with a penalty for
demanding dowry, under the Act and the IPC. This makes
it clear that even demand of dowry on other ingredients
being satisfied is punishable. It is not always necessary
D
that there be any agreement for dowry. The offence
alleged against the accused is under Section 304-8 IPC
which makes 'demand of dowry' itself punishable. The
argument that there is no demand of dowry, in instant
case, has no force. [Paras 8 and 9) [48-G-H; 49-A-G]]
E
1.2. As per the definition of 'dowry death' in·.Section
304-8 IPC and the wording in the presumptive Section
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 cruelty or harassment "for or in
F
connection with the demand of dowry". Presumption
under Section 113-8 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 G
caused the dowry death. The presumption shall be raised
only on proof of the following essentials: (1) The question
~ before the Court must be whether the accused has
committed the dowry death of a woman. (This means that
the presumption can be raised only if the accused is H
-.
40 SUPREME COURT REPORTS [2009] 1 S.C.R.
A being tried for the offence under Section 304-B IPC). (2)
The woman was subjected to cruelty or harassment by
her husband or his relatives. (3) Such cruelty or
harassment was for, or in connection with any demand
· for dowry. (4) Such cruelty or harassment was soon
B before her death. [Para 11] [50-F-G; 51-A-C]
1.3. A conjoint reading of Section 113-B of the
Evidence Act and Section 304-B IPC shows that there
must be material to show that soon before her death the
victim was subjected to cruelty or harassment.
C 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 in normal
circumstances'. The expression 'soon before' is very
relevant where Section 113-B of the Evidence Act and
D Section 304-B 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 operates. Evidence in that regard has to be
led by prosecution. 'Soon before' is a relative term and it
E 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. It
would be hazardous to indicate any fixed period, and that
brings in the importance of a proximity test both for the
F proof of an offence of dowry death as well as for raising
•
a presumption under Section 113-B of the Evidence Act.
The expression 'soon before her death' used in the
substantive Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test.
G 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. The determination of the period
which can come within the term 'soon before' is left to
H be determined by the Courts, depending upon facts and
\
PREM KANWAR v. STATE OF RAJASTHAN 41
circumstances of each case. Suffice, however, to indicate A
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 existence of a proximate and live-
link between the effect of cruelty based on dowry demand B
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. [Para 12] (51-C-H; 52-A-C]
.. 2.1. The doctors opined that cause of death of the C
deceased was Asphyxia due to ante mortem burns. He
has proved the post mortem report. Thus, from the post
mortem report and by the statement of PW-6, the fact that
deceased died because of burns is very well established
f and at the time of post mortem of the dead body of the D
deceased, her skull bones were found broken. In the case
of burning the fracture of skull is not a necessary
corollary. Therefore, the fact remains that she was killed
before death. Therefore, the High Court was justified in
holding that the Sessions Judge erroneously concluded E
that it was a case of suicide. [Paras 14, 15 and 16] (53-A-
C]
2.2. PW-7 is an independent witness who is
• neighbour of the accused. His evidence is of F
considerable importance. According to him, while he was
standing at the place where the deceased was burning
the witness told R for extinguishing the fire upon which
the appellant said that the deceased has been burnt and
let her burn and it is no use extinguishing the fire. This G
statement has been rightly highlighted by the High Court
to show that her role as alleged by the prosecution has
been established. [Para 17] [53-D-E]
2.3. The evidence of PWs 1, 2, 3, 4 and 5 clearly
shows the greed of the accused who was persistently H
42 SUPREME COURT REPORTS [2009] 1 S.C.R.
A taunting and harassing the deceased for not having
brought sufficient dowry. Therefore, the High Court was
justified in upsetting the order of acquittal passed by the
trial court and directing her conviction. [Para 21) [55-E-F]
Pawan Kumar and Ors. v. State of Haryana 1998 (3) SCC
B
309; Ajit Savant Majagavi v. State of Kamataka AIR 1997 SC
3255; Balbir Singh Vs. State of Punjab AIR 1957 SC 216;
Ram Kumar Vs. State of Haryana AIR 1995 SC 280; Bharwad
Jakshibhai Nagjibhai Vs. State of Gujarat AIR 1995 SC 2505;
Hari Chand Vs. State of Delhi AIR 1996 SC 1477; Raghbir
c Singh Vs. State of Haryana JT 2000 (5) SC 21; 1-fari Ram
Vs. State of Rajasthan JT 2000 (6) SC 254 and Ashok Kumar
Vs. State of Rajasthan AIR 1990 SC 2134, relied on.
