Supreme Court of India
KASHMIR KAUR & ANR.versusSTATE OF PUNJAB
- Citation
- 2012 INSC 585
- Decided
- 12 December 2012
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The phrase 'soon before' in Section 3048 IPC is a relative term requiring a proximate, non‑stale link between dowry‑related cruelty and death, and the prosecution satisfied this requirement, so the conviction stands.
Summary
Kashmir Kaur and another were convicted under Section 3048 IPC (dowry death) read with Section 34 IPC and Section 498A IPC for the death of the deceased woman, which occurred 11 months after her marriage. The prosecution proved that the victim was repeatedly harassed and tortured by her mother‑in‑law, brother‑in‑law and his wife for cash, a scooter and a stereo set, and that she had written letters to her father detailing the dowry demands shortly before her death. The key legal issue was the interpretation of the phrase "soon before" in Section 3048 and whether the evidence satisfied the ingredients of a dowry death, thereby invoking the presumption under Section 1138 of the Evidence Act. The Court held that "soon before" is a relative term requiring a proximate link between the dowry‑related cruelty and the death, and that the prosecution had established this link. Consequently, the Court upheld the conviction and dismissed both appeals, cancelling the bail bond of the appellant.
Issues considered
- The meaning and scope of the term 'soon before' in Section 3048 IPC
- Whether the facts established a proximate link between dowry‑related cruelty and the death of the woman
- Whether the presumption under Section 1138 of the Evidence Act is attracted
- Whether the conviction under Sections 3048, 34 and 498A IPC is sustainable on the evidence
Legislation cited
- Dowry Prohibition Act, 1961s. 2
- Indian Evidence Act, 1872s. 1138
- Indian Penal Code, 1860s. 3048, s. 34, s. 498A
Subjects
dowry deathSection 3048 IPC"soon before" interpretationpresumption under Section 1138deeming fictioncruelty and harassmentproximate linkcriminal jurisprudence
Judgment
(2012] 11 S.C.R. 802
A KASHMIR KAUR & ANR.
v.
STATE OF PUNJAB
(Criminal Appeal Nos. 915-916 of 2008)
DECEMBER 12, 2012
B
[DR.B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - s. 3048 - Dowry death - Applicability
C of s.3048 - Main ingredient of the offence to be established
- Held: Is that soon before the death of the deceased, she
was subjected to cruelty and harassment in connection with
demand of dowry - Expression "soon before" - Meaning - It
is a relative term and it would depend upon circumstances of
D each case - Proximity test - There must be existence of a
proximate or life link between the effect of cruelty based on
dowry demand and the concerned death - Words and
Phrases - ·soon before" - Meaning of.
E Penal Code, 1860- s.3048 - Dowry death - Exception
to the cardinal principles of criminal jurisprudence - Concept
of deeming fiction - Held: s.3048 is an exception to the
cardinal principles of criminal jurisprudence that a suspect in
the Indian Law is entitled to protection of Article 20 of the
Constitution, as well as, presumption of innocence in his
F favour - Concept of deeming fiction applied by Legislature
to the provisions of s.3048 - Once the ingredients of s.3048
are satisfied it will be called dowry death and by deemed
fiction of law the husband or the relatives will be deemed to
have committed that offence - Such deeming fiction,
G however, is a rebuttable presumption and the husband and
his relatives, can, by leading their defence prove that the
ingredients of s. 3048 were not satisfied - Constitution of India,
1950 - Article 20 - Evidence Act, 1872 - s.1138.
H 802
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 803
Penal Code, 1860- s.3048 r/w s.34 and s.49BA - Dowry A
death - Death of ma"ied woman 11 months after marriage -
Complaint against the in-laws - Conviction of accused-
appel/ants - Justification - Held: Justified - The death was
not normal as evidenced by the version of PW1 postmortem
doctor, the post mortem certificate and also the report of B
Chemical Examiner - Ante mortem injuries and other
abnormalities found on the body of the deceased - Possibility
of death due to poisoning - Evidence of PW2 (deceased's
father) and PW3 read alongwith the letters written by the
deceased to PW2 disclosed that the accused were c
demanding Rs.30,0001- in cash apart from a stereo set and
a scooter - According to PW2, few days prior to the death,
deceased came to his house and expressed her dire need
for payment of Rs.30,000/- as demanded by her in-Jaws and
that she was being harassed on that score - Evidence of PW3
0
to the effect that on the date of the death, he witnessed the
torture meted out to the deceased at the hands of her in-laws
- In facts and circumstances of the case, legal requirements
for offence falling u/ss.3048 and 49BA /PC with the aid of
s.1138 of the Evidence Act conclusively proved - Evidence E
Act, 1972 - s.1138.
