Holding

A conviction under Section 304B requires proof of cruelty "soon before" death; lacking such proof, the conviction cannot stand, but a separate conviction under Section 498A is permissible as the offences are distinct and not mutually exclusive.

Summary

The appellants, Kaliyaperumal and Muthulakshmi, were convicted under Sections 304B (dowry death) and 498A (cruelty) of the IPC for the suicide of their daughter‑in‑law, Devasena, after alleged dowry demands and harassment. The trial court and High Court upheld both convictions, though the High Court reduced the 304B sentence. On appeal, the Supreme Court examined whether the prosecution had proved the essential element of cruelty "soon before" death required under Section 304B and the presumption in Section 113B of the Evidence Act. It held that there was insufficient material to sustain Muthulakshmi’s conviction under 304B, but the evidence was adequate for conviction under 498A, and that the two sections are not mutually exclusive. Consequently, the Court set aside the 304B conviction for Muthulakshmi while upholding her 498A conviction, and affirmed both convictions for Kaliyaperumal.

Issues considered

The adequacy of evidence to attract culpability under Section 304B IPC for the appellants.
Whether the presumption under Section 113B Evidence Act can be raised without proof of cruelty "soon before" death.
Whether a conviction under Section 498A IPC can stand when the conviction under Section 304B fails.
The interpretation and applicability of the term "soon before her death" in Sections 304B and 113B.
Whether Sections 304B and 498A IPC are mutually exclusive.

Legislation cited

Dowry Prohibition Act, 1961s. 2
Indian Evidence Act, 1872s. 113B
Indian Penal Code, 1860s. 304B, s. 306, s. 498A

Subjects

dowry deathSection 304BSection 498Apresumption of lawEvidence Act 113Bsoon before deathproximate testcriminal appeal

Judgment

~
KALIY APERUMAL AND ANR. A
v.
STATE OF TAMIL NADU

AUGUST 27, 2003

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B
Penal Code. 1860:

Sections 304B and 498A-Dowry Death-Conviction of accused by
courts below-On appeal, held: On the facts of the case one accused
rightly convicted-Regarding another accused material to attract culpability
c
under Section 304B inadequate, but conviction under Section 498A upheld
-Dowry Prohibition Act, 1961-Section 2.

Sections 304B and 498A-Dowry Death-Conviction under Section
498A on failure of charge under Section 304B-Propriety of-Held: D
Accused charged and acquitted under Section 304B can be convicted under
Section 498A, if such a case is made out-The Sections are not mutually
inclusive.

)
Evidence Act. I 872-Section 113B-Presumption of Dowry Death-
When can be raised-Held: It is presumption of law-It can be raised when E
case is tried under Section 304B /PC, where woman is subjected to cruelty
by her husband or his relatives in connection with demand of dowry soon
before her death.

Words and Phrases: F
"Soon before her death "-Meaning of in the context ofSection 304B,
Penal Code, 1860 and Section 1l3B of Evidence Act, 1872.

Appellants alongwith their son were charged under Sections 3048
• and 498A, IPC for having caused death of their daughter-in law. It was G
alleged that at the time of marriage dowry demands were made and
since the parents of the deceased failed to meet the demands even after
the marriage, the deceased was insulted, humiliated and tortured.
Husband of the deceased was working abroad. When the deceased left
her matrimonial home, appellant No. I took her back and beat her with H
I

,
2 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A chappal in public street. After some days parents of the deceased
received information that she had committed suicide. Report was
lodged. After inquil y It was found that death was due to dowry torture.
Charge-sheet was filed. Trial Court convicted the appellants under
Sections 3048 and 498A IPC and acquitted the husband of the
B deceased. On appea~ High Court confirmed the conviction holding
that deceased had committed suicide because of the cruelty and
tortures perpetuated by the appellants. However, sentence under
Section 3048 was reduced.

