It is quite remarkable to note that in a latest and significant decision titled Girish Singh Vs The State Of Uttarakhand in Criminal Appeal No. 1475 of 2009 with Criminal Appeal No. 1476 of 2009 delivered on July 23, 2019, the Supreme Court has observed that the conviction under Section 304B of the Indian Penal Code can be made only if the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. This noteworthy judgment of the Supreme Court which was authored by Justice KM Joseph for himself and also Justice SK Kaul makes it amply clear that it is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with demand for dowry. While setting aside the concurrent conviction, the Bench also very rightly observed that the appellate court was duty bound in the case of an appeal by the accused to reappraise the evidence. There can be no denying it!

To start with, the ball is set rolling first and foremost in para 1 wherein it is pointed out that, “The appellant in Criminal Appeal No. 1475 of 2009 is the first accused and the appellant in Criminal Appeal No. 1476 of 2009 is the second accused. They were charged under Sections 306 read with Section 34 and Section 304B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for short). The first accused is the son of the second accused.”

To recapitulate, it is then laid bare in para 2 that, “It is the case of the prosecution in brief that the first accused used to treat his wife with cruelty on account of dowry demand. The same allegation was made against his father-second accused. It is also alleged that his father wanted to fulfil his lust with his daughter-in-law. She did not agree. The accused tortured her and gave her beating. The daughter-in-law committed suicide by burning herself on 05.06.1991. After complying with the formalities, the charge-sheet was filed against the accused. Prosecution examined nine witnesses and produced 17 documents. The Trial Court came to the conclusion that the prosecution failed to prove the case against both the accused. They were accordingly acquitted. Reliance is in particular placed on certain letters.”

As it turned out, para 3 then elucidates that, “The appeal carried against their acquittal by the State was allowed by the High Court by the impugned order. The appellants were convicted under Section 304B read with Section 34 of the IPC. It was, however, found that offence under Section 306 read with Section 34 of the IPC was not made out against the appellants. The appellants were sentenced to seven years rigorous imprisonment.”

Be it noted, para 24 rightly observes that, “It is relevant to remember that the father of the deceased has admitted that the letters were written dated 28.02.1991 and 20.03.1991 in reply to letters written by the deceased. The letters do not disclose about any harassment or cruelty or the dowry demand. In his deposition, PW4-father of the deceased would say that he is unable to say why any fact of dowry harassment has not been written in these letters. The letters written by the deceased have been misplaced according to PW4-father of the deceased.”

As things stand, para 25 then illustrates that, “The significance of the letters, admittedly written by PW4 to her deceased daughter and the absence of any complaint about dowry harassment, lies in the following categoric statement made by PW4-father of deceased, as follows:

‘Accused behaved normally with the deceased for five months and thereafter, they started misbehaving. My daughter could read and write a little and she had written two letters to me in this regard’.”

(Emphasis supplied)

It cannot be lost on us that it is then observed in para 26 that, “The aforesaid letters written by the deceased are not made available on the ground that they had been misplaced. Certainly, if these letters, which are admittedly written by PW4-father of the deceased are in response to the letters written by his deceased daughter, the contents of letters written by the father do not bear out the case of conduct by the accused as is sought to be made out.”

To put things in perspective, it is then noted in para 27 that, “We have referred to the entire evidence. The Trial Court acquitted the accused. The jurisdiction of the Appellate Court, when it deals with such an order, is no longer res integra and is subject matter of catena of decisions of this Court.”

Having said this, let us now refer to the catena of decisions of Apex Court pertaining to this subject. First of all, it is pointed out in para 28 that, “In Upendra Pradhan v. State of Orissa (2015) 11 SCC 124, this Court took the view that if there is benefit of doubt, it must go to the accused, and in case of two views, the view that favours the accused, should be taken, which was more so where the Trial Court’s decision was not manifestly illegal, perverse and did not cause miscarriage of justice.” Para 29 then reveals that, “In Dilawar Singh and others v. State of Haryana (2015) 1 SCC 737, this Court took the view that court will not interfere with the verdict of acquittal merely because on evaluation of evidence, a different plausible view may arise. Very substantial and compelling reasons must exist with the Appellate Court to interfere with an acquittal.”