The daughter of PW.2 died about 11 months after her
marriage. There were ante-mortem injuries and other
abnormalities on the body of the deceased. The
prosecution case was that the deceased was being F
repeatedly harassed and tortured by her mother-in-law,
brother-in-law (appellant no.2) and his wife (appellant
no.1) for cash, scooter and other articles, as they were
not satisfied with the amount of dowry given in the
marriage. The mother-in-law of the deceased passed G
away in the meantime.
The trial Court convicted the two appellants under
Section 3048 read alongwith 34 IPC as well as under
Section 498A IPC and sentenced them to seven years
rigorous imprisonment under Section 3048 IPC and two H
804 SUPREME COURT REPORTS [2012) 11 S.C.R.
A years rigorous imprisonment under Section 498A IPC.
The sentences were directed to run concurrently. The
order was affirmed by the High Court and therefore the
instant appeals.
B Meanwhile appellant no.1 died and therefore, the SLP
filed on his behalf became infructuous. However,
appellant no.1 made a prayer to substitute her as the legal
representative of appellant no.2 and pursue his appeal as
well in order to enable her to get the monetary benefits
C from the employer of appellant no.2.
Dismissing the appeals, the Court
HELD: 1.1. The following principles can be culled out
in regard to Sections 3048 and 498A IPC and Section
0 1138 of the Evidence Act:
(a) To attract the provisions of Section 3048 IPC
the main ingredient of the offence to be
established is that soon before the death of the
deceased she was subjected to cruelty and
E harassment in connection with the demand of
dowry.
(b) The death of the deceased woman was
caused by any burn or bodily injury or some
F other circumstance which was not normal.
(c) Such death occurs within seven years from
the date of her marriage.
(d) That the victim was subjected to cruelty or
G harassment by her husband or any relative of
her husband.
(e) Such cruelty or harassment should be for or
in connection with demand of dowry.
H
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 805
(f) It should be established that such cruelty and A
harassment was made soon before her death.
(g) The expression (soon before) is a relative term
and it would depend upon circumstances of
each case and no straightjacket formula can B
be laid down as to what would constitute a
period of soon before the occurrence.
(h) 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 c
of dowry death as well as for raising a
presumption under Section 1138 of the
Evidence Act.
(i) Therefore, the expression "soon before" D
would 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 or life link
between the effect of cruelty based on dowry E
demand and the concerned death. In other
words, it should not be remote in point of time
and thereby make it a stale one.
ij) However, the expression "soon before"
should not be given a narrow meaning which F
would otherwise defeat the very purpose of
the provisions of the Act and should not lead
to absurd results.
(k) Section 3048 is an exception to the cardinal G
principles of criminal jurisprudence that a
suspect in the Indian Law is entitled to the
protection of Article 20 of the Constitution, as
well as, a presumption of innocence in his
favour. The concept of deeming fiction is H
806 SUPREME COURT REPORTS [2012] 11 S.C.R.
A hardly applicable to criminal jurisprudence but
in contradistinction to this aspect of criminal
law, the legislature applied the concept of
deeming fiction to the provisions of Section
3048.
B
(I) Such deeming fiction resulting in a
presumption is, however, a rebuttable
presumption and the husband and his
relatives, can, by leading their defence prove
that the ingredients of Section 3048 were not
c satisfied.
(m) The specific significance to be attached is to
the time of the alleged cruelty and harassment
to which the victim was subjected to, the time
D of her death and whether the alleged demand
of dowry was in connection with the marriage.
Once the said ingredients were satisfied it will
be called dowry death and by deemed fiction
of law the husband or the relatives will be
E deemed to have committed that offence. [Para
16) [819-E-H; 820-A-H; 821-A-E]
1.2. In the case on hand, the following facts were
uncontroverted:
F (i) The death of the deceased occurred 11
months after her marriage thereby the main
condition prescribed under Section 3048,
namely, within seven years of the marriage
was fulfilled.
