DEVINDER @ KALA RAM & ORS.versusTHE STATE OF HARYANA

                        [2012] 9 S.C.R. 792

A               DEVINDER @ KALA RAM & ORS.
                                v.
                    THE STATE OF HARYANA
                (Criminal Appeal No. 636 of 2009)

                        OCTOBER 18, 2012
B
        [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

        PENAL CODE, 1860:

c        s.498-A - Married woman - Subjected to cruelty by her
    husband and his relatives by demanding dowry - Death of the
    victim by burn injuries in the matrimonial house - Held:
    Evidence of prosecution witnesses fully supports the
    prosecution case that the victim, from a few days after the
0   marriage till her death, was subjected to harassment by all
    the three appellants in connection with demands of dowry -
    Therefore, the courts below rightly held the appellants guilty
    of offence punishable uls 498-A.

       s.304-B - Dowry death - Death of a married woman due
E to burn injuries received by her in the matrimonial home -
  Held; Section 304-8 /PC and s. 1138 of Evidence Act only
  provide what the court shall presume if the ingredients of the
  provisions are satisfied, but if the evidence in any case is
  such that the presumption stands rebutted, the court cannot
F hold that the accused was guilty and was punishable for dowry
  death - In the instant case, from the evidence of the Medical
  Officer who examined the victim, and the hospital records, it
  is proved that he was told by the patient herself that she
  sustained burn injuries while cooking meals on stove - The
G statement of deceased is relevant uls 32 of Evidence Act -
  Evidence of the doctor with medical records supports the
  explanation of appellant no. 1 u/s 313 CrPC - Thus, the
  presumption in s. 304-B /PC and 1138 of Evidence Act, that
  the appellants caused dowry death, stood rebutted -
H                                792
     DEVINDER @ KALA RAM & ORS. v. STATE OF              793
                   HARYANA

Therefore, conviction and sentence of appellants uls 304-8      A
/PC is set aside - Evidence Act, 1872 - ss. 3, 4, 32 and 113-
B.

    The wife of appellant no. 1 died in the hospital as a
result of burn injuries received by her in her matrimonial
                                                                B
home within four years of her marriage. Appellant no. 1,
his mother (appellant no.2) and his brother's wife
(appellant no. 3) faced trial and were convicted by the trial
court u/ss 498-A and 304-B IPC. They were sentenced to
three years RI each u/s 498-A and ten years RI each u/s
304-B IPC. The High Court maintained the conviction and         C
the sentence.

     Allowing the appeal in part, the Court

     HELD: 1. The evidence of PW-2, PW-3, PW-4 and PW- D
5 fully supports the finding of the High Court that the
victm, from a few days after marriage till her death, was
subjected to harassment by all the three appellants in
connection with the demand of dowry in the form of
household articles as also cash. In the lengthy cross- E
examinations of PW-2, PW-3, PW-4 and PW-5, their
evidence with regard to such demands of dowry and
harassment has not been shaken. Moreover, there is
evidence to show that appellant No.3 (the wife of the
brother of deceased's husband), also caused harassment
to the deceased in connection with demand of dowry. F
Therefore, the fact that she was living separately with her
husband, even if true, does not make her not liable for
the offence punishable u/s. 498-A, IPC. Therefore, the
Court of Session and the High Court have rightly held the
appellants guilty of the offence punishable u/s. 498A, IPC. G
[Para 7) [800-B-F]

    2.1 On a plain reading of s.3048 IPC, it is clear that
where the death of a woman is caused by any burns or
bodily injury within seven years of her marriage and it is      H
    794    SUPREME COURT REPORTS              [2012] 9 S.C.R.


A shown that soon before her death she was subjected to
  cruelty or harassment by her husband or any relative of
  her husband for, or in connection with, any demand for
  dowry, such husband or relative of her husband shall be
  deemed to have caused dowry death. Thus, where death
B of a woman has been caused by burns, as in the instant
  case, the prosecution has to show: (i) that such death has
  taken place within seven years of her marriage and (ii)
  that soon before her death she has been subjected to
  cruelty or harassment by her husband or any relative of
c her husband for, or in connection with, any demand for
  dowry. Once these two facts are established by the
  prosecution, the husband or the relative shall be
  "deemed" to have caused the dowry death of the woman.
  The word "deemed" in s.3048, IPC, however, does not
  create a legal fiction but creates a presumption that the
0
  husband or relative of the husband has caused dowry
  death. [Para 9] [801-F-H; 802-A-8]

