Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 37 of 2011, Judgment Date: Dec 16, 2014



                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION

                     CRIMINAL APPEAL NO (S). 37 OF 2011


Vijay Pal Singh and others                                ... Appellant (s)

                                   Versus

State of Uttarakhand                                     ... Respondent (s)


                               J U D G M E N T

KURIAN, J.:

The appellants faced trial  before  the  IIIrd  Additional  Sessions  Judge,
Nainital, Camp Haldwani in Sessions Trial  No.  281  of  1991  for  offences
punishable under Section 302 read with Section 34 of the Indian  Penal  Code
(45 of 1860) (hereinafter referred to as  'IPC'),  Section  304B  read  with
Section 34 of IPC, Section 498A of IPC and Section  201  of  IPC.   Sessions
court acquitted all of them; but in appeal by  the  State,  the  High  Court
convicted them under Section 304B read with Section 34 of IPC, Section  498A
of IPC and Section 201 of IPC and sentenced them for  seven  years  rigorous
imprisonment, two years rigorous imprisonment with fine  of  Rs.2,000/-  and
one year rigorous imprisonment, respectively, for each of them. Hence,  this
appeal.

It is the prosecution case that the marriage between the  second  appellant-
Narendra Singh-son of the first appellant-Vijay Pal Singh and  the  deceased
Saroj daughter of Ramesh Singh took place on 10.02.1991. PW-1  was  informed
on 25.05.1991, by the  first  appellant-Vijay  Pal  Singh  through  his  son
Rakesh Singh that Saroj was found missing  from  the  intervening  night  of
23/24th May, 1991. This information, PW-1  received  around  08.00  a.m.  on
25.05.1991 and, thereafter, he lodged a complaint  at  the  Police  Station,
Jaspur. On the same day, PW-2-Samar Pal Singh,  Village  Pradhan,  lodged  a
report at Police  Station,  Dillari  stating  therein  that  one  Sukhe  had
informed him that he had seen a dead body  of  an  unknown  woman  in  burnt
condition in the forest area on the side of the road. Thereafter,  the  case
was registered under Section 302 read with Section 201  of  IPC.  PW-8-Ashok
Kumar was  entrusted  with  the  investigation.  The  usual  formalities  on
inquest  etc.  were  undertaken  and  the  body  was  sent  for   postmortem
examination. PW-10-Dr. S. K. Arora conducted the  postmortem  on  26.05.1991
at 04.40 p.m.

Ramesh Singh-father of the deceased, on 26.05.1991, lodged another  petition
at Police Station, Dillari alleging that his daughter Saroj, aged about  20-
22 years, had  got  married  on  10.02.1991  and  after  the  marriage,  his
daughter had gone back to her in-laws' house at  Kasampur,  Police  Station,
Jaspur, District Nainital with her husband Narendra  Singh  two  times,  and
the third time on 19.05.1991, his                son-in-law  Narendra  Singh
had come at 12 noon and had taken Saroj along with him at 04.00 p.m. It  was
alleged that the appellants  were  continuously  making  dowry  demands  for
television, fridge and cooler and he had given them an assurance to  fulfill
the same, if given some time. But due to  his  weak  economic  position,  he
could not fulfill those  demands  immediately.  When  the  husband  came  to
Ramesh Singh's house to take back his  daughter  Saroj  to  her  matrimonial
home for the second time, he was accompanied by his father Vijay Pal  Singh,
his younger brother-Rakesh Singh and  his  brother-in-law-Gyan  Chandra  and
all of them had threatened him with dire consequences if the  dowry  demands
were not fulfilled. They also threatened to cause harm to her  in  case  the
dowry demand was  not  fulfilled.  The  said  incident  took  place  in  the
presence  of  the  family  members  of  PW-1-Ramesh  Singh,  people  in  the
neighbourhood and some villagers also. It was further alleged that his  son-
in-law Narendra Singh went along with his daughter  on  the  assurance  that
their dowry demands would be fulfilled. On 25.05.1991, at about 08.00  a.m.,
Rakesh Singh came to his house and told him  that  Saroj  had  been  missing
since the intervening night of 23/24th May, 1991.  Ramesh  Singh  thereafter
went to Kasampur and enquired about Saroj but could not get any  information
about her.

On 26.05.1991, he came to know from the police that  they  had  recovered  a
partly burnt dead body of  an  unknown  lady  from  the  forest  of  village
Sahaspuri on 25.05.1991  and  the  same  had  been  sent  to  Muradabad  for
postmortem. On receiving such information, Ramesh Singh  reached  the  place
of postmortem and, by seeing the dead  body  and  the  half  burnt  clothes,
earrings, ring (anguthi), ring (challa) and bangles on  the  dead  body,  he
identified  the  dead  body  as  that  of  his  daughter  Saroj.  After  the
postmortem, he took the dead body to Supardagi for cremation.  Ramesh  Singh
alleged that his son-in-law Narendra Singh, father of  his  son-in-law-Vijay
Pal Singh, brother of his son-in-law-Rakesh Singh and brother-in-law of  his
son-in-law, Gyan Chandra, had committed the murder  of  his  daughter  Saroj
and had also tried to destroy  the  dead  body  by  burning  the  same  near
village Sahaspuri. It was further alleged that Vijay Pal Singh  mislead  him
by sending the missing information.