G
(ii) The death of the deceased was not normal as
evidenced by the version of PW.1 postmortem
doctor, the postmortem certificate and also
Exhibit 'PG', the report of Chemical Examiner.
H (iii) The evidence of PWs.2 and 3 read along with
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 807
Exhibit 'PH' to 'PK' disclose that there was a A
demand for payment of cash of Rs.30,000/-
apart from a stereo set and a scooter.
(iv) According to PW.2, father of the deceased 3 to
4 days prior to the unfortunate death of the 8
deceased his daughter came to his house and
expressed her dire need for payment of
Rs.30,000/- as demanded by her in-laws and
that she was being harassed on that score.
(v) The evidence of PW.3 was to the effect that on C
the date of the death of the deceased, namely,
03.11.1987 he happened to witness the torture
meted out to the deceased at the hands of her
in-laws.
D
(vi) Though on behalf of the appellant and other
accused certain witnesses were examined by
way of defence, both the trial Court as well as
the Appellate Court have noted that nothing
concrete was brought out to show that the E
evidence led on the side by the prosecution
through PWs.1 to 3 were in any way
contradicted. [Para 17] [821-F-H; 822-A-E]
1.3. On behalf of the appellant, it was contended that
Exhibit 'PK' which was stated to have been recovered by F
PW.5, Sub-Inspector of Police, from the brassier of the
deceased was not proved to the satisfaction of the Court.
For the sake of argument even if such a contention can
be accepted and the said Exhibit 'PK' is eschewed from
consideration there were other exhibits such as Exhibits G
'PH' to 'PK' which were all letters written by the deceased
addressed to PW.2 her father which were written prior to
her death and were sent by post. It is not in dispute and
as noted by the trial Court, those exhibits bore the postal
stamp impressions with relevant dates mentioned H
808 SUPREME COURT REPORTS (2012) 11 S.C.R.
A therein. Though DW.3 a document expert was examined
to show that there was a variation in the hand-writing of
the deceased as between the admitted one and thost
found in Exhibits 'PH', 'PK' and 'PJ', he himself admitted
in the cross-examination that some variation in the hand-
B writing can occur with the passage of time after the
learning stage and also at the old age or due to clinical
or any disease or accident which affect the muscular
control of the person while writing a letter. To yet another
question, he also admitted that it was correct that the
c portion of the disputed signatures 'Q1' to 'Q3' which may
read as Darshana (name of the deceased) is similar to the
corresponding words of standard signature 'A1 '.
Therefore, it will be highly unsafe to rely upon the
evidence of DW.3 in order to exclude the letters said to
have been written by the deceased to her father. [Para 18]
0
[822-F-H; 823-A-C]
1.4. The trial Court having examined Exhibits 'PH' to
'PJ' found that the alleged harassment at the hands of the
in-laws of the deceased immediately before her death
E was true. Nothing was pointed out before this Court to
hold that the said conclusion was perverse or was there
any illegality or irregularity. PW.1, who conducted the
postmortem, stated in his evidence that as per his report
Exhibit 'PA' antemortem injuries and other abnormalities
F were found on the body of the deceased. In the cross-
examination, PW.3 stated that the mouth of the deceased
girl was swollen and there were other injuries on other
parts of her body. Along with Exhibit 'PF' the Chemical
Examiner covering letter Exhibit 'PG' made it clear that
G although no poison was found in the viscera, there were
causes or reasons for non-detection of poison such as
the poison having been excreted from the body,
detoxicated, metabolised by the system or the poison
being such a test for the same does not exist in view of
H countless number of poisons. He also opined "the
KASHMIR KAUR &ANR. v. STATE OF PUNJAB 809
circumstantial evidence goes a long way to prove the A
facts of the case regardless of the report indicating that
the no poison was found". "From postmortem findings
and police history it appears that death has occurred due
to some poison". [Paras 19, 20] [823-D-E-H; 824-A-8]
8
1.5. In Exhibits 'PH' and 'PJ' it was clearly mentioned
that the deceased was harassed from last night (prior to