Case Law Reference:
D 1998 (3) sec 309 Relied on. Para 8 '
AIR 1997 SC 3255 Relied on. Para 18
AIR 1957 SC 216 Relied on. Para 19
E AIR 1995 SC 280 Relied on. Para 19
AIR 1995 SC 2505 Relied on. Para 19
AIR 1996 SC 1477 Relied on. Para 19
JT 2000 (5) SC 21 Relied on. Para 19 <
F
JT 2000 (6) SC 254 Relied on. Para 19
AIR 1990 SC 2134 Relied on. Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 58 of 2002.
From the final Judgment and Order dated 25.4.2001 of the
High Court of Judicature of Rajasthan at Jodhpur in S.B.
Criminal Appeal No. 118 of 1990.
H Doongar Singh, Anupam Mishra and V.J. Francis for the
PREM KANWAR v. STATE OF RAJASTHAN 43
~. Appellant. A
Naveen Kumar Singh and Aruneshwar Gupta for the
Respondents.
The Judgment of the Court was delivered by
B
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a learned Single Judge of the Rajasthan High
Court at Jodhpur allowing the appeal filed by the State of
Rajasthan questioning correctness of the judgment of acquittal
passed by a learned Sessions Judge, Sriganganagar. The c
appellant and two others faced trial for alleged commission of
offence punishable under Sections 306 and 304 Part-B of the
Indian Penal Code, 1860 (in short the 'IPC') and Section 4 of
the Dowry Prohibition Act, 1961 (in short 'Dowry Prohibition
Act'). D
i
2. Prosecution version unfolded during trial is as follows:-
On 23-04-1988 at about 2.05 p.m., the accused Krishnalal
lodged an oral report Ex.P/12 before Jagmalram (PW-11) SHO,
.. Police Station Purani Abadi, Sri Ganganagar stating inter-alia E
that he was married with Smt. Raju, (hereinafter referred to as
the deceased) in the year 1984 and his father had already died
before 15 years back and since then he was living with his
~
mother Prem Kanwar, the present appellant and uncle Puran
/
Chand and he was not in service and thus was unemployed. F
On that day, he went out from his house for some work and
when he returned back at about 1.30 p.m. he found crowd near
his house and also found fire in his house and people were
- '
extinguishing the fire and he came to know that his wife, the
deceased was burnt and had died and, therefore, he had come G
to inform the police.
"" ..,
On this report, police registered the FIR No. 7/88 and
started investigation.
~
,
During investigation, postmortem of the dead body of the H
44 SUPREME COURT REPORTS [2009] 1 S.C.R.
A deceased was got conducted and the post mortem report is .•
Ex. P/3, where the doctors opined that the cause of the death
of the deceased was asphyxia due to ante-mortem burns.
When the investigation in FIR No. 7/88 was going on, PW
1 Bachna Ram, father of the deceased, lodged a written report
B
Ex. P/1 on 26-4-1988 before police station Purani Abadi, Sri
Ganganagar stating inter-alia that all the three accused have
murdered his daughter (deceased) by burning her and he had
also come to know that a report was also lodged on behalf of
the accused stating therein that the deceased had committed
c suicide, but the fact was that all the three accused have killed
her. It was further stated in the report that all the three accused
used to harass and torture her as she was an illiterate lady and
accused no 1 Krishnalal (husband of the deceased) was an
educated person and accused used to say that in dowry nothing
D was given to them and thus, they used to torture, harass and
humiliate her. It was further stated in the report that action be
:aken against the accused for killing her daughter (deceased)
by burning.