Furthermore, para 30 then discloses that, “In Gamini Bala Koteswara Rao and others v. State of Andhra Pradesh Through Secretary AIR 2010 SC 589, this Court accepted the contention of the appellant that interference in an appeal against acquittal should be rare and in exceptional circumstance. It was further held that it is open to the High Court to reappraise the evidence and conclusions arrived at by the Trial Court. However, it is limited to those cases where the judgment of Trial Court was perverse. This Court went on to declare that the word “perverse”, as understood to mean, “against the weight of evidence”. If there are two views and the Trial Court has taken one of the views merely because another view is plausible, the Appellate Court will not be justified in interfering with the verdict of acquittal (See K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258).”

What’s more, para 33 then illustrates that, “Thus, it can be seen that the offence created by Section 304B requires the following elements to be present in order that it may apply:

I. Within 7 years of the marriage, there must happen the death of a woman (the wife).

II. The death must be caused by any burns or bodily injury.

OR

The death must occur otherwise than under normal circumstances.

III. It must be established that soon before her death, she was subjected to cruelty or harassment.

IV. The cruelty or harassment may be by her husband or any relative of her husband.

V. The cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.”

To put this in perspective, it is then enunciated in para 34 that, “Section 304B treats this as a dowry death. Therefore, in such circumstances, it further provides that husband or relative shall be deemed to have caused her death. Section 113B of The Indian Evidence Act, 1872 provides for presumption as to dowry death. It provides that when the question is whether the dowry death, namely, the death contemplated under Section 304B of the IPC, has been committed by a person, if it is shown that soon before her death, the woman was 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. It is no doubt a rebuttable presumption and it is open to the husband and his relatives to show the absence of the elements of Section 304B.”

To be sure, it is then observed in para 35 that, “The foremost aspect to be established by the prosecution is that there was reliable evidence to show that the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. Before the presumption is raised, it must be established that the woman was subjected by such person to cruelty or harassment and it is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with demand for dowry.”

While elaborating in detail the factual position, it is then pointed out in para 36 that, “Admittedly, the deceased was influenced by spirit (devta). Religious ceremony/prayers were held. The deceased became normal after doing it. Still further, there is evidence that whatever madness the deceased used to do, it was taken care of by her in-law’s house. The above facts emerge from the testimony of PW1-sister of the deceased herself. It is relevant to remember that it is a case of suicide. In the statement under Section 313 of the Code, the 1st accused in fact states as follows:

“The deceased was under influence of evil spirit. We conducted prayers two times but she could not be cured. Her mind was restless and she committed suicide and her family falsely implicated us”.”

Of course, while dwelling further more in detail the factual position, para 37 then goes on to state that, “PW4-father of the deceased completely contradicts himself, when in cross-examination, he states that 5-6 days after marriage, the first accused and the deceased came, he was on duty. There is evidence when PW4 was working in Bombay (See the evidence of PW2/wife of PW4, who has deposed that her husband was working in Bombay). Earlier in cross-examination, PW4 has deposed that when he was going back after 5-6 days of marriage, the first accused came to take the deceased and then the first accused has said that television and VCR has not been given. PW4 says in chief examination that he had told the first accused that he has given according to his ability and if everything goes fine, it will also be done. PW4 further stated that on this, the first accused said that deceased was having flat nose. Thereafter, he states that he went back to Bombay on his duty.”

More significantly, the Apex Court then minces no words to observe in para 38 that, “We noticed that this aspect has not been considered at all by the High Court. This contradiction in evidence goes to the root of the matter. This proves that the prosecution case sought to be proved through PW4, is unacceptable.”

While going into the nitty gritty, para 39 then observes that, “PW2 would say that the deceased was an illiterate. She did not know how to read and write. On the other hand, PW4 would depose that the deceased could read and write letters. In fact, PW2 herself stated that her husband-PW4 reached home after hearing about the death of the deceased and told PW2 that he has received two letters of the deceased regarding harassment by the accused about dowry and one letter of Jodh Singh-the second accused. It is here that two letters which have been written admittedly by PW4-father of the deceased assumes critical significance.”

To say the least, para 40 then envisages that, “PW2-wife of the PW4, as we have noticed, has deposed that PW4 has told her that he received two letters from the deceased where there is reference to harassment about dowry by the accused.” Para 41 then further reveals that, “PW4, when questioned about the letters, admits having sent the letters by way of reply to such letters written by the deceased.”