the incident) and her miserable condition was created at
the instance of her mother-in-law, wife of her husband's
brother, the appellant and the brother himself, namely, C
second accused, who is no more. In Exhibit 'PJ' she
while referring to such harassment meted out to her by
her mother-in-law, brother-in-law and his wife also
mentioned about the demands made by them, namely,
cash, scooter and other articles. [Para 21] [824-C-D]
D
1.6. All the above factors clearly established the legal
requirements for an offence falling under Sections 3048
and 498A IPC with the aid of Section 1138 were
conclusively proved and the conviction and sentence
imposed, therefore, do not call for interference. [Para 22] E
[824-E]
K. Prema S. Rao and another v. Yad/a Srinivasa Rao
and others (2003) 1 sec 217: 2002 (3) Suppl. SCR 339;
Kaliyaperumal and another v. State of Tamil Nadu (2004) 9 F
SCC 157: 2003 (3) Suppl. SCR 1; Devita/ v. State of
Rajasthan (2007) 14 SCC 176: 2007 (11) SCR 219; Ashok
Kumar v. State of Haryana (2010) 12 SCC 350: 2010 (7) SCR
1119; Harjit Singh v. State of Punjab (2006) 1 SCC 463:
2005 (5) Suppl. SCR 629; Ram Badan Sharma v. State of
Bihar (2006) 10 sec 115: 2006 (4) Suppl. SCR 795 and G
Pathan Hussain Basha v. State of A.P. JT 2012 (7) SC 432
- relied on.
2. The appeal so far as appellant No.1 stands
dismissed. He is on bail. The bail bond stands cancelled H
810 SUPREME COURT REPORTS [2012) 11 S.C.R.
A and she shall be taken into custody forthwith to serve out
the remaining part of sentence, if any. The appeal so far
as appellant No.2 too stands dismissed as having
become infructuous even at the time it came to be filed.
Accordingly, the application for substitution also stands
B dismissed. [Paras 23, 24] [824-F-G]
Case Law Reference:
2002 (3) Suppl. SCR 339 relied on Para 10, 11
2003 (3) Sup!'l!. SCR 1 relied on Para 10, 12
c
2007 (11) SCR 219 relied on Para 10, 13
2010 (7) SCR 1119 relied on Para 10, 14,
15
D 2005 (5) Suppl. SCR 629 relied on Para 13
2006 (4) Suppl. SCR 795 relied on Para 13
JT 2012 (7) SC 432 relied on Para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E
No. 915-916 of 2008.
From the Judgment & Order dated 06.04.2006 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 502-SB of 1994 and dated 24.08.2005 in Criminal Misc.
F No. 36383 of 2005 in Criminal Appeal No. 502-SB of 1994.
R.K. Kapoor, Shweta Kapoor, Alka Sharma, Anis Ahmed
Khan for the Appellant.
Kuldip Singh, Mohit Mudgil for the Respondent.
G
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. The
appellants are aggrieved of the judgment of the Single Judge
of the High Court of Punjab and Haryana dated 06.04.2005.
H At the very outset it is relevant to mention that the second
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 811
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
appellant, namely, Lakha Singh also known as Lakhiwinder A
Singh s/o Gian Singh stated to have died on 03.12.2005 as
per the death certificate enclosed along with the special leave
petition papers and the application filed on 25.07.2006 in this
Court. Therefore, the special leave petition itself, which was
stated to have been filed on 25.07.2006 on behalf of Lakha B
Singh alias Lakhiwinder Singh, has become infructuous.
However, in the criminal miscellaneous petition for substitution
application, also filed on 25.07 .2006, the first appellant has
made a prayer to substitute her as the legal representative of
the deceased Lakha Singh and pursue his appeal as well in c
order to enable her to gel the monitory benefits from the
employer of the deceased Lakha Singh who was stated lo have
been employed in the Punjab Slate Electricity Board. In the
above-stated background we heard learned counsel for the
appellant as well as counsel for the Stale in these appeals.
D
2. The brief facts which are required to be stated are that
the deceased Darshana alias Darshan Kaur d/o Joginder
Singh - PW.2 was married lo one Ravail Singh about 11
months prior to the date of occurrence. According to PW.2 at
the time of marriage he gave sufficient dowry but Jagir Kaur, E
the mother-in-law of the deceased, and the accused were not
satisfied with the amount of dowry given in marriage. According
lo the prosecution, there was a demand for cash amount of
Rs.30,000/- apart from a stereo set and scooter by way of
dowry which the deceased Darshana was compelled to ask F
and get from her parental house.