In appeal to this Court, appellants contended that Section 3048
C IPC and Section 1138 of Evidence Act were not applicable because
there was no evidence to show that soon before the deceased committed
suicide, there was any cruelty or torture in action with demand of
dowry: there was no reason for convicting the appellants when on the
same evidence husband of the deceased was acquitted.
D
Partly allowing the appeal, the Court

HELP: 1.1. Appellant No. I has been rightly convicted for offence
punishable under Section 3048 and Section 498A IPC. As the High
Court has awarded the minimum punishment prescribed, no
E interference with the sentences is called for. So far as appellant No.2
is concerned, there is inadequacy of material to attract culpability
under Section 3048. But Section 498A IPC is clearly attracted to her
case. (12-B-C)

F 1.2. As per the definition of 'dowry death' in Section 3048 IPC
and the wording in the 11resumptive Section 1138 of the Evidence Act,
1872, one of the essential ingredients, amongst others, in both the
provisions is that the concerned woman must have been "soon before
her death" subjected to cruelty or harassment "for or in connection
G with the demand of dowry". Presumption under Section 1138 is a
presumption of law. On proof of the essentials mentioned therein, it
becomes obligatory on the Court to raise a presumption that tb.e
accused caused the dowry death. (8-B-C)

1.3. A conjoint reading of Section 1138 of the Evidence Act and
H Section 3048 IPC shows that there must be material to show that soon

'
KALIY APERUMAL v. STATE 3
- .... before her death the victim was subjected to cruelty or harassment. A
Prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the 'death occurring
• otherwise than in normal circumstances'. The expression 'soon before'
is very relevant where Section 1138 of the Evidence Act and Section
3048 are pressed into service. Prosecution is obliged to show that soon B
before the occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to be led by
prosecution. "Sl)on before" is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid
down as to what would constitute period of soon before the occurrence.
It would be hazardous to indicate any fixed period, and that brings in C
the importance of a proximity test both for the proof of an offence of
dowry death as well as for raising a presumption under Section 1138
of the Evidence Act. The expression 'soon before her death' used in
the substantive Section 3048 IPC and Section 1138 of the Evidence Act
is present with the idea of proximity test. No definite period has been D
Indicated and the expression 'soon before' is not defined. Suffice,
however, to indicate that the expression 'soon before' would normally
imply that the interval should not be such between the concerned
cruelty or harassment and the death in question. There must be
existence of a proximate and live-link between the effect of cruelty E
based on dowry demand and the concerned death. If alleged incident
of cruelty is remote in time and has become stale enough not be disturb
mental equilibrium of the woman concerned, it would be of no
consequence. (8-G-H, 9-A-E)

2. Sections 3048 and 498A IPC cannot be held to be mutually F
inclusive. These provisions deal with two distinct offences. It is true
that cruelty is a common essential to both the Sections and that has
to be proved. The Explanation to Section 498A gives the meaning of
'cruelty'. In Section 3048 there is no such explanation about the
meaning of 'cruelty'. But having regard to common background of G
these offences it has to be taken that the meaning of 'cruelty' or
'harassment' is the same as prescribed in the Explanation to Section
498A under which 'cruelty' by itself amounts to an offence. Under
Section 3048 it is 'dowry death' that is punishable and such death
should have occurred within seven years of marriage. No such period H

)
4 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. ....
A is mentioned in Section 498A. A person charged and acquitted under
Section 3048 can l:e convicted under Section 498A without the charge
being there, if such a case is made out. If the case is established, there
can be a conviction under both the sections. Section 498A IPC and
Section 1138 of the Evidence Act include in their amplitude past events
B of cruelty. Period of operation of Section 1138 of Evidence Act is seven
years, presumption arises when a woman committed suicide within a
period of seven years, from the date of marriage. [10-D-G)

Akula Ravinder and Ors. v. The State ofAndhra Pradesh, AIR (1991)
SC 1142; Satvir Singh and Ors. v. State ofPunjab and Anr., (2001) 8 SCC
C 633 and K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors., (2003)
I SCC 217, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1358 of 2002.
D From the Judgment and Order dated 16.9.2002 of the Madras High
Court in Cr!. A. No. 950 of 1995.

V.J. Francis and Radhakrishnan for the Appellants.