      2.2 Section 1138 of the Evidence Act, 1872 also
  provides that once it is shown that soon before her death
E a 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 person had
  caused the'aowry death. The expression "shall presume"
  has been defined in s.4 of the Evidence Act. Thus, s.1138
F read with s.4 of the Evidence Act would mean that unless
  and until it is proved otherwise, the court shall hold that
  a person has caused dowry death of a woman if it is
  established before the court that soon before her death
  such woman has been subjected by such person to
G cruelty or harassment for, or in connection with, any
  demand for dowry. [Para 10] [802-C-D, E-F]

        2.3 Section 3 of the Evidence Act states that unless
    a contrary intention appears from the context, the word
    "disproved" would mean, a fact is said to be disproved
H
   DEVINDER @ KALA RAM & ORS. v. STATE OF                 795
                 HARYANA
when, after considering the matters before it, the court         A
either believes that it does not exist, or considers its non-
existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the
supposition that it does not exit. Thus, if after considering
the matters before it, the court believes that the husband       B
or the relative of the husband has not caused dowry
death, the court cannot convict such person or husband
for dowry death u/s. 3048 of the IPC. Thus, s. 3048 IPC,
and s.1138 of the Evidence Act only provide what the
court shall presume if the ingredients of the provisions         c
are satisfied, but if the evidence in any case is such that
the presumptions stand rebutted, the court cannot hold
that the accused was guilty and was punishable for
dowry death. [Para 11) [802-G-H; 803-A-8]

       2.4 In the instant case, PW-7, the Medical Officer of     D
. the Civil Hospital, examined the case of the deceased on
  06.08.1992 at 6.30 A.iVi. He stated in his evidence that the
  deceased was brought to the hospital by her husband
  {appellant no.1 ). He has proved the bed-head ticket
  pertaining to the deceased in the hospital (Ext. DD) as        E
  well as his endorsement at Point 'A' on Ext. DD, from
  which it is clear that he was told by the patient herself
  that she sustained burns while cooking meals on a stove.
  This statement of the deceased recorded by PWs is
  relevant u/s. 32 of the Evidence Act as regards the cause      F
  of her death. [Para 12) [803-C-F)

    2.5 The evidence of PW-7 and the endorsement
marked 'A' in Ext. DD are evidence produced by the
prosecution before the court, which supports the                 G
explanation of appellant no.1 in his statement u/s. 313,
Cr.P.C., that the deceased caught fire while she was
preparing tea on the stove. The presumption in s.3048,
IPC and s.1138 of the Evidence Act that the appellants
had caused dowry death of the deceased, thus, stood              H
    796      SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A rebutted. The High Court has disbelieved the evidence of
  PW-7 and the endorsement marked 'A' in Ext. DD merely
  on suspicion and has ignored the relevant provisions of
  the Evidence Act. Therefore, the conviction and sentence
  of the appellants u/s 3048 is set aside and their
B conviction and sentence u/s 498A, IPC sustained. [Para
  13-14] [804-B-E]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 636 of 2009.

C       From the Judgment & Order dated 28.02.2008 of the High
    Court of Punjab and Haryana at Chandigarh in Crl. A. No. 157-
    SB of 1997.

        D.B. Goswami, Khwairakpam Nobin Singh for the
0   Appellants.

          Kamal Mohan Gupta, Sanjeev Kumar for the Respondent.

          The Judgment of the Court was delivered by

E       A.K. PATNAIK, J. 1. This is an appeal by way of special
    leave under Article 136 of the Constitution of India against the
    judgment dated 28.02.2008 of the High Court of Punjab and
    Haryana in Criminal Appeal No.157-SB of 1997.

        2. The facts very briefly are that an FIR was lodged by
F Chhotu Ram (the informant) in P.S. Gannaur on 07 .08.1992 at
  4.45 P.M. In the FIR, the informant stated thus: He got his
  daughter Krishna married to Devinder @ Kala Ram of village
  Rajpur on 19.05.1989. From after a month of thePage 2
  marriage, Krishna kept coming to the house of the informant
G at village Tihar Malik complaining of demands of dowry and
  harassment by the members of the family of Devinder. On
  06.08.1992, Jai Beer Singh informed the informant that Krishna
  was dead. The informant came straightway to the hospital at
  Sonepat and found Krishna dead because of burns. A case
H
   DEVINDER @ KALA RAM & ORS. v. STATE OF                    797
          HARYANA [A.K. PATNAIK, J.]