3. Three days prior to the occurrence, the deceased was
staled to have gone to her parental house, met PW.2 and
requested him to arrange for the cash amount of Rs.30,000/- G
in order to fulfill the demand, when she stated to have also told
PW.2 that she was being repeatedly tortured at the instance
of the accused in her matrimonial home. PW.2 stated to have
promised his daughter that he would arrange for the money in
three to four days time after harvesting the crops and that she H
can return back to her matrimonial home.
812 SUPREME COURT REPORTS (2012) 11 S.C.R.
A 4. On 03.11.1987, PW.3 Jagir Singh stated to have
witnessed the torture meted out to the deceased Darshana at
the hands of the accused in the morning and in the evening he
came to know about the death of the deceased whose body
was lying in the Civil Hospital at Taran Taran. PW.3 stated to
B have met Joginder Singh (PW.2) at his village called Nandpur
and informed him about the torture meted out to his daughter
in the morning and the subsequent death in the evening.
Thereafter, PW.2 went to the hospital along with PW.3 and after
identifying the body of his daughter he lodged a complaint with
c the Police Statirm Jhabal which came to be registered as FIR
~;o.246/87 Exhibit PE/2 for offences under Section 3048 read
with 34 IPC as well as under Section 498A IPC.
5. The complaint was registered as against the appellant,
her husband Lakha Singh s/o of Gian Singh as well as Jagir
D Kaur alias Jagire, mother-in-law of the deceased, who in the
meantime passed away. PW.1 was the doctor who conducted
the postmortem issued Exhibit 'PA' the postmortem certificate
under Exhibit PA/1 PW.1 stated to have prepared a pictorial
diagram showing the seat of injuries. He also stated that
E stomach and its contents along with a portion of small intestine
with its contents, a portion of large intestine with its contents, a
portion of liver, spleen and kidney were handed over to police
along with letter dated 04.11.1987 addressed to Chemical
Examiner, Patiala in five Jars sealed with the seal bearing
F impression 'KS' for its report. The Chemical Examiner Reports
were marked as Exhibit 'PF' to Exhibit 'PG'.
6. PW.5, the Sub-Inspector of Police stated to have
recovered a letter from the brassier of the deceased which was
G marked as Exhibit 'PH'. There were other letters produced by
PW.2 said to have been written by the deceased addressed
to him which were marked as Exhibit 'PH' to 'PK'.
7. The trial Court after detailed consideration of the
evidence placed before it, both oral as well as documentary,
H found the appellant as well as her husband Lakha Singh guilty
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 813
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of the offences falling under Section 304B read along with 34 A
IPC as well as under Section 498A IPC. The trial Court after
reaching the said finding convicted them for the abovesaid
offences and imposed the sentence of seven years rigorous
imprisonment each for the offence under Section 304B IPC
and two years rigorous imprisonment for the offence under B
Section 498A IPC apart from a fine of Rs.1000/- each and in
default to undergo further rigorous imprisonment for three
months. The sentences were directed to run concurrently.
8. On the appeal preferred by the appellant as well as her C
husband having been rejected and the conviction and sentence
having been confirmed, the present appeals have been
preferred before us.
9. We heard Mr. R.K. Kapoor, learned counsel for"the
appellant and Mr. Kuldip Singh, learned counsel for the D
respondent-State. We also perused the judgment of the trial
Court, as well as, the High Court and the material records
placed before us. Before dealing with the facts involved in
these appeals, we feel it appropriate to state the requirement
of law in regard to offences falling under Sections 3048 and E
498A of IPC while convicting the accused for the said offences.
In this respect, it will be worthwhile to deal with some of the
earlier decisions of this Court where the legal principles in
regard to the abovesaid provisions have been dealt with and
the principles of law laid down therein. As we are concerned F
with Sections 304B and 498A IPC, the said provisions along
with Section 1138 of the Evidence Act are relevant. The same
are extracted hereinunder:
"3048. Dowry death.- (1) Where the death of a woman
is caused by any burns or bodily injury or occurs otherwise G
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 called "dowry H
814 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 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 the same meaning as in section 2 of
the Dowry Prohibition Act, 1961 (28 of 1961).