In view of the above complaint, another FIR was registered on 26.05.1991  at
Police Station, Dillari and the investigation was  taken  over  by  Mahindra
Singh Tyagi, Deputy Superintendent of Police-PW-9. As per his  report  under
Section  173(2)  of  The  Code  of  Criminal  Procedure,  1973  (hereinafter
referred  to  as  "the  Cr.PC.),  the  appellants  are  guilty  of  offences
punishable under Sections 304B, 498A and 201 of IPC and Section  3  /  4  of
the Dowry Prohibition Act, 1961.

Charges of offences punishable under Section 304B read with  Section  34  of
IPC, Section 302 read with Section 34  of  IPC,  Section  498A  of  IPC  and
Section 201 of IPC were framed against  the  appellants.  The  charges  were
read over and explained to  the  appellants,  who  pleaded  not  guilty  and
claimed to be tried.

Prosecution, in  order  to  prove  its  case,  examined  PW-1-Ramesh  Singh,
complainant and father of deceased  Saroj,  PW-2-Samar  Pal  Singh,  Village
Pradhan, who lodged FIR report-Exhibit-Ka.4, PW-3-Sukhe, who first  saw  the
dead body lying on the road and  thereafter  informed  the  Village  Pradhan
about the same, PW-4-Vikram Singh, witness of the  recovery  memo,  PW-5-Dr.
Mushahid  Hussain  and                  PW-6-Ishwari  Prasad  Sharma,  local
residents  of  the  village,                      PW-7-Braham   Pal   Singh-
husband of the elder sister of  the  deceased,  PW-8-Ashok  Kumar  Rawat-who
initially conducted the investigation of  the  case,  PW-9-  Mahindra  Singh
Tyagi -Deputy Superintendent of Police, Investigating Officer of  the  case,
PW-10-Dr. S.K. Arora-who conducted  the  postmortem,  PW-11-Hemendra  Kumar-
photographer  and  PW-12-Samar  Pal   Singh-witness   of   inquest   report.
Thereafter,  statements  of  the  appellants/accused  were  recorded   under
Section 313 of Cr.PC. The oral and documentary evidence were put to each  of
them in question  form,  who  denied  the  allegations  made  against  them.
However, no oral or documentary evidence  was  produced  by  them  in  their
defence.

The Additional Sessions Judge acquitted all the accused of all  the  charges
mainly on two counts -  (i)  the  dead  body  was  not  in  an  identifiable
condition and (ii) there was  no  evidence  of  cruelty  or  harassment  for
dowry.

The State filed an appeal under Section 378 of Cr.PC before the  High  Court
which was disposed of by the impugned judgment dated  10.06.2010.  The  High
Court, after elaborately and minutely discussing the evidence, came  to  the
following conclusion at paragraph-33, which reads as follows:

"33.  From the above said  facts  and  circumstances,  the  prosecution  has
established its case beyond reasonable doubt against the  respondents  under
Sections 304-B r/w 34 of I.P.C. and 498-A of IPC. Besides above, it is  also
necessary to state here that P.W.-10 Dr. S.K. Arora who conducted the  post-
mortem of the dead body of the deceased found two  ante-mortem  injuries  on
the body of the deceased, one on head and other on neck. He also found  burn
injuries on the body of the deceased  which  was  caused  after  the  death.
Ultimately, he opined that the deceased had died due to asphyxia  caused  by
strangulation.  Thus,  from  the  above  facts,  it  transpires   that   the
respondents/accused first committed  murder  of  Saroj  at  their  house  at
Village Kasampur by throttling her neck and thereafter in order  to  destroy
the evidence, they burnt the dead body and planted it on road in the  forest
of village Sahaspuri at a distance of 35 Kms from Village Kasampur and  with
intention to mislead  the  complainant  Ramesh  Singh,  they  sent  a  false
missing information  of  the  deceased  through  respondent/accused  Rakesh.
Thus, in this way,  the  respondents/accused  have  also  committed  offence
punishable under Section 201 IPC."

On the basis of the above conclusion, the following finding was entered:
"34.  Therefore,  in  view  of  the  above-said  discussion,  I  am  of  the
considered view that the trial  court  was  not  correct  and  justified  in
acquitting the  respondents  for  the  offence  punishable  u/Ss  304-B  r/w
Section 34 IPC, 498-A and 201  of  IPC.  The  prosecution  has  successfully
proved its case against  the  respondents/accused  beyond  reasonable  doubt
under the aforesaid sections and they are accordingly convicted."

