Holding

The Supreme Court set aside the conviction under Sec. 302 IPC, held that Sec. 113‑B cannot be applied due to lack of proof of cruelty/harassment, but affirmed conviction under Sec. 498A IPC.

Summary

Neelam Rani died from burns in 1987. The husband (appellant) and his father were convicted by the Sessions Court of murder (Sec. 302 IPC), dowry death (Sec. 304B IPC) and cruelty for dowry (Sec. 498A IPC). The High Court upheld the murder conviction and acquitted the father. On appeal, the Supreme Court held that the evidence was insufficient to prove that the appellant caused the fire or that the death qualified as a dowry death, because the prosecution failed to establish that the wife was subjected to cruelty or harassment "soon before" her death, a prerequisite for invoking the presumption under Sec. 113‑B of the Evidence Act. However, the Court found ample evidence of dowry‑related cruelty under Sec. 498A, particularly the testimony of the father‑in‑law. Consequently, the murder conviction under Sec. 302 was set aside, the appellant was convicted under Sec. 498A and sentenced to three years rigorous imprisonment.

Issues considered

Whether the evidence proved that the appellant caused the death of Neelam Rani, justifying a conviction under Sec. 302 IPC.
Whether the legal presumption under Sec. 113‑B of the Evidence Act can be invoked to sustain a conviction under Sec. 304B IPC (dowry death).
Whether the prosecution established the offence of cruelty or harassment for dowry under Sec. 498A IPC.

Legislation cited

Indian Evidence Act, 1872s. 113-B, s. 32
Indian Penal Code, 1860s. 302, s. 304B, s. 498A

Subjects

dowry deathmurderSection 304B IPCSection 498A IPCpresumption under Evidence Actcriminal appealburden of proof

Judgment

I

SHAM LAL A
v.
STATE OF HARYANA ETC.
...
FEBRUARY 20, 1997

[MADAN MOHAN PUNCHHI AND K.T. THOMAS, JJ.] B

Indian Penal Code, 1860 :
- S. 498-A-Wife subjected to cruelty by husband and his relations--Wife
of appellant died of bums-Appellant and his two other relations prosecuted C
u/ss. 302, 304-B and 498-A-Prosecution case was that it was a case of dowry
death-Appellant stated that deceased was frustrated because of her not being
able to give birth to a child and she committed suicid&-No eye-witness of
incident-:Tn'al Court convicted the appellant and his father u/s. 302-High
Court upheld appellant's conviction but acquitted his father-Held there is

- nothing on record to show that the deceased was either treated with cruelty or D
harassed with the demand for dowry during the period between her having
been taken to parental home and her tragic end-In absence of any such
evidence it is not permissible to take recourse to legal presumption u/s. 113-B
of Evidence Act-However, prosecution has succeeded in proving the offence
u/s. 498-A-Conviction of appellant u/s. 302 set aside-He is convicted u/s. E
498-A and sentenced to rigorous imprisonment for three years, Evidence Ac~
1872-S. 113-B.

CRIMINAL APPELLATE JURISDiCTION: Criminal Appeal No.
559 of 1990 Etc.
F
From the Judgment and Order dated 16.2.90 of the Punjab &
Haryana High Court in Crl.A. No. 606-DB of 1987.
I Ujagar Singh, Davender Verma and Satish Vig for the Appellant in
Cr!. No. 559/98 and for Respondent Nos. 1-2 in Crl.A. No. 442/91.
G
M.C. Dhingra for the Appellant in Crl.A. No. 442/91.

Swaraj Kaushal, Sanjeev K. Pabbi for Prem Malhotra for the Respon-
\ dent State of Haryana.
I
The following Order of the Court was delivered : H
309

·~

<.
r
310 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Neelam Rani, wife of the appellant, died of burns on 17.6.1987. Her
husband, the present appellant, and his father and grand-mother were
arrayed as accused before the Sessions Court in connection with the death
of Neelam Rani charging them with offences under Section 302, 304B and
498A of the IPC. The Sessions Court acquitted the grand-mother, who was
B in her eighties, but convicted the appellant as well as his father of all
offences and sentenced them to imprisonment for life. The High Court of
Punjab and Haryana on the joint appeal by those convicted persons ac-
quitted appellant's father but confirmed the conviction of the appellant
under Section 302 IPC. The High Court pointed out that in view of the
said conviction it was unnecessary to maintain the conviction under the
C other two offences. Appellant filed this appeal by special leave in challenge
of the said conviction and sentence.

There seems to be no dispute on the fact that Neelam Rani died of
burns on 17.6.1987. The prosecution case in brief is that appellant was
persecuting her with the demand for more dowry and at last set her ablaze
D for not quenching his greed for dowry. On the other hand the stand of the
appellant, when questioned under Section 313 of the Code of Criminal
Procedure, was that by frustration, as she could not give birth to a child
and as she could not adjust in the village life with the appellant, she
committed suicide by burning herself.
E
The High Court counted some circumstances, in the absence of any
eye-witness, and reached the conclusion that the circumstances have con-
catenated themselves into a complete chain establishing that appellant had
killed her by setting her ablaze after dousing her with kerosene.