was registered in P.S. Gannaur under Section 3048/341 of the        A
Indian Penal Code (for short 'the IPC'). Investigation was
conducted and charge-sheet was filed against Devinder, his
mother Chand Kaur and his brother's wife Roshni. The
appellants were put on trial in the Court of learned Sessions
Judge, Sonepat. At the trial, amongst other witnesses the           B
informant Chottu Ram was examined as PW-2, his wife Smt.
Shanti was examined as PW-3 and his two sons, namely, Balraj
and Jai Beer, were examined as PW-4 and PW-5 respectively.
By the judgment dated 06.02.1997, the Sessions Court held
all the three appellants guilty of the offences under Sections      c
498A as well as 304B, IPC. By order dated 08.02.1997, the
Sessions Court sentenced them to undergo rigorous
imprisonment for a period of three years each and to pay a fine
of Rs.1,000/- each and in default to undergo rigorous
imprisonment for one year for the offence under Section 498A,       D
IPC, and for ten years rigorous imprisonment and a fine of
Rs.2,000/- each and in default to undergo rigorous
imprisonment for two years for the offence under Section 304B,
IPC, and directed that the sentences shall run concurrently.
Aggrieved, the appellants filed Criminal Appeal No.157-SB of        E
1997 before the High Court, but by the impugned order the High
Court maintained the convictions and sentences under
Sections 498A and 304B, IPC.

     3. At the hearing of this appeal, learned counsel for the
appellants submitted that Dr. B.D. Chaudhary, the Medical           F
Officer of the Civil Hospital, who was examined as PW-7, has
said in his evidence that Krishna was brought to the hospital
by her husband Kala Ram and there was smell of kerosene in
the body of Krishna when she was brought to the hospital. He
also referred to Ext. DD, which is the bed-head ticket pertaining   G
to Krishna in the hospital in which PW-7 has endorsed that the
patient had told him that she has sustained the burns while
cooking meals on a stove. He submitted that Devinder has
stated in his statement under Section 313 of the Code of
Criminal Procedure, 1973 (for short 'the Cr.P.C.') that on the      H
    798      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A day of the alleged occurrence Krishna caught fire while she was
  preparing tea and he extinguished the fire and as a result he
  received burn injuries and he immediately brought her to the
  hospital. He submitted that this is, therefore, a case of the
  deceased getting burnt by kerosene from a stove and the
8 appellant no.1 had rushed the deceased to the hospital with a
  view to save her and this is not a case of an offence under
  Section 3048, IPC.

         4 . .Learned counsel for the appellants next submitted that
    PW-1, PW-2, PW~3, PW-4 and PW-5 are all near relatives of
C   the deceased and are interested witnesses and their evidence
    on the demands of dowry and harassment and cruelty to the
    deceased ought not to have been believed by the Sessions
    Court and the High Court. He argued that the evidence of these
    interested witnesses moreover are only bald statements and
D   are not supported by any material. He submitted that in the
    absence of any material produced to show that the deceased
    was subjected to electric shock, the Trial Court and the High
    Court could not have held that the prosecution has proved
    beyond reasonable doubt that the appellants had subjected the
E   deceased to cruelty soon. before her death. He relied on the
    decision of this Court in Durga Prasad & Anr. v. State of M.P.
    [2010 CRL. L. J. 3419] in which it has been held that cruelty or
    harassment soon before death must be proved not just by bald
    statements, but by concrete evidence to establish the offences
F   under Section 3048 and Section 498A, IPC. He submitted that
    although the prosecution cited Urned Singh, Tara Chand,
    Randhir Singh and Dariya Singh as its witnesses in the charge-
    sheet, these witnesses have not been examined in Court and,
    thus, an adverse inference should not be drawn ·by the Court
G   against the prosecution.

         5. Learned counsel for the appellants finally submitted that
    the appellant no.3, Roshni, was the wife of the b.i:other of
    Devinder, namely, Attar Singh, and the case of the defence
    before the Sessions Court was that Roshni lived separately with
H
   DEVINDER @ KALA RAM & ORS. v. STATE OF                    799
          HARYANA [A.K. PATNAIK, J.]
her husband Attar Singh in another house. He submitted that          A
PW-8, the Investigating Officer, has admitted in his evidence
that he had come to know that Roshni had been living
separately with her husband in another house. He argued that
there was absolutely no evidence before the Court that Roshni,
appellant no.3, was living in the family house of the appellant      B
nos. 1 and 2 and she has been falsely implicated as an
accused in this case.