On the basis of above finding, the following sentence was passed:
"35.  Accordingly, the  appeal  preferred  by  the  State  is  allowed.  The
judgment and order dated  22.7.1995  passed  by  Third  Additional  Sessions
Judge, Nainital, Camp Haldwani in Sessions Trial No. 281 of 1991, State  Vs.
Vijay Pal and others, is hereby set  aside.  The  respondents-accused  Vijay
Pal Singh, Narendra Singh, Rakesh and  Gyan  Chandra  are  hereby  convicted
under Section 304-B IPC r/w Section 34 IPC and each of  them  are  sentenced
to seven years' R.I. Each of them is further convicted  u/s  498-A  and  are
sentenced to further two years' R.I. with fine of  Rs.2,000/-  each  and  in
default, the defaulter shall undergo  further  six  months'  R.I.  They  are
further convicted u/s 201 IPC and each of them is sentenced  to  one  year's
R.I. All the sentences except that of fine shall run concurrently.  Let  the
respondents-accused be taken into custody forthwith in order  to  serve  out
the sentence as awarded against each of them. The period  already  undergone
by the respondents-accused during the  period  of  investigation  and  trial
shall be adjusted."

Learned Counsel appearing for the appellants, Mr. P.K.  Dey  submitted  that
this Court may not disturb the acquittal granted to the  appellants  by  the
trial court merely because a different view is possible.  It  was  contended
that the prosecution having miserably failed to  establish  the  ingredients
of the offence under Section 304B of IPC, the impugned  judgment  is  liable
to be set aside. Mr. Dey, learned Counsel further contended that  the  trial
court having acquitted the  appellants,  the  High  Court  should  not  have
interfered with the findings entered by the trial court which alone had  the
opportunity to first appreciate the evidence while  recording  it.   It  was
further contended that in any case, being an incident of  1991,  this  Court
may not sustain the sentence awarded to the appellants.  At  any  rate,  Mr.
Dey submitted that there is absolutely no evidence  so  as  to  connect  the
third and the fourth appellants who are the younger brother  of  the  second
appellant, husband of the deceased and the brother-in-law,  husband  of  the
sister of Narendra Singh. And the last contention of Mr.  Dey  is  that  the
matter should be remanded  to  the  High  Court  since  the  court  has  not
followed the mandatory procedure under Section 235 of Cr.PC, in having  been
denied an opportunity to the appellants to make submissions on sentence.

Learned      Counsel      appearing      for      the      respondent-State,
Mr. Tanmaya Agarwal, however, contends that the findings of the trial  court
being absolutely perverse, High Court is fully justified  in  reversing  the
finding and reaching a correct conclusion. According to the learned  Counsel
for the State, all the ingredients of Section 304B have  been  made  out  in
the present case and the punishments  awarded  to  all  the  appellants  are
liable to the sustained.

The postmortem report shows the following injuries on the body:
"i)   Lacerated wound 10 cm x 4 cm x skull deep on the occipital  region  of
head underneath occipital, left parietal, temporal bone fractured.
ii)   Contusion semi-circular 20 cm x 3 cm on the front of  neck  underneath
blood vessel lacerated and clotted blood present and cornua  of  hyoid  bone
both side fractured.

      One post-mortem injury  was  also  found  on  the  dead  body  of  the
deceased, which reads as under:-
i)    P.M burn whole of body including  both  extremities,  abdomen,  chest,
face and back."

The cause of death, according to the postmortem report  is  asphyxia  caused
by strangulation.

It is rather strange that  the  High  Court  having  entered  a  finding  as
extracted by us at paragraph-8 that it is a case of murder committed by  the
appellants herein, declined to award appropriate  punishment  under  Section
302 of IPC. It is a case where the appellants had faced trial under  Section
302  of  IPC  and,  therefore,  the  High  Court  could  have,  awarded   an
appropriate punishment. The probable reasons why the High Court declined  to
do so, we shall discuss later.

Since, the victim in the case is a married woman and the death being  within
seven years of  marriage,  apparently,  the  court  has  gone  only  on  one
tangent, to treat the same as a dowry death.  No  doubt,  the  death  is  in
unnatural circumstances but if there are definite indications of  the  death
being homicide, the first approach of the prosecution and the  court  should
be to find out as to who caused that murder. Section 304B of IPC  is  not  a
substitute for Section 302 of IPC.  The  genesis  of  Section  304B  of  IPC
introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the  91st
Report of the Law Commission of India. It is significant to  note  that  the
subject was taken up by the Law Commission suo motu.  Paragraph-1.3  of  the
Report reads thus:

"1.3. If, in a particular incident of dowry death, the facts are such as  to
satisfy the legal ingredients of an offence already known to  the  law,  and
if those facts can be proved without much difficulty, the existing  criminal
law can be resorted to for bringing  the  offender  to  book.  In  practice,
however, two main impediments arise-

(i)   either the facts do not fully fit into the pigeon-hole  of  any  known
offence; or

(ii)  the peculiarities of the situation are such  that  proof  of  directly
incriminating facts is thereby rendered difficult.