E On this report, police chalked out FIR Ex. P/2 for the
offence u/Ss. 306, 304 B IPC and started investigation.
After usual investigation, police submitted challan against
the accused respondents for the offence u/Ss. 306, 304 B IPC
in the court of magistrate holding inter alia that it was a case
F of dowry death. Thereafter, the case was committed to the
Court of Session.
As the accused persons denied the allegations trial was
held. Eleven witnesses were examined to establish the
G accusations. Learned Sessions Judge directed acquittal inter-
alia holding as follows:
,,.
1. That it is a case of suicide by the deceased.
2. That death of the deceased was caused due to
H burning and has taken place within seven years of
'
--r- PREM KANWAR v. STATE OF RAJASTHAN 45
[DR. ARIJIT PASAYAT, J.]
the marriage. A
~'
3. That Bachnaram (PW.I) father of the deceased took
the deceased to his house at the time of marriage
of his son and kept the deceased in his house for
12 months and during that period nobody came B
from her-in-laws' house to take her back.
4. That at the time of marriage of son of Rairam (PW-
+ 4), Bachnaram (PW-1) and PW.4 went to the house
of her in-laws to take deceased where accused
--"
,. Prem Kanwar (mother-in-law of the deceased) c
>
expressed her displeasure and told that deceased
be taken away by them and her clothes were thrown
•• away.
5. That above facts were admitted by the learned D
Sessions Judge at pages 19 and 20 of his
'· i
impugned judgment. However, he observed that this
statement of accused Prem Kanwar (mother-in-law
of the deceased) is to some extent objectionable,
but no case of dowry death or abetment of suicide E
is made from this part of her statement.
6. That prosecution has not been able to prove its
,,,. case beyond all reasonable doubts against the
~ accused respondents for the offence under
Sections 306 and 3048 IPC and Section 4 of the F
Dowry Prohibition Act."
It is to be noted that the three accused persons were
related to the deceased in the following manner:
G
Krishnalal is the husband of he deceased, Puran Chand
is the Uncle-in-law and Prem Kanwar, the present appellant is
the mother-in-law.
The High Court found that the conclusion of the trial Court
H
46 SUPREME COURT REPORTS (2009] 1 S.C.R.
A that the case was one of suicide was not established. The High
Court found that the possibility that before burning the
deceased was murdered was clear from1he evidence.
3. Learned counsel for the appellant submitted that
considering the limited nature of the scope of interference in a
8
matter of acquittal, the High Court ought not to have interfered,
particularly, when it found that the acquittal was in order so far
as the other co-accused persons are concerned. It was
submitted that the High Court's conclusion that the skull bones
C were broken, which rules out the case of suicide, is contrary to
",
medical evidence. The High Court noted that to bring in '
application of Section 304 Part B, it is immaterial whether the
death is suicidal or homicidal. .
4. With reference to the evidence of Dhanni Devi (PW-5)
D it was submitted that her evidence was not sufficient to fasten
the guilt on the appellant.
5. In response, learned counsel for the respondent-State
supported the judgment of the High Court.
E 6. In order to attract Section 3048 IPC, the following
ingredients are to be satisfied.
(i) The death of a woman must have been caused by bums
or bodily injury or otherwise than under normal
F circumstances.·
(ii) Such death must have occurred within 7 years of the
marriage.
(iii) Soon before her death, the woman must have been
G subjected to cruelty or harassment by her husband or any
relative of her husband; and
(iv) Such cruelty or harassment must be in connection with
the demand of dowry.
H
PREM KANWAR v. STATE OF RAJASTHAN 47
[DR. ARIJIT PASAYAT, J.)
Sections 3048 and Section 498A read as follows: A
"304-8. Dowry Death- (1) Where the death of a woman
is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she
B
was subjected 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 to
have caused her death.
c
Explanation - For the purpose of this sub-section 'dowry'
shall have same meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with D
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life."