It is striking to note that it is then elaborated upon in para 42 stating that, “We have already extracted the letters. It is amply clear that there is no reference about any harassment or cruelty on account of dowry in those letters. PW4, in fact, deposes that he cannot tell the reason that why any fact of dowry harassment has not been written in those letters. He admits that those letters were written in reply to the letters written by the deceased. Significantly, the two letters written by the deceased are not produced by the prosecution. The reason for non-production is, they were misplaced during shifting of the house. Even, accepting that those letters were misplaced, the question whether they contained allegation of harassment due to dowry, should have been resolved with reference to the letters admittedly sent by PW4 to the deceased within a few days of the receipt of the letters. In other words, a reasonable view would be that as reference to any harassment regarding dowry is conspicuous by its absence in the letters written by the PW4 to the deceased. There were no allegations of harassment on account of dowry in the letters written by the deceased to her father-PW4. In this regard, the High Court, in the impugned judgment, has proceeded to ignore this vital aspect and proceeded on the basis that the averments made by the deceased of the cruelty caused by the appellants were mentioned in the letters sent by the deceased and letters written by PW4, are not helpful to resolve this issue. The last of the two letters written by PW4-father of the deceased is dated 20.03.1991. The death took place on 05.06.1991. Even, in the letter written by PW4, letter dated 28.05.1991, in an envelope addressed to his son, there is no mention about any harassment or cruelty on account of dowry demand. He only says to ask the deceased not to worry and not to send her even if anybody comes to call her. The High Court, however, still takes the view that dowry related harassment was mentioned in letters sent by the deceased which are not even produced.”

It is a no-brainer that the stand taken by the High Court here is quite inexplicable. So no wonder that in para 43 while disagreeing with the High Court stand, it is then observed by the Apex Court that, “We are of the view that this approach, particularly, in an appeal against acquittal is clearly unacceptable and cannot be proved.”

Moving on, it is then held in para 44 that, “Still further, through the Officer, statements actually made by the prosecution witnesses, have been proved. PW1-sister of the deceased, in her statement, stated as follows:

“The deceased had never complained about the first accused and she was happy always with him and brother-in-law also held her good.” This statement made by her to the Officer was also put to her. She merely says that she does not know how this fact was written in her statement. She says she has not given such a statement. She is unable to give the reason.”

We cannot just gloss over what has been held in para 45 which holds that, “The High Court, in regard to the said statement, gets over previous statement proved though Officer by stating that the statement was not given by the witness and that she was a girl of 13 years and further stated that her deposition in court inspires confidence.”

Needless to say, we also cannot just gloss over what is then held in para 46 that, “Likewise, PW2-mother of the deceased, has given her statement that deceased has never complained about him regarding harassment or beatings or fact of giving less dowry. Still further, she is also proved to have given the statement that she had no suspicion of killing or getting killed by the accused or any harassment by him. Similar findings are rendered by the High Court in regard to the said statements.”

Not stopping here, it is then observed in para 47 that, “We would think that particularly in an appeal from acquittal, the High Court has exceeded its jurisdiction in the appreciation of evidence as well as its approach to how the reliability of the witness is to be evaluated.”

What the Apex Court also found troubling is underscored in para 48 which states that, “We are troubled with another aspect highlighted by the facts of this case. A right of appeal is the creature of statute. Unless appellate power is expressly limited by additional conditionalities, the Appellate Court has power or rather is duty bound in the case of an appeal by the accused to reappraise the evidence. Even in an appeal against acquittal, the appellate court has power of reappraisal of evidence though subject to the limitation that interference would be in a case where the Trial Court’s verdict is against the weight of evidence which is the same thing as a perverse verdict. We need not catalogue the circumstances which are well-settled.”

Interestingly enough, para 49 then stipulates that, “In this case, we notice that the High Court has referred to the contents of the chief examination of the witnesses. Thereafter, it has been stated that the witnesses have been cross-examined at length but nothing has come out in evidence which would create any doubt in his evidence. The witnesses are declared as being found reliable and believable. We have noted the facts in this case.”