     6. In reply, learned counsel for the State submitted that the
High Court has held in the impugned judgment that PW- 7              C
before making any endorsement was required to certify that
Krishna was fit and conscious to make a statement, but PW-
7, while making the endorsement in Ext. DD that the patient
herself told her that she sustained burn injuries while cooking
meals on a stove, has not given this certificate. He submitted
that the High Court has, therefore, held that the endorsement        D
was wrongly made so as to ensure that the truth did not come
to the surface. He submitted that the High Court has further
taken note of the scaled map (Ext. PC) of the place where
Krishna was preparing tea on the stove which has an open
courtyard and had she caught fire while preparing tea on the         E
stove in the open courtyard, she would have certainly run for
safety and the flames of the fire would not have engulfed her to
such an extent as to cause 95% burns. He vehemently argued
that Section 1138 of the Indian Evidence Act, 1872 is clear that
when the question as to whether a person has committed dowry         F
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 person had caused the dowry
death. He argued that in this case, as there was sufficient          G
evidence brought before the Court through PW-2 and PW-3 that
Krishna was being subjected to cruelty or harassment for and
in connection with demand for dowry, there is a presumption
of dowry death caused by the appellants and this presumption
has not been rebutted by the appellants. He submitted that the       H
    800      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A   Trial Court and the High Court are, therefore, right in holding
    the appellants guilty of the offences under Section 498A as well
    as Section 3048, IPC.

          7. The first question that we have to decide is whether the
    Trial Court and the High Court are right in convicting the
8
    appellants under Section 498A of IPC. We have gone through
    the evidence of PW-2, PW-3, PW-4 and PW-5 and we find that
    the evidence therein fully support the finding of the High Court
    that from a few days after marriage till her death, the deceased
    was subjected to harassment in connection with the demand
C   of dowry by all the three appellants. We find from the evidence
    of PW-2, PW-3, PW-4 and PW-5 that the deceased was
    subjected to harassment by the appellants in connection with
    demands of TV, sofa set, electric press, sewing machine,
    tables and chairs, utensils and cash of Rs.20,000/- for
D   recruitment of Devinder and Rs.15,000/- for construction of
    house. In the lengthy cross-examinations of PW-2, PW-3, PW-
    4 and PW-5, their evidence with regard to such demands of
    dowry and harassment has not been shaken. Moreover, in this
    case, there is evidence to show that Roshni, the appellant No.3,
E   also caused harassment to the deceased in connection with
    demand of dowry. Therefore, the fact that she was living
    separately with her husband even if true, does not make her
    not liable for the offence under Section 498-A, IPC. Hence, the
    Sessions Court and the High Court, in our considered opinion,
F   have rightly held the appellants guilty of the offence under
    Section 498A, IPC.

         8. The second question that we have to decide is whether
    the Sessions Court and the High Court were right in holding
G   the appellants guilty of the offence under Section 3048, IPC.
    Section 3048 of the IPC and Section 1138 of the Indian
    Evidence Act, 1872 are to be read together and are quoted
    hereinbelow:

          "3048. Dowry death.-(1) Where the death of a woman
H         is caused by any burns or bodily injury or occurs otherwise
   DEVINDER@ KALA RAM & ORS. v. STATE OF                      801
          HARYANA [A.K. PATNAIK, J.]
     than under normal circumstances within seven years of her       A
     marriage and it is shown that soon before her death she
     was subjected to cruelty or harassment by Iler 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         9
     have caused her death.

     Explanation.-For the purpose of this subsection, "dowry"
     shall have the same meaning as in section 2 of the Dowry
     Prohibition Act, 1961 (28 of 1961 ).
                                                                     c
     (2) Whoever commits dowry death shall be punished with
     imprisonment for a term which shall not be less than seven
     years but which may extent to imprisonment for life."

     "1138. Presumption as to dowry death.- When the                 0
    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
                                                                     E
    person had caused the dowry death.

    Explanation.-For the purposes of this section, "dowry
    death" shall have the same meaning as in section 3048
    of the Indian Penal Code (45 of 1860)."
                                                                     F
     9. On a plain reading of Section 3048 of the IPC, it is clear
that where the death of a woman is caused by any burns or
bodily injury within seven years of her marriage and it is shown
that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for,        G
or in connection with, any demand for dowry, such husband
shall be deemed to have caused dowry death. Thus, where
death of a woman has been caused by burns as in the present
case, the prosecution has to show: (i) that such death has taken
place within seven years of her marriage and (ii) that soon
                                                                     H
    802       SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A   before her death she has been subjected to cruelty or
    harassment by her husband or any relative of her husband for,
    or in connection with, any demand for dowry. Once these two
    facts are established by the prosecution, the husband or the
    relative shall be "deemed" to have caused the dowry death of
8   the woman. The word "deemed" in Section 3048, IPC, however,
    does not create a legal fiction but creates a presumption that
    the husband or relative of the husband has caused dowry death.