E A.T.M. Rangaramanujam, V. Balaji, Ms. T.S. Shanthi, and Mrs. Aarti
Radhakrishnan for P.N. Ramalingam for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The appellants who were found guilty of
F offences punishable under Section 3048 and Section 498A of the Indian
Penal Code, 1860 (tor short 'IPC') by the Assistant Sessions Judge,
Nagapattinam, unsuccessfully challenged the conviction before the Madras
High Court. By the impugned judgment the High Court only reduced the
sentence from nine years to seven years for the offence punishable under
G Section 3048 IPC but confirmed the sentence five years as imposed in
respect of offences punishable under Section 498A, on the allegation that
Devasena (hereinafter referred to as 'the deceased') committed suicide
because of the cruelty and tortures perpetuated by the appellants who were
her father-in-law and mother-in-law respectively along with husband
H Ashok Kumar (since acquitted).
KALIYAPERUMAL v. STATE [PASAYAT, J.] 5
-·
Synoptical resumption of factual position is as follows: A
The marriage between the deceased and Ashok Kumar was solemnized
on 27.1.1989. At the time of!he marriage, it was a condition stipulated by
the accused persons that along with other articles, 15 sovereigns of jewels
and a cash of Rs. I0,000/- was to be paid. Though the parents of the
deceased (PWs 3 and 4) agreed to meet the demands, they could only B
arrange 12 sovereigns of jewels and cash of Rs. 7,000 and gave it to the
accused persons at the time of marriage. They agreed to give the balance
as early as practicable. Ashok Kumar was working abroad. Whenever he
left India, he used to take his wife and leave her with her parents i.e. PWs
3 and 4. Since the balance jewellery and cash were not given as agreed, C
the accused persons continued to make demand therefor. Deceased was
insulted, humiliated and tortured. When they became unbearable, the
deceased came out of the matrimonial home. The appellant no.I
Kaliyaperumal took her back and beat her with chappel in a public street.
This was witnessed by PW-5. On hearing about the incident, PWs. 3 and D
4 went to the house of appellant no. I. Here again they were insulted and
abused by appellant no.I. On 9.12.1992, PW.3 received the information
that their daughter (deceased) had committed suicide. Both PWs. 3 and
4 came to the house of appellant no. I. At that time the village Administrative
Officer (PW. I) was present. On the basis of the statement given by PW.3, E
Ex.Pl was prepared by PW! and sent to the police station. PW.9 received
the report and a case was registered. Intimation was sent to the RDO to
conduct inquest. He came to the spot and obtained statements from the
accused-appellants, parents of the deceased and other witnesses. Thereafter
he sent Ex.PS report to PW.I I D.S.P. for further action. The enquiry of
RDO revealed that the death was due to dowry torture. PW.I I took up F
further investigation. On completion of investigation, charge sheet was
filed. During trial, thirteen witnesses were examined. Accused person
pleaded false implication. As noted above, the appellants were convicted
while the husband of the deceased was acquitted. The conviction and
sentences imposed were challenged before the Madras High Court. By the G
impugned judgment, as noted above, the conviction was maintained but the
sentence was reduced in respect of offence under Section 304B.

In support of the appeal, learned counsel for the appellants submitted
that Section 304B has no application because there was no evidence to H

)
·-
6 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A show that soon before deceased committed suicide, there was any cruelty
or torture. According to him Section l l3B of the Indian Evidence Act,
1872 (for short 'Evidence Act') has no application because the prosecution
has failed to prove that "soon before her death" the victim was subjected
to such cruelty or harassed in action with demand for dowry. It was also
B submitted that both the Trial Court and the High Court have relied on
inadmissible evidence. The RDO who submitted the report was not
examined and therefore, letters claimed to have been written by the
husband of the deceased accused Ashok Kumar could not have considered.
The RDO was not examined and PWl2 an Assistant in the office was
C examined to show that the report was given by the RDO. The evidence
of PWs 3 and 4 were attacked on the ground of exaggerations. It was
submitted that on the selfsame evidence accused Ashok Kumar the husband
was acquitted, there is no reason for convicting the present appellants. In
response, learned counsel for the State has submitted that the High Court
has analysed the evidence minutely and has come to the conclusion that
D the prosecution has been able to bring home the accusations against the
accused persons.

Section 304B IPC deals with dowry death which reads as follows:

"304B. Dowry Death- (I) Where the death of a woman is caused
E by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it
is shown that soon before her death she was subjected to cruelty
or harassment by· her husband or any relative of her husband for,
or in connection with any demand for dowry, such death shall be
F called "dowry death" and such husband or relative shall be
deemed to have caused her death.