F On a scrutiny of the evidence we are of the view that the circumstan-
ces are far too meagre for reaching the conclusion that appellant had set
her on fire.

When Neelam Rani's father-Bhagwan Dass (PW-3) on hearing about
G the precarious condition of his daughter rushed to see her at the Civil
Hospital, Kaithal, all that he could see was her charred body. When he saw
the appellant standing nearby he asked him whether she was killed by him,
to which appellant answered with folded hands that it was a mistake on. his
part for that he should be forgiven.

H The above circumstance was taken seriously by the High Court as an
SHAMLALv. STATEOFHARYANA 311

incriminating conduct of the appellant. Along with it High Court counted A
the evidence of Zile Singh (PW-5). But that witness did not stick to the
version assigned to him by the prosecution, and hence he was treated as
hostile. He was to speak to the words he heard from the deceased as soon
as he reached the scene of occurrence. He was confronted with a letter
which he had sent to PW-6 in which he promised that he would never revert B
from what he has already committed to the police. But PW-5 in his
testimony in court said that he could not hear anything which deceased had
muttered as it was too inaudible. The testimony of PW-5 is therefore of no
use to the prosecution except to the extent he saw Neelam Rani in flames
and the inmates of the house remaining aghast.
c
- We are unable to agree with the finding reached by the High Court
that on the said circumstance Neelam Rani was murdered by the appellant.

But it is a certainty that Neelam Rani died under abnormal cir-
cumstances. If it is not a case of homicide, it could be a case of suicide
because her death by accident could reasonably be ruled out from all the D
broad circumstances in this case. We have now therefore to consider
whether appellant can be fastened with the penal liability under Section
304-B of the IPC.

The primary requirements for finding the appellant guilty of the E
offence under Section 304-B IPC are that death of the deceased was caused
by burns within seven years of her marriage and that "'soon before her

- death" she was subjected to cruelty or harassment by the appellant for or
in connection with any demand for dowry.

The first premise stands established in this case that the death of F

- Neelam Rani took place within seven years of her marriage though the
precise date of her marriage is not in evidence. (It is admitted by both sides
that her marriage was in the year 1983). The second premise that death
was caused by burns is a factum which has not been disputed even by the
appellant himself. In order to establish the third ingredient that "soon G
before her death she was subjected to cruelty or harassment for or in
connection with demand for dowry", a plea is made to resort to the legal
presumption envisaged in Section 113-B of the Evidence Act. It reads as
under :

"113-B. Presumption as to dowry death-When the question 1s H
312 SUPREME COURT REPORTS [1997) 2 S.C.R.
1.

A whether a person has committed the dowry death of a woman 'and
it is shown that soon before her death such woman had been
subjected 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."

B It is imperative, for .invoking the aforesaid legal presumption, to
prove that "soon before her death" she was subjected to such cruelty or
harassment. Here, what the prosecution achieved in proving at the most
was that there was persisting dispute between the two sides regarding the .
dowry paid or to be paid, both in kind and in cash, and on account of the
C failure to meet the demand for dowry, Neelam Rani was taken by her
parents to their house about one and a half years before her death. Further
evidence is that an attempt was made to patch up between the two sides
for which a panchayat was held in which it was resolved that she would
go back to the nuptial home pursuant to which she was taken by the
·-
husband to his house. This happened about ten to fifteen days prior tO the
D occurrence in this case. There is nothing on record to show that she was
either treated with cruelty or harassed with the demand for dowry during
the period between her having been taken to the parental home and her
tragic end.

E In the absence of any sue~ evidence it is not permissible to take
recourse to the legal presumption envisaged in Section 113-B of the
Evidence Act. That rule of evidence is prescribed in law to obviate the
prosecution of the difficulty to further prove that the offence was per-
petrated by the husband, as then it would be the burden of the accused to
rebut the presumption.
F
The corollary of the aforesaid finding is that appellant cannot be
convicted of the offence under section 304-B IPC. But this would not save
l\im from the offence under Section 498-A of the IPC for which there is
overwhelming evidence, particuldrly of PW-3, Bhagwan Dass, who heard
G from his daughter, which evidence is admissible under Section 32 of the
Evidence Act, besides his own direct dialogue with the appellant and his
father. As the trial court and the High Court found his evidence reliable,
we hold that prosecution has succeeded in proving the offence under
Section 498-A of IPC.

H We .therefore set aside the conviction and sentence passed on the
SHAMLALv. STATEOFHARYANA 313

appellant under Section 302 of IPC. But we find him guilty of the offence A
under Section 498-A of the IPC and convict him thereunder and sentence
him to the maximum period of imprisonment prescribed thereunder i.e.,
rigorous imprisonment for three years. It is needless to say that if the
appellant has already completed that period in jail in connection with this
case it is not necessary that he should surrender to custody. The appeal is B
accordingly disposed of. Consequently the other appeal is dismissed.

R.P. Appeal dismissed..

-