       10. Section 1138 of the Indian Evidence Act, 1872 also
  provides that once it is shown that soon before her death a
C 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 person had caused the
  dowry death. The expression "shall presume" has been defined
  in Section 4 of the Indian Evidence Act, 1872, relevant part of
D which is extracted hereinbelow:

          "'Shall presume'.-Whenever it is directed by this Act
          that the Court shall presume a.fact, it shall regard such fact
          as proved, unless and until it is disproved."

E Thus, Section 1138 read with Section 4 of the Indian Evidence
  Act, 1872 vtould ·mean that unless and until it is proved
  otherwise, the Court shall hold that a person has caused dowry
  death of a woman if it is established before the Court that soon
  before he; death such woman has been subjected by such
F person to cruelty or harassment for, or in connection with, any
  demand for dowry.

        11. Section 3 of the Indian Evidence Act, 1872 states that
  unless a contrary intention appears from the context, the word
G "disproved" would mean a fact is said to be disproved when,
  after considering the matters before it, the Court either believes
  that it does not exist, or considers its nonexistence so probable
  that a prudent man ought, under the circumstances of the
  particular case, to act upon the supposition that it does not exit.
H Thus, if after considering the matters before it, the Court
   DEVINDER @ KALA RAM & ORS. v. STATE OF                     803
          HARYANA [A.K. PATNAIK, J.]
believes that the husband or the relative of the husband has not     A
caused dowry death, the Court cannot convict such person. or
husband for dowry death under Section 3048 of the IPC.
Section 3048, IPC, and Section 1138 of the Indian Evidence
Act, 1872, in other words, only provide what the Court shall
presume if the ingredients of the provisions are satisfied, but      8
if the evidence in any case is such that the presumptions stand
rebutted, the Court cannot hold that the accused was guilty and
was punishable for dowry death.

      12. In the facts of the present case, we find that PW-7, the
Medical Officer of the Civil Hospital, examined the case of the      C
deceased on 06.08.1992 at 6.30 A.M. and he has clearly
stated in his evidence that on examination she was conscious
and that there were superficial to deep burns all over the body
except some areas on feet, face and perineum and there was
smell of kerosene on her body. He also stated in his evidence        D
that the deceased was brought to the hospital by her husband
Kala Ram (appellant no.1 ). He has proved the bed-head ticket
pertaining to the deceased in the hospital (Ext. DD) as well as
his endorsement at Point 'A' on Ext. DD, from which it is clear
that he was told by the patient herself that she sustained burns     E
while cooking meals on a stove. This statement of the deceased
                          (

recorded by PWs is relevant under Section 32 of the Indian
Evidence Act, 1872 which provides that statements, written or
verba1, of relevant facts made by a person who is dead, are
themselves relevant facts when the statement is made by a            F
person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
in cases in which the cause of that person's death comes into
question. Moreover, the appellant no.1 in his statement under
Section 313, Cr.P.C., has stated:                                    G

    "On that day of the alleged occurrence Krishna deceased
    was preparing tea and incidentally caught fire. I
    extinguished the fire, as a result of which I received burn
    injuries and immediately brought her to General Hospital,
                                                                     H
    804     SUPREME COURT REPORTS                   [2012] 9 S.C.R.

A        Sonepat, and on the advice of the M.O. I was taking her
       . for better treatment to Delhi but unfortunately she died."

        13. The evidence of PW-7 and the endorsement marked
  'A' in Ext. DD are evidence produced by the prosecution before
8 the Court and such evidence produced by the prosecution
  before the Court s.upports the explanation of the appellant no.1
  in his statement under section 313, Cr.P.C., that the deceased
  caught fire while she was preparing tea on the stove. The
  presumption in Section 3048 of the IPC and Section 1138 of
  the Indian Evidence Act, 1872 that they had caused dowry death
C of the deceased, thus, stood rebutted by the evidence in this
  case. We find that the High Court has disbelieved the evidence
  of PW-7 and the endorsement marked 'A' in Ext. DD merely
  on suspicion and has ignored the relevant provisions of the
  Indian Evidence Act, 1872, which we have discussed.
D
        14. In the result, we allow this appeal in part, set aside the
  conviction and sentences for the offence under Section 3048,
  IPC, and sustain the conviction and sentences under Section
  498A, IPC. The appellant no.2 is already on bail. If appellant
E nos.1 and 3 have already undergone the sentence under
  Section 498A, IPC, they shall be released forthwith.

    R.P.                                     Appeal partly allowed.