"498-A: 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 E
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' F
means-
(a) any wilful conduct which is of such a nature as is likely
to drive the woman to commit suicide or tp cause grave
injury or danger to life, limb or health (whether mental or
.
---..
physical) of the woman; or G
... (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
H
48 SUPREME COURT REPORTS [2009] 1 S.C.R. -
A security or is on account of failure by her or any person
related to her to meet such demand." "
7. The term "dowry" has been defined in Section 2 of the
Dowry Prohibition Act, 1961 (in short 'Dowry Act') as under:-
B "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
c the marriage; or
(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,
D at or before or any time after the marriage in connection
with the marriage of the said parties, but does not include
dower or mehr in the case of persons to whom the Muslim
personal law (Shariat) applies.
E 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, unless they
are made as consideration for the marriage of the said
F
parties.
Explanation fl - The expression 'valuable security' has the
same meaning in Section 30 of the Indian Penal Code (45
of 1860)."
G
8. Explanation to Section 304-B refers to dowry "as having
the same meaning as in Section 2 of the Act", the question is ,...
: what is the periphery of the dowry as defined therein ? The
argument is, there has to be an agreement at the time of the
H marriage in view of the words "agreed to be given" occurring
-- PREM KANWAR v. STATE OF RAJASTHAN
[DR. ARIJIT PASAYAT, J.]
49
x therein, and in the absence of any such evidence it would not A
constitute to be a dowry. It is noticeable, as this definition by
amendment includes not only the period before and at the
marriage but also the period subsequent to the marriage. This
position was highlighted iri Pawan Kumar and Ors. v. State of
Haryana (1998 (3) SCC 309). B
9. The offence alleged against the accused is under
,,_ Section 304-B IPC which makes "demand of dowry" itself
punishable. Demand neither conceives nor would conceive of
"' any agreement. If for convicting any offender, agreement for
dowry is to be proved, hardly any offenders would come under
c
the clutches of law. When Section 304-B refers to "demand of
dowry", it refers to the demand of property or valuable security
as referred to in the definition of "dowry" under the Act. The
argument that there is no demand of dowry, in the present case,
has no force. In cases of dowry deaths and suicides, D
circumstantial evidence plays an important role and inferences
can be drawn on the basis of such evidence. That could be
either direct or indirect. It is significant that Section 4 of the Act,
was also amended by means of Act 63 of 1984, under which
it is an offence to demand dowry directly or indirectly from the E
parents or other relatives or guardian of a bride. The word
"agreement" referred to in Section 2 has to be inferred on the
facts and circumstances of each case. The interpretation that
" the accused seek, that conviction can only be if there is
agreement for dowry, is misconceived. This would be contrary F
to the mandate and object of the Act. "Dowry" definition is to
be interpreted with the other provisions of the Act including
Section 3, which refers to giving or taking dowry and Section
4 which deals with a penalty for demanding dowry, under the
Act and the IPC. This makes it clear that even demand of dowry G
on other ingredients being satisfied is punishable. It is not
always necessary that there be any agreement for dowry.
10. Section 113-B of the Evidence Act is also relevant for
the case at hand. Both Section 304-B IPC and Section 113-B
H·
50 SUPREME COURT REPORTS [2009] 1 S.C.R.
A of the Evidence Act were inserted as noted earlier by the Dowry
Prohibition (Amendment) Act 43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113-B reads
as follows:-
"113-B: Presumption as to dowry death - When the
B
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 for dowry, the Court shall presume that such
c person had caused the dowry death.
Explanation - For the purposes of this section 'dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860)."