      The first impediment mentioned  above  is  aptly  illustrated  by  the
situation where a woman takes her life with her own  hands,  though  she  is
driven to it  by  ill-treatment.   This  situation  may  not  fit  into  any
existing pigeon-hole in the list  of  offences  recognized  by  the  general
criminal law of the  country,  except  where  there  is  definite  proof  of
instigation, encouragement or other conduct that amounts  to  "abetment"  of
suicide. Though, according to newspaper reports, there have  been  judgments
of lower courts which seem to construe "abetment" in  this  context  widely,
the position is not beyond doubt.

      The second situation  mentioned  above  finds  illustration  in  those
incidents in which, even though the circumstances raise a  strong  suspicion
that the death was not accidental, yet, proof beyond  reasonable  doubt  may
not be forthcoming that the case was really one of homicide. Thus, there  is
need to address oneself to the substantive criminal law as well  as  to  the
law of evidence."


In the Statement of Objects and Reasons for the  Act  43  of  1986,  in  the
Bill, it is stated as follows:

"The  Dowry  Prohibition  Act,  1961  was  recently  amended  by  the  Dowry
Prohibition (Amendment) Act, 1984 to give effect to certain  recommendations
of the Joint Committee of the Houses of Parliament to examine  the  question
of the  working  of  the  Dowry  Prohibition  Act,  1961  and  to  make  the
provisions of the Act more  stringent  and  effective.  Although  the  Dowry
Prohibition (Amendment)  Act,  1984  was  an  improvement  on  the  existing
legislation, opinions have been expressed by  representatives  from  women's
voluntary organizations and others to the effect that  the  amendments  made
are still inadequate and the Act needs to be further amended.

2. It is, therefore, proposed to further amend the  Dowry  Prohibition  Act,
1961 to make provisions therein further stringent and effective. ..."


However, it is generally seen that in  cases  where  a  married  woman  dies
within seven years of marriage, otherwise than under  normal  circumstances,
no inquiry is usually conducted to see whether there is evidence, direct  or
circumstantial, as to whether the offence falls under Section  302  of  IPC.
Sometimes, Section 302 of IPC is put as an alternate charge. In cases  where
there is evidence, direct or circumstantial, to show that the offence  falls
under Section 302 of IPC, the trial court  should  frame  the  charge  under
Section 302 of IPC even if the police has not expressed any opinion in  that
regard in the report under Section 173(2) of the Cr.PC. Section 304B of  IPC
can be put as an alternate charge if  the  trial  court  so  feels.  In  the
course of trial, if the court finds that there is  no  evidence,  direct  or
circumstantial, and proof  beyond  reasonable  doubt  is  not  available  to
establish that the same is  not  homicide,  in  such  a  situation,  if  the
ingredients under Section 304B of IPC are available, the trial court  should
proceed under the said provision. In Muthu Kutty and  another  v.  State  by
Inspector of Police, T.N.[1], this Court addressed the  issue  and  held  as
follows:

"20. A reading  of  Section  304-B  IPC  and  Section  113-B,  Evidence  Act
together makes it clear that law authorises a presumption that  the  husband
or [pic]any other relative of the husband has caused the death  of  a  woman
if she happens to die  in  circumstances  not  normal  and  that  there  was
evidence to show that she was treated with cruelty or  harassed  before  her
death in connection with any demand for dowry. It, therefore,  follows  that
the husband or the relative, as the case may be, need not be the  actual  or
direct participant in the commission of the  offence  of  death.  For  those
that are direct participants in the  commission  of  the  offence  of  death
there are already provisions incorporated in Sections 300, 302 and 304.  The
provisions contained in Section 304-B IPC and Section 113-B of the  Evidence
Act were incorporated on the anvil  of  the  Dowry  Prohibition  (Amendment)
Act, 1984, the main object of which is to curb the  evil  of  dowry  in  the
society and to make it severely punitive in  nature  and  not  to  extricate
husbands or their relatives from the clutches of Section  302  IPC  if  they
directly cause death. This conceptual difference was not  kept  in  view  by
the courts below. But that cannot bring any  relief  if  the  conviction  is
altered to Section 304 Part II. No  prejudice  is  caused  to  the  accused-
appellants as they were originally  charged  for  offence  punishable  under
Section 302 IPC along with Section 304-B IPC."