More importantly, it is then held in para 50 that, “Truth in a criminal trial is discovered by not merely going through the cross-examination of the witnesses. There must be an analysis of the chief examination of the witnesses in conjunction with the cross examination and the re-examination, if any. The effect of what other witnesses have deposed must also enter into consideration of the matter. On the one hand, the laudable object underlying Section 304B of the IPC is not to be lost sight of. On the other hand, it is equally important that the Appellate Court must not be oblivious to the fact what it is duty bound to find is whether an offence is committed or not and such a pursuit also would embrace the duty of the court to apply its mind to the evidence as a whole and arrive at conclusions as to facts and inferences therefrom as well. After all, at stake for the accused are, priceless rights to liberty, reputation and the right to life, not only of himself but also his family members. The Law Giver, has contemplated that the High Court will be the final arbiter of facts and even of law. The jurisdiction of the Apex Court was deliberately limited to the extra ordinary powers it enjoys under Article 136 of the Constitution of India unless it be exercised under other provisions. What we wish to emphasise is that the cause of justice and the interest of litigants would be better subserved if the Appellate Court takes a closer look, in particular of the cross-examination of the witnesses and analyse the same.”

Importantly, it is then made amply clear in para 51 that, “There is yet another important aspect in this matter. It is true that the deceased died on 05.06.1991 which was within seven years of marriage. It is equally true that her death was due to burning and she committed suicide. It is not a case where the accused stood charged under any provision except Section 304B read with Section 34 of the IPC and Section 306 read with Section 34 of the IPC. The case of abetting suicide under Section 306 read with Section 34 of the IPC has been found unacceptable both by the Trial Court and the High Court and the appellants stand acquitted.”

Suffice it to say, para 52 then adds that, “A perusal of the impugned judgment of the High Court would show, that accepting the version of the prosecution witnesses, the High Court has been persuaded to hold inter alia that the second accused also harassed her by asking her to provide liquor in the glass, and after taking liquor, in the state of intoxication, he used to ask her to sleep with him. On her refusal, it was found that she was subjected to mental cruelty. Reference was made to evidence of PW4-father of the deceased that after he came back from Mumbai, he came to know that the second accused was taking liquor and trying to commit rape and also used to harass her for television and VCR due to which she committed suicide.”

Without mincing any words, the Apex Court then while rapping the High Court on its knuckles makes it absolutely clear in para 53 that, “The High Court was in clear error in taking into consideration the evidence relating to harassment by the second accused on the basis that he, in the state of intoxication, asked her to sleep with him, and on that basis, she was subjected to mental cruelty. The said evidence is totally irrelevant and foreign to the scope of a trial for the offence under Section 304B of the IPC. It does not relate, at all, to the demand for dowry.”

While continuing in the same vein, it is then held in para 54 that, “As regards the demand for dowry, having regard to the state of the evidence, which we have elaborated, we would think that there was no occasion for the High Court to even raise a presumption that the deceased in this case has been subjected to cruelty or harassment in connection with any demand for dowry. It may be true and it is not disputed by appellants that as found by the High Court, the deceased died in the house of the accused. The fact that the High Court proceeded to arrive at finding of guilt in an appeal against acquittal by the Trial Court in the state of the evidence, which we have referred to, does not commend itself to us for acceptance.”

Finally and most importantly, let us now discuss the last two concluding paras. It is held in para 55 that, “In such circumstances, we would think that the High Court overstepped its limits in dealing with an appeal against acquittal and the view taken by the Trial Court appears to have arrived at, having regard to the state of evidence, to be a possible one, which did not merit interference by the Appellate Court.”

Lastly, it is then held in para 56 that, “The upshot of the above discussion is that the appeals arte only to be allowed and we allow the appeals and set aside the judgment of the High Court to the extent it convicts the appellants for the offence under Section 304B read with Section 34 of the IPC and the judgment of the Trial Court is restored. Since, during the course of the appeals, the appellants have been released on bail, the appellants need not surrender and their bail bonds stand discharged.”

All in all, the Apex Court Bench comprising of Justice KM Joseph and Justice Sanjay Kishan Kaul have overruled the High Court judgment which convicted the appellants and clearly held in no uncertain terms as pointed above that, “Cruelty not related to dowry cannot be basis for conviction under Section 304B IPC. It is not any cruelty that becomes the subject matter of the provision but it is the cruelty or harassment for or in connection with, demand for dowry.” It also clarified that the demand for dowry should be made soon before her death! The Trial Court judgment thus clearly stand restored by this landmark and laudable judgment of the Apex Court! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.