B
(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.
c 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
0 liable to fine.
Explanation.-For the purpose of this section, "cruelty''
means-
(a) any willful conduct which is of such a nature
E as is likely to derive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such
F
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 account of failure by her or any
person related to her to meet such demand.
G
1138. Presumption as to dowry death.-When the
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
H cruelty or harassment for, or in connection with, any
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 815
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
demand for dowry, the Court shall presume that such A
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)."
B
10. As regards the principles concerning the above
referred to provisions we wish to refer to the decisions reported
in K. Prema S. Rao and another V. Yadla Srinivasa Rao and
others - (2003) 1 SCC 217, Kaliyaperumal and another V.
State of Tamil Nadu - (2004) 9 SCC 157, Devi/a/ V. State of C
Rajasthan - (2007) 14 SCC 176, and Ashok Kumar V. State
of Haryana - (2010) 12 SCC 350.
11. In K. Prema S. Rao (supra) it has been held as under
in paragraph 16: o
" ...... To attract the provisions of Section 304-8 IPC, one
of the main ingredients of the offence which is required to
be established is that "soon before her death" she was
subjected to cruelty and harassment "in connection with the
demand for dowry"."...... E
12. In Ka/iyaperumal (supra) paragraph 5 is relevant for
our purpose which reads as under:
5. A conjoint reading of Section 113-B of the Evidence Act F
and Section 304-8 IPC shows that there must be material
to show that soon before her death the victim was
subjected to cruelty or harassment. The 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 G
otherwise than in normal circumstances". The expression
"soon before" is very relevant where Section 113-8 of the
Evidence Act and Section 304-8 IPC are pressed into
service. The prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment and
H
816 SUPREME COURT REPORTS [2012] 11 S.C.R.
A only in that case presumption operates. Evidence in that
regard has to be led in by the prosecution. "Soon before"
is a relative term and it would depend upon the
circumstances of each case and no straitjacket formula can
be laid down as to what would constitute a period of soon
B 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
113-B of the Evidence Act. The expression "soon before
c her death" used in the substantive Section 304-B IPC and
Section 113-B 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 the expression "soon before" used in Section
114 Illustration (a) of the Evidence Act is relevant. It lays
D
down that a court may presume that a man who is in the
possession of goods soon after the theft, is either the thief
who 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
E "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 normally imply that the interval should not be
much between the cruelty or harassment concerned and
F the death in question. There must be existence of a
proximate and life link between the effect of cruelty based
on dowry demand and the death concerned. If the alleged
incident of cruelty is remote in time and has become stale
enough not to disturb the mental equilibrium of the woman
G concerned, it would be of no consequence."
13. In Devi/a! (s.upra) the ingredients of the provisions of
Section 3048 as laid down in Harjit Singh V. State of Punjab
- (2006) 1 SCC 463 and Ram Badan Sharma V. State of
H
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 817
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Bihar - (2006) 10 SCC 115 have been clearly set out in A
paragraph 20 which reads as under:
"The question, as to what are the ingredients of the
provisions of Section 304-8 of the Penal Code is no
longer res integra. They are: (1) that the death of the 8
woman was caused by any burns or bodily injury or in
some circumstances which were not nonnal; (2) such death
occurs within 7 years from the date of her marriage; (3)
that the victim was 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 the C
demand of dowry; and (5) it is established that such cruelty
and harassment was made soon before her death. (See
Harjit Singh v. State of Punjab and Ram Badan Sharma
v. State of Bihar)."