In a recent decision, this Court in Jasvinder  Saini  and  others  v.  State
(Government of NCT of Delhi)[2], observed thus:

"15. It is common ground that a charge under Section  304-B  IPC  is  not  a
substitute for a charge of murder punishable under Section 302.  As  in  the
case of murder in every case under Section  304-B  also  there  is  a  death
involved. The question whether it is murder  punishable  under  Section  302
IPC or a dowry death punishable under Section 304-B  IPC  depends  upon  the
fact situation and the evidence in the case. If there  is  evidence  whether
direct or circumstantial to prima facie support a charge under  Section  302
IPC the trial court can and  indeed  ought  to  frame  a  charge  of  murder
punishable under Section 302 IPC, which would then be the  main  charge  and
not an alternative charge as is erroneously assumed  in  some  quarters.  If
the main charge of murder is not proved against the accused  at  the  trial,
the court can look into the evidence to determine  whether  the  alternative
charge of dowry death punishable under Section  304-B  is  established.  The
ingredients constituting the two offences are different,  thereby  demanding
appreciation of evidence from the perspective relevant to such  ingredients.
The trial court in that view of the matter acted mechanically for it  framed
an additional  charge  under  Section  302  IPC  without  adverting  to  the
evidence adduced in the case and  simply  on  the  basis  of  the  direction
issued in Rajbir case. The High Court no doubt made a  half-hearted  attempt
to justify the framing of  the  charge  independent  of  the  directions  in
Rajbir case, but it would have been more appropriate  to  remit  the  matter
back to the trial court for fresh orders rather than lending support  to  it
in the manner done by the High Court."

Though in the instant case the accused were charged by  the  Sessions  Court
under Section 302 of IPC, it is seen that the trial court has not  made  any
serious attempt to make an inquiry in that  regard.  If  there  is  evidence
available on homicide in a case of dowry  death,  it  is  the  duty  of  the
investigating officer to investigate the case under Section 302 of  IPC  and
the prosecution to proceed in that regard and  the  court  to  approach  the
case in that perspective. Merely because  the  victim  is  a  married  woman
suffering an unnatural death within seven years of  marriage  and  there  is
evidence that she was subjected to  cruelty  or  harassment  on  account  of
demand for dowry, the prosecution and the court cannot  close  its  eyes  on
the culpable homicide and refrain from punishing its  author,  if  there  is
evidence in that regard, direct or circumstantial.

In the instant case, the prosecution has not made  any  attempt  to  explain
the ante-mortem injuries which conclusively point to the cause of  death  as
asphyxia caused by strangulation. Yet, no serious attempt, it is  disturbing
to note, was done to connect the murder to its author(s).

No doubt, nothing prevents this Court from putting the appellants on  notice
as to why the punishment should not be appropriately  enhanced  but  why  we
reluctantly decline to do so, we shall explain in  the  later  part  of  the
judgment.

In two of the early decisions of  this  Court,  after  the  introduction  of
Section 304B of IPC, the ingredients of the offence  and  the  interplay  of
Section 304B of IPC with Sections 498A, 302,  306  of  IPC  have  also  been
discussed. In State of Punjab v. Iqbal Singh and  others[3],  the  Court  in
paragraph-8 stated that:

"8. ... The legislative intent is clear to curb the menace of dowry  deaths,
etc., with a firm hand. We must keep in mind  this  legislative  intent.  It
must be remembered that since crimes are generally committed in the  privacy
of residential homes and in secrecy, independent and direct evidence is  not
easy to get. That is why the legislature has by introducing  Sections  113-A
and 113-B in the Evidence Act tried to strengthen the prosecution  hands  by
permitting a presumption to be raised  if  certain  foundational  facts  are
established and the unfortunate event has taken place within seven years  of
marriage. This period of seven years is considered to be the  turbulent  one
after which the legislature assumes that the couple would have settled  down
in life. If a married women is subjected to cruelty  or  harassment  by  her
husband or his family members Section 498-A,  IPC  would  be  attracted.  If
such cruelty or harassment was inflicted by  the  husband  or  his  relative
for, or in connection with,  any  demand  for  dowry  immediately  preceding
death by burns and bodily injury or in abnormal circumstances  within  seven
years of marriage, such husband or relative is deemed  to  have  caused  her
death and is liable to be  punished  under  Section  304-B,  IPC.  When  the
question at issue is whether a person is guilty of dowry death  of  a  woman
and the evidence  discloses  that  immediately  before  her  death  she  was
subjected by such person to cruelty and/or harassment for, or in  connection
with, any demand for dowry, Section 113-B, Evidence Act  provides  that  the
court shall presume that such person had caused the dowry death.  Of  course
if there is proof of the person having intentionally caused her  death  that
would attract Section 302, IPC. Then we have a situation where  the  husband
or his relative by his wilful conduct creates a  situation  which  he  knows
will drive the woman to commit suicide and she actually does  so,  the  case
would squarely fall within the ambit of Section 306, IPC.  In  such  a  case
the conduct of the person would tantamount to inciting or [pic]provoking  or
virtually pushing the woman into a desperate situation of  no  return  which
would compel her to put an end to her miseries by committing suicide. ..."

In Smt. Shanti and another v. State of Haryana[4], which  is  seen  referred
to in many of the subsequent decisions, this Court stated  the  law  on  the
point as follows:
"4.   ... A careful analysis of Section 304-B shows that  this  section  has
the following essentials:

(1)   The death of a woman should be caused by burns  or  bodily  injury  or
otherwise than under normal circumstances;
[pic](2)    Such death should  have  occurred  within  seven  years  of  her
marriage;
(3)   She must have been subjected to cruelty or harassment by  her  husband
or any relative of her husband;
(4)   Such cruelty or harassment should be for or in connection with  demand
for dowry.