D
11. The necessity for insertion of the two provisions has
been amply analysed by the Law Commission of India in its
21st Report dated 10th August, 1988 on 'Dowry Deaths and
Law Reform'. Keeping in view the impedimentin the pre-
E existing law in securing evidence to prove dowry related deaths,
legislature thought it wise to insert a provision relating to
presumption of dowry death on proof of certain essentials. It is
in this background presumptive Section 113-B in the Evidence
Act has been inserted. As per the definition of 'dowry death' in
Section 304-B IPC and the wording in the presumptive Section
F 113-B 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-B is a presumption of
G law. On proof of the essentials mentioned therein, it becomes
obligatory on the Court to raise a presumption that the accused
caused the dowry death. The presumption shall be raised only
on proof of the following essentials:
H (1) The question before the Court must be whether the
PREM KANWAR v.. STATE OF RAJASTHAN 51
[DR. ARIJIT PASAYAT, J.]
accused has committed the dowry death of a woman. A
(This means that the presumption can be raised only if the
accused is being tried for the offence under Section 304-
8 IPC).
(2) The woman was subjected to cruelty or harassment by
8
her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection
with any demand for dowry.
(4) Such cruelty or harassment was soon before her death. c_
12. A conjoint reading of Section 113-8 of the Evidence
Act and Section 304-8 IPC shows that there must be material
to show that soon before her death the victim was subjected
to cruelty or harassment. Prosecution has to rule out the
possibility of a natural or accidental death so as to bring it within D
the purview of the 'death occurring otherwise than in normal
t circumstances'. The expression 'soon before' is very relevant
N where Section 113-8 of the Evidence Act and Section 304-8
~ IPC are pressed into service. Prosecution is obliged to show
~
'°
0IJ
that soon before the occurrence there was cruelty or E
harassment and only in that case presumption operates.
Evidence in that regard has to be led by prosecution. 'Soon
. ._ (\j 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 F
before the occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a proximity
test both for the proof of an offence of dowry death as well as
for raising a presumption under Section 113-8 of the Evidence
Act. The expression 'soon before her death' used in the G
substantive Section 304-8 IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression 'soon
before' is not defined. A reference to expression 'soon before'
used in Section 114. Illustration (a) of the Evidence Act is H
•
52 SUPREME COURT REPORTS [2009] 1 S.C.R. -
A relevant. It lays down that a Court may presume that a man who
is in the possession of goods 'soon after' the theft, is either the
thief or has received the goods knowing them to be stolen,
unless he can account for his possession. The determination
of the period which can come within the term 'soon before' is
B 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
l,.
interval should not be much between the concerned cruelty or .......
harassment and the death in question. There must be existence
c of a proximate and live-link between the effect 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.
D 13. The Medical evidence is found in the statement of Dr.
Rajendra Kuinar Gupta. (PW-6). He stated that for conducting
the postmortem of the dead body of the deceased, a Medical
Board was constituted on 25-04-1988 and apart from him, Dr.
O.P. Sharma and Dr. Avinash Sardana were members of the
E Board. He further stated that dead body of the deceased was
received on 23-04-1988 at about 8.00 p.m. and same was kept
on ice and post mortem of the dead body of the deceased was
conducted on 25-04-1988 and on examination, following
aspects were noticed:
F
1. That whole body was burnt.
2. That hairs of head of the deceased were totally
burnt.
G 3. That outer portion of the skull had come out.
4. That there were nine bangles and one kada in the
Left forearm of the deceased.
5. That bones of skull of the deceased were broken.
H
PREM KANWAR v. STATE OF RAJASTHAN 53
[DR. ARIJIT PASAYAT, J.]
14. The doctors opined that cause of death of the A
deceased was Asphyxia due to ante mortem burns. He has
proved the post mortem report Ex.P/3.
15. Thus, from the post mortem report Ex.P/3 and by the
statement of Dr. Rajendra Kumar Gupta (PW-6), the fact that 8
deceased died because of burns is very well established and
at the time of post mortem of the dead body of the deceased,
her skull bones were found broken.
16. In the case of burning the fracture of skull is not a
necessary corollary but in the present case the skull bones were . C
broken. Therefore, the fact remains that she was killed before
death. Therefore, the High Court was justified in holding that
the Sessions Judge erroneously concluded that it was a case
of suicide.