D
14. In Ashok Kumar, to which one of us was a party
(Hon'ble Dr. Justice B.S. Chauhan), paragraphs 19, 20, 21 and
23 are relevant for our purpose which read as under:
"19. \'Ve have already referred to the provisions of Section E
304-8 of the Code and the most significant expression
used in the section is "soon before her death". In our view,
the expression "soon before her death" cannot be given a
restricted or a narrower meaning. They must be understood
in their plain language and with reference to their meaning F
in common parlance. These are the provisions relating to
human behaviour and, therefore, cannot be given such a
narrower meaning, which would defeat the very purpose
of the provisions of the Act. Of course, these are penal
provisions and must receive strict construction. But, even
the rule of strict construction requires that the provisions G
have to be read in conjunction with other relevant
provisions and scheme of the Act. Further, the
interpretation given should be one which would avoid
absurd results on the one hand and would further the object
and cause of the law so enacted on the other. H
818 SUPREME COURT REPORTS [2012) 11 S.C.R.
A 20. We are of the considered view that the concept of
reasonable time is the best criteria to be applied for
appreciation and examination of such cases. This Court
in Tarsem Singh v. State of Punjab, held that the legislative
object in providing such a radius of time by employing the
B words "soon before her death" is to emphasise the idea
that her death should, in all probabilities, has been the
aftermath of such cruelty or harassment. In other words,
there should be a reasonable, if not direct, nexus between
her death and the dowry-related cruelty or harassment
c inflicted on her.
21. Similar view was expressed by this Court in Yashoda
v. State of M.P., where this Court stated that determination
of the period would depend on the facts and circumstances
of a given case. However, the expression would normally
D imply that there has to be reasonable time gap between
the cruelty inflicted and the death in question. If this is so,
the legislature in its wisdom would have specified any
period which would attract the provisions of this section.
However, there must be existence of proximate link
E between the acts of cruelty along with the demand of dowry
and the death of the victim. For want of any specific period,
the concept of reasonable period would be applicable.
Thus, the cruelty, harassment and demand of dowry should
not be so ancient, whereafter, the couple and the family
F members have lived happily and that it would result in
abuse of the said protection. Such demand or harassment
may not strictly and squarely fall within the scope of these
provisions unless definite evidence was led to show to the
contrary. These matters, of course, will have to be
G examined on the facts and circumstances of a given case.
23. The Court cannot ignore one of the cardinal principles
of criminal jurisprudence that a suspect in the Indian law
is entitled to the protection of Article 20 of the Constitution
of India as well as has a presumption of innocence in his
H
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 819
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
favour. In other words, the rule of law requires a person to A
be innocent till proved guilty. The concept of deeming
fiction is hardly applicable to the criminal jurisprudence. In
contradistinction to this aspect, the legislature has applied
the concept of deeming fiction to the provisions of Section
304-B. Where other ingredients of Section 304-8 are B
satisfied, in that event, the husband or all relatives shall be
deemed to have caused her death. In other words, the
offence shall be deemed to have been committed by fiction
of law. Once the prosecution proves its case with regard
to the basic ingredients of Section 304-B, the Court will c
presume by deemed fiction of law that the husband or the
relatives complained of, has caused her death. Such a
presumption can be drawn by the Court keeping in view
the evidence produced by the prosecution in support of the
su,bstantive charge under Section 304-B of the Code.
D
15. The decision in Ashok Kumar (supra) was
subsequently followed in Pathan Hussain Basha V. State of
A.P. - JT 2012 (7) SC 432, to which again one of us was a
party (Hon'ble Mr. Justice Fakkir Mohamed Ibrahim Kalifulla).
E
16. From the above decisions the following principles can
be cu lied out:
(a) To attract the provisions of Section 3048 IPC the
main ingredient of the offence to be established is
that soon before the death of the deceased she F
was subjected to cruelty and harassment in
connection with the demand of dowry.
(b) The death of the deceased woman was caused by
any burn or bodily injury or some other circumstance G
which was not normal.
(c) Such death occurs within seven years from the date
of her marriage.
H
820 SUPREME COURT REPORTS [2012] 11 S.C.R.
A (d) That the victim was subjected to cruelty or
harassment by her husband or any relative of her
husband.
(e) Such cruelty or harassment should be for or in
connection with demand of dowry.
8
(f) It should be established that such cruelty and
harassment was made soon before her death.
(g) The expression (soon before) is a relative term and
c it would depend upon circumstances of each case
and no straightjacket formula can be laid down as
to what would constitute a period of soon before the
occurrence.
(h) II would be hazardous to indicate any fixed period
D 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
1138 of the Evidence Act.
E (i) Therefore, the expression "soon before" would
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 or life link between the effect of cruelty
F based on dowry demand and the concerned death.
In other words, it should not be remote in point of
time and thereby make it a stale