Section 113-B of the Evidence Act lays down that if soon  before  the  death
such woman has been subjected to cruelty or harassment for or in  connection
with any demand for dowry, then the court shall  presume  that  such  person
has committed the dowry death. The meaning of "cruelty" for the purposes  of
these sections has to be gathered from the language as found in Section 498-
A and as per that section "cruelty" means "any wilful conduct  which  is  of
such a nature as is likely to drive the woman to commit suicide or to  cause
grave injury or danger to life etc. or  harassment  to  coerce  her  or  any
other person related to her to meet any unlawful demand for any property  or
valuable security or is on account of failure by her or any  person  related
to her to meet such demand". As per the definition of "dowry"  any  property
or valuable security given or agreed to be given either at or before or  any
time after the marriage, comes within the meaning of "dowry". ..."

Unto the latest decision available on  this  point,  in  Baljinder  Kaur  v.
State of Punjab[5], except for the  required  thrust  with  respect  to  the
factual situation available in each case, the law has been consistent as  to
the requirements for constituting the offence under Section 304B of IPC.
Back to the facts of the instant case, the main evidence in this case is  of
PW-1-Ramesh Singh, father of the  victim,  PWs-  5  and  6  -  who  are  the
residents of the village and PW-7-  husband  of  the  elder  sister  of  the
deceased, apart from the medical evidence.

According to PW-1, he had brought his daughter from her in-laws' house.  She
had told him about the demand from her in-laws' for the dowry. The  deceased
had gone to the in-laws' twice only and the third time when  the  son-in-law
had come to take his daughter, he was accompanied by  his  father-Vijay  Pal
Singh, younger brother-Rakesh  Singh  and  brother-in-law-Gyan  Chandra  and
they had threatened him with dire consequences  in  case  their  demand  for
television, fridge and cooler was not met. PWs-5 and 6 are witnesses of  the
same.                                     PW-5-Dr.  Mushahid  Hussain  is  a
registered medical practitioner serving in the village  for  more  than  two
decades. According to him, the relatives of  the  husband  of  the  deceased
Saroj and her father-in-law and other relations used to demand  more  dowry.
He had once used his good office to sort out the dispute. It has  also  come
out from his evidence that once a Panchayat was  called  on  the  issue  and
even in the Panchayat, in the presence of PW-5 himself, the husband and  his
father and others made demand for dowry. PW-6 is the  Gram  Pradhan  of  the
Gram Sabha, Alampur. He has also given evidence to  the  effect  that  there
were demands for more dowry from the in-laws'  of  deceased  Saroj.  He  has
also given evidence regarding the Panchayat held  to  sort  out  the  matter
and, in his presence also, the in-laws' of deceased  Saroj  were  requesting
for more dowry. The other evidence is of PW-7- husband of the  elder  sister
of the deceased. Only PW-1 and PW-7, the father and  husband  of  the  elder
sister of the deceased, respectively, have  given  evidence  to  the  effect
that all the appellants had made the demand for more  dowry  and  had  posed
threat of consequences, if the demands were not met.

The death is within four months of the marriage. There  is  ample  evidence,
which we have discussed above, to show  that  there  had  been  demands  for
dowry. Then, the only ingredient to be established is  as  to  whether  soon
prior to the death of deceased Saroj, whether  she  had  been  subjected  to
cruelty or harassment on account of or in connection with demand for dowry.

Mr. Dey contends that even assuming that there is  evidence  on  demand  for
dowry, there is absolutely no evidence to show that any demand was  made  to
the deceased Saroj. This contention  is  difficult  to  digest.  Demand  for
dowry so as to come under the purview of Section 304B or Section  498A  need
not be to the married woman. The demand  can  as  well  be  to  the  father,
mother, brother, etc., of the married woman. Any demand to them is  as  good
as a demand to the married woman since she is the one to suffer in case  the
demands are not met, as has happened in the instant case.

Yet another serious contention raised by Mr. Dey is that in any case,  there
is no evidence of cruelty  or  harassment  meted  out  to  the  deceased  on
account or in relation to the demand for dowry. Cruelty or  harassment  need
not always be demonstrated in the form of physical violence. The  fact  that
a married woman had to go out of her in-laws' house and  that  the  in-laws'
had made demand  for  dowry  as  a                        pre-condition  for
taking her back and that even a Panchayat was held at  the  local  level  to
sort out the issue, are sufficient  indicators  of  cruelty  or  harassment,
mental, if not, physical. Thus, all the ingredients of Section 304B  of  IPC
have been established in the instant case.

Incidentally,  we  shall  also  refer  to  one  contention   regarding   the
identification of the body. According to  the  learned  Counsel,  which  has
been the  version  of  the  trial  court  as  well,  the  deceased  was  not
identified as Saroj, the wife of the  second  appellant-Narendra  Singh.  It
appears, there has been slight confusion in the  mind  of  the  trial  court
with regard to recognition and identification. PW-2 and PW-3 first  saw  the
body and reported that the dead body was  of  an  unknown  person  and,  the
people who went to see the body, could not recognize as to  who  the  person
was. It has to be seen that PWs-2 and 3 were not from  the  village  of  the
deceased. Therefore, one  cannot  normally  expect  them  to  recognize  the
deceased person. That does not mean that the face of the dead  body  was  in
such a shape that it had lost its shape. A bare look at  Exhibits-4  and  5-
photographs would show that to the people who knew the deceased, they  could
easily recognize who the person was. Had the face been completely  burnt  or
otherwise lost its whole shape, it would not have been possible for  anybody
to identify it, let alone recognize the person. In the instant  case,  PWs-2
and 3 identified the face as that of a woman and PW-1-father has  recognized
her to be his daughter. At the time of cremation, it has  come  in  evidence
that others also recognized the deceased as  Saroj,  daughter  of  PW-1  and
wife of second appeallant-Narendra Singh.

Learned Counsel appearing for the  appellants  strongly  canvassed  for  the
position that in  an  appeal  against  acquittal,  there  are  some  inbuilt
restrictions before the appellate  court  and  the  mere  possibility  of  a
different view is not enough to interfere with the  acquittal.  We  have  no
quarrel with the well-settled proposition. The author of  this  judgment  is
the author of the judgment in Basappa v. State  of  Karnataka[6]  wherein  a
detailed survey has been conducted with regard to the scope of  interference
of the appellate court in an  appeal  against  the  judgment  of  acquittal.
After  referring  to  following  decisions   in   K.   Prakashan   v.   P.K.
Surenderan[7], T. Subramanian v. State  of  Tamil  Nadu[8],  Bhim  Singh  v.
State of Haryana[9], Kallu  alias  Masih  and  others  v.  State  of  Madhya
Pradesh[10], Ramesh Babulal Doshi v. State of Gujarat[11], Ganpat  v.  State
of  Haryana  and  others[12],   State  of  Punjab  v.   Karnail   Singh[13],
Chandrappa and others v. State of Karnataka[14], which have dealt  with  the
issue, this Court held that unless the judgment of acquittal is based on  no
material  or  is  perverse  or  the  view  taken  by  the  court  is  wholly
unreasonable or is not a plausible view or  there  is  non-consideration  of
any evidence or there is palpable  misreading  of  evidence,  the  appellate
court will not be justified in interfering  with  the  order  of  acquittal.
While endorsing and reaffirming those principles, we are of  the  considered
view that on the facts of the  present  case,  there  has  been  a  palpable
misreading of evidence by the trial court.  As  we  have  already  discussed
herein above, the  conclusions  drawn  by  the  trial  court  is  apparently
against the weight of evidence and thus perverse,  and  it  is  so  perverse
that no reasonable man could reach conclusions.

Now, the question as to why the High  Court,  having  entered  a  conclusion
that it is a case of murder at the hands of the  appellants,  yet  chose  to
convict them only under Section 304B of IPC. As we have  already  indicated,
it could have been a case for the High Court or for that matter  this  Court
for issuing notice for enhancement  of  punishment  to  those  against  whom
there is evidence to connect them with the murder.  The  incident  being  of
1991, the prosecution having not chosen to link all the circumstances  in  a
chain with no  missing  links  to  reach  the  irresistible  and  conclusive
finding on involvement of the accused, the High Court would have thought  it
more prudent to convict the accused only  under  Section  304B  of  IPC.  No
doubt, in such a case, the High Court should not have  entered  a  categoric
finding  on  murder  since  once  the  court  enters  such  a  finding,  the
punishment can only be under Section  302  of  IPC.  Having  regard  to  the
circumstances which we have referred to above,  we  are  of  the  view  that
though this case could have been dealt with under Section  302  of  IPC,  at
this distance of time and in view of the lack of evidence on  the  chain  of
circumstances, it will not  be  proper  for  this  Court  to  proceed  under
Section 302 of  IPC  for  enhancement  of  punishment.  There  are  no  such
problems as far  as  the  presumption  under  Section  113B  of  the  Indian
Evidence Act, 1872 is concerned. Once the ingredients  of  Section  304B  of
IPC are established, the presumption is that the death has  been  caused  by
the husband or his relatives, who caused the  cruelty  or  harassment.  That
presumption can safely be drawn in the instant  case,  as  we  have  already
discussed above, as all the ingredients under Section 304B of IPC have  been
proved beyond doubt in the present  case  particularly  since  there  is  no
direct evidence on the part of the appellants to rebut the same.