D
17. Jasvinder Singh (PW-7) is an independent witness
who is neighbour of the accused. His evidence is of
considerable importance. According to him, while he was
, standing at the place where the deceased was burning the
witness told Ramdev for extinguishing the fire upon which the E
appellant said that the deceased has been burnt and let her
· burn and it is no use extinguishing the fire. This statement has
been rightly highlighted by the High Court to show that her role
as alleged by the prosecution has been established.
. 18. The principles which would govern and regulate the F
hearing of appeal by the High Court against an order of
acquittal passed by the trial Court have been set out in
innumerable cases of this Court and in Ajit Savant Majagavi
v. State of Karnataka (AIR 1997 SC 3255) the following
.... principles have been re-iterated: G
-· 1. In an appeal against an order of acquittal, the High Court
possesses all the powers and nothing less than the powers
it possesses while hearing an appeal against an order of
conviction.
H
54 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 2. The High Court has the power to reconsider the whole ,.
issue, reappraise the evidence and come to its own
conclusion and findings in place of the findings recorded
by trial Court, if the said findings are against the weight of
the evidence on record, or in other words, perverse.
B
3. Before reversing the finding of acquittal, the High Court
has to consider each ground on which the order of acquittal
was based and to record its own reasons for not accepting
those grounds not subscribing to the view expressed by
the trial court that the accused is entitled to acquittal.
c
4. In reversing the finding of acquittal, the High Court has
to keep in view the fact that the presumption of innocence
is still available in favour of the accused and the same
stands fortified and strengthened by the order of acquittal
D passed in his favour by the trial court.
5. If the Hig~ourt on a fresh scrutiny and re-appraisal of
the evidence and other material on record, is of the opinion
that there is another view which can be reasonably taken,
then .the view which favours the accused should be
E
adopted.
6. The High Court has also to keep in mind that the trial
court had the advantage of looking at the demeanor of
witnesses and observing their conduct in the Cou.rt ..
F especially in the witness box.
7. The High Court has also to keep in mind that even at
that stage, the accused was entitled to benefit of doubt.
The doubt should be such as a reasonable person would ·
G honestly and conscientiously entertain as to the guilt of the ,,.
accused.
19. In this respect, the decisions of this Court in Balbir
Singh Vs. State of Punjab (AIR 1957 SC 216) Ram Kumar
Vs. State of Haryana (AIR 1995 SC 280), Bharwad Jakshibhai
H Nagjibhai vs. State of Gujarat (AIR 1995 SC 2505), Hari ·--..
PREM KANWAR v. STATE OF RAJASTHAN 55
[DR. ARIJIT PASAYAT, J.]
Chand Vs. State of Delhi (AIR 1996 SC 1477), Raghbir Singh A
Vs. State of Haryana (JT 2000 (5) SC 21 ), and Hari Ram Vs.
State of Rajasthan (JT 2000 (6) SC 254) may be seen.
20. In Ashok Kumar Vs. State of Rajasthan (AIR 1990 SC
2134) this Court has held as under: B
"While caution is the watchword, in appeal against
acquittal as the trial Judge has occasion to watch
demeanour of witnesses interference should not be made
merely because a different conclusion could have been
arrived at. Prudence demands restraint on mere probability C
or possibility but in perversity or misreading interference
is imperative otherwise existence of power shall be
rendered meaningless. In the present case the order of the
trial Court is vitiated as part from deciding the case on
irrelevant consideration the most serious error of which he D
was guilty and which rendered the order infirm which could
be set aside by the High Court was that he misread the
evidence and indulged in conjectural inferences and
surmises.
E
21. The evidence of PWs 1, 2, 3, 4 and 5 clearly shows
the greed of the accused who was persistently taunting and
harassing the deceased for not having brought sufficient dowry.
Therefore, the High Court was justified in upsetting the order
of acquittal passed by the trial Court and directing her
conviction. We find no merit in this appe91 which is accordingly F
dismissed.
N.J. Appeal dismissed.
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