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

H The provision has application when death of a woman is caused by any
KALIYAPERUMAL v. STATE [PASAYAT, J.] 7

b~ms or bodily injury or occurs otherwise than under normal circumstances A
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
relatives of her husband for, or in connection with any demand for dowry.
In order to attract application of Section 304B !PC, the essential ingredients
are as follows:-
B
(i) The death of a woman should be caused by bums or bodily
injury or otherwise than under a normal circumstance.
)
(ii) Such a death should have occurred within seven years of her
marriage. c
(iii) She must have been subjected to cruelty or harassment by
her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection
with demand of dowry. D
(v) Such cruelty or harassment is shown to have been meted out
to the woman soon before her death.

Section l 13B of the Evidence Act is also relevant forthe case at hand. Both E
Section 304B IPC and Section 113B of the Evidt:nce Act were inserted as
noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with
a view to combat the increasing menace of dowry deaths. Section 113B
reads as follows:-

"113B: Presumption as to dowry death- When the question is F
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 person had caused the dowry death. G
Explanation - For the purposes of this section 'dowry death' shall
have the same meaning as in Section 304-B of the Indian Penal
Code (45 of 1860)."

The necessity for insertion of the two provisions has been amply analysed H

' >
8 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A by the Law Commission of India in its 2Ist Report dated I0th August, I 988
on 'Dowry Deaths and Law Reform'. Keeping in view the impediment
in the pre-existing law in securing evidence to prove dowry related deaths,
legislature thought it wise to insert a provision relating to presumption of
dowry death on proof· of certain essentials. It is in this background
B presumptive Section I 13B in the Evidence Act has been inserted. As per
the definition of 'dowry death' in Section 304B IPC and the wording in
the presumptive Section 113B of the Evidence Act, one of the essential
ingredients, amongst others, in both the provisions is that the concerned
woman must have been "soon before her death" subjected to cruelty or
harassment "for or in connection with the demand of dowry". Presumption
C under Section 113B is a presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the Court to raise a presumption
that the accused caused the dowry death. The presumption shall be raised
only on proof of the following essentials:

D (I) The question before the Court must be whether the accused
has committed the dowry death of a woman. (This means that
the presumption can be raised only if the accused is being tried
for the offence under Section 304B IPC).

(2) The woman was subjected to cruelty or harassment by her
E husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with
any demand for dowry.

F (4) Such cruelty or harassment was soon before her death.

A conjoint reading of Section I 13B of the Evidence Act and Section
304B IPC shows that there must be material to show that soon before her
death ~ victim was subjected to cruelty or harassment. Prosecution has
G to rule out the possibility of a natural or accidental death so as to bring
it within the purview of the 'death occurring otherwise. than in normal
circumstances'. The expression 'soon before' is very relevant where
Section I 13B of the Evidence Act and Section 3048 IPC are pressed into
service. Prosecution is obliged to show that soon before the occurrence
there was cruelty or harassment and only in that case presumption operates.
H Evidence in that regard has to be led by prosecution. 'Soon before' is a

''
KALIYAPERUMAL v. STATE [PASAYAT, J.] 9

relative term and it would depend upon circumstances of each case and A
no strait-jacket formula can be laid down as to what would constitute a
period of soon before the occurrence. It would be hazardous to indicate
,, any fixed period, and that brings in the importance of a proximity test both
for the proof of an offence of dowry death as well as for raising a
presumption under Section l 13B of the Evidence Act. The expression B
'soon before her death' used in the substantive Section 304B IPC and
Section l 13B of the Evidence Act is present with the idea of proximity
test. No definite period has been indicated and the expression 'soon before'
is not defined. A reference to expression 'soon before' used in Section
114. Illustration (a) of the Evidence Act is relevant. It lays down that a C
Court may presume that a man who is in the possession of goods soon
after the theft, is either the thief has received the goods knowing them to
be stolen, unless he can account for his. possession. The determination of
the period which can come within the term 'soon before' is left to be
determined by the Courts, depending upon facts and circumstances of each
case. Suffice, however, to indicate that the expression 'soon before' would D
normally imply that the interval should not be much between the concerned
cruelty or harassment and the. death in question. There must be existence
of a proximate and live-link between the effect of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote
in time and has become stale enough not to disturb mental equilibrium of E
the woman concerned, it would be of no consequence.

Further question is whether a case under Section 498A has been made
out, even if accusations under Section 304B fail. Section 498A reads as
follows:
F
"498A: Husband or relative of husband of a woman subjecting
her to cruelty- Whoever, being the husband or the relative of the'
husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three
years and shall also be liable to fine. G
Explanation - For the purpose of this section 'cruelty' means -

(a) 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
a-
10 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
....
A danger to life, limb or health (whether mental or physical) of the
woman; or

(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
B account of failure by her or any person related to her to meet such
demand."