Yet with all that,  we  have  to  address  a  further  question  as  to  the
involvement of the younger brother of husband-Rakesh Singh  and  brother-in-
law  of  husband-Gyan  Chandra.  Though,  under  Section  304B  of  IPC,   a
presumption has to be drawn against those relatives who  have  harassed  the
deceased in connection with the demand for dowry, there  must  be  evidence,
which is not rebutted to connect the  husband  and  each  relative  in  that
regard. Rebuttal can be made even without direct evidence  (See  Kundan  Lal
Rallaram v. The  Custodian,  Evacuee  Property  Bombay[15]  followed  in  M.
Narsinga Rao v. State of Andhra Pradesh[16]).

In Alamgir Sani v. State of Assam[17], one of the issues that  came  up  for
consideration before this Court on acquittal under Section  302  of  IPC  is
whether on account of acquittal under Section 302 of IPC, the accused  could
claim acquittal under Section 304B of IPC. It was clarified  by  this  Court
that the acquittal under Section 302 of  IPC  will  not  lead  to  automatic
acquittal under Section 304B of IPC. Even if an accused is  acquitted  under
Section 302 of IPC, if there is evidence available  so  as  to  satisfy  the
ingredients of Section 304B of IPC,  the  accused  can  still  be  convicted
under Section 304B of IPC, in case there is no rebuttal  of  presumption  on
the death as caused by the accused. To quote:

"15. We also see no substance in the  submission  that  merely  because  the
appellant had been acquitted under Section 302  IPC  the  presumption  under
Section 113-B of the Evidence Act stands automatically rebutted.  The  death
having taken place within seven  years  of  the  marriage  and  there  being
sufficient evidence of demand of dowry, the presumption under Section  113-B
of the Evidence Act gets invoked. There is no evidence in rebuttal."

Though PW-1-father of the deceased and PW-7- husband of the elder sister  of
the deceased have stated that Rakesh Singh and Gyan Chandra were  also  with
Vijay Pal Singh  and  Narendra  Singh-husband  of  the  deceased  when  they
visited his house and demanded dowry and posed a threat, but it has come  in
the evidence of PW-5 and  PW-6  that  in  the  family  of  in-laws'  of  the
deceased Saroj, they did not recognize any person other than the  father-in-
law-Vijay Pal Singh and husband-Narendra Singh. Not only that  it  has  come
out in evidence of PW-1 himself that younger brother-Rakesh Singh  had  been
studying elsewhere and that the  brother-in-law  Gyan  Chandra  was  from  a
different village.   Since  the  independent  witnesses  PWs-5  and  6  have
recognized only the father-in-law and husband of the  deceased,  we  are  of
the view that it will not be safe to conclude  the  offence  under  Sections
304B of IPC, 498A of IPC or 201 of IPC as proved against  Rakesh  Singh  and
Gyan Chandra. Therefore,  the  conviction  and  sentence  as  against  third
accused/appellant-Rakesh Singh  and  fourth  accused/appellant-Gyan  Chandra
are set aside.

Now, the last question as to whether the case should  be  remitted  back  to
the High Court for the purpose of Section 235 of Cr.PC, we are of  the  view
that in the present case, it is  not  necessary.  The  conviction  is  under
Section 304B IPC. The  mandatory  minimum  punishment  is  seven  years.  Of
course, there is no such minimum punishment under Section  498A  of  IPC  or
Section 201 of IPC. Since the sentence in respect of offence  under  Section
498A of IPC for two years rigorous imprisonment and one year  under  Section
201 of IPC are to run concurrently, no prejudice  whatsoever  is  caused  to
the two appellants. Therefore, this is not a  fit  case  for  following  the
procedure under Section 235 of Cr.PC by this Court or  for  remand  in  that
regard to the High Court.

The   conviction   and   sentence   against    the    third    and    fourth
accused/appellants, Rakesh Singh and Gyan  Chandra,  respectively,  are  set
aside. The conviction and sentence as against first and  second  appellants,
Vijay Pal Singh and Narendra Singh, respectively, under Section 304B of  IPC
read with Section 34 of IPC, Section 498A of IPC and Section 201of  IPC  are
upheld.  Their  bail   bonds   are   cancelled.   They   shall   immediately
surrender/they shall be taken to custody, to serve the  remaining  sentence.
The appeal is thus partly allowed as above.


                                ..........................................J.
                                                       (KURIAN JOSEPH)


                                ..........................................J.
                                                 (ABHAY MANOHAR SAPRE)

New Delhi;
December 16, 2014.

-----------------------
[1]

       (2005) 9 SCC 113
[2]    (2013) 7 SCC 256
[3]    (1991) 3 SCC 1
[4]    (1991) 1 SCC 371
[5]    (2014) 13 SCALE 96
[6]    (2014) 5 SCC 154
[7]    (2008) 1 SCC 258
[8]    (2006) 1 SCC 401
[9]    (2002) 10 SCC 461
[10]   (2006) 10 SCC 313
[11]   (1996) 9 SCC 225
[12]   (2010) 12 SCC 59
[13]   (2003) 11 SCC 271
[14]   (2007) 4 SCC 415
[15]   AIR 1961 SC 1316
[16]   (2001) 1 SCC 691
[17]   (2002) 10 SCC 277

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