Consequences of cruelty which are likely to drive a woman to commit
suicide or to cause grave injury or danger to life, limb or health, whether
C mental or physical of the woman is required to be established in order to
bring home the application of Section 498A !PC. Cruelty h:ls been defined
in the Explanation for the purpose of Section 498A. Substantive Section
498A !PC and presumptive Section l 13B of the Evidence Act have been
inserted in the respective statutes by Criminal Law (Second Amendment)
D Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be
held to be mutually inclusive. These provisions deal with two distinct
offences. It is true that cruelty is a common essential to both the Sections
and that has to be proved. The Explanation to Section 498A gives the
meaning of 'cruelty'. In Section 304B there is no such explanation about
the meaning of 'cruelty'. But having regard to common background to
E these offences it has to be taken that the meaning of 'cruelty' or
'harassment' is the same as prescribed in the Explanation to Section 498A
under which 'cruelty' by itself amounts to an offence. Under Section 304B
it is 'dowry death' that is punishable and such death should have occurred
within seven years of marriage. No such period is mentioned in Section
F 498A. A person charged and acquitted under Section 3048 can be
convicted under Section 498A without that charge being there, if such a
case is made out. If the case is established, there can be a conviction under
both the sections. (See Akula Ravinder and Ors. v. The State of Andhra
Pradesh, AIR (1991) SC 1142). Section 498A IPC and Section l 13B of
G the Evidence Act include in their amplitude past events of cruelty. Period
of operation of Section I 13B of the Evidence Act is seven years,
presumption arises when a woman committed suicide within a period of
seven years from the date of marriage.

Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry
H Act') defines "dowry" as under:-
. ..;
KALIYAPERUMAL v. STATE [PASAYAT, J.] Il

Section 2. Definition of 'dowry' - In this Act, 'dowry' means any A
property or valuable security given or agreed to be given either
directly or indirectly -

(a) by one party to a marriage to the other party to the
marriage; or
B
(b) by the parents of either party to a marriage or by any
other person, to either party to the marriage or to any other
person,

at or before or any time after the marriage in connection with the C
marriage of the said parties, but does not include dower or mehr
in the case of persons to whom the Muslim personal law (Shariat)
applies.

Explanation I- For the removal of doubts, it is hereby declared
that any presents made at the time of a marriage to either party D
to the marriage in the form of cash, ornaments, clothes or other
articles, shall not be deemed to be dowry within the meaning of
this section, unless they are made as consideration for the
marriage of the said parties.
E
Explanation II- The expression 'valuable security' has the same
meaning in Section 30 of the Indian Penal Code (45 of 1860)."

As was observed by this Court in Satvir Singh and Ors. v. State of
Punjab and Anr., [2001] 8 sec 633, "suicidal death" of a married woman F
within seven years of her marriage is covered by the expression "death of
a woman is caused .......or occurs otherwise than undernormal circumstances"
as expressed in Section 3048 !PC.

Section 306 !PC deals with abetment of suicide. The said provision
reads as follows: G
"306: Abetment of suicide - If any person commits suicide,
whoever abets the commission of such suicide, shall be punished
with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine."
H
12 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R. ...
A It may be noted that though no charge was framed under Section 306
!PC that is inconsequential in view of what has been stated by a three-judge
Bench of this Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao
and Ors., [2003] I SCC 217.

When the factual scenario is considered in the background of the
B aforesaid principles the inevitable conclusion is that the appellant-
Kaliyaperumal has been rightly convicted for offence punishable under
Section 304B and Section 498A. As the High Court has awarded the
minimum punishment prescribed no interference with the sentences is
called for. So far as appellant no.2 Muthulakshmi is concerned, there is
c inadequacy of material to attract culpability under Section 304B. But
Section 498A IPC is clearly attracted to her case. Therefore, the appeal
is allowed so far as her conviction under Section 304B IPC is concerned,
but stands dismissed so far as it relates to offence punishable under Section
498A IPC.
D
The appeal is allowed to the extent indicated above so far as accused
Muthulakshmi. is concerned, but fails so far as accused-appellant
Kaliyaperumal is concerned.
,,
K.K.T. Appeal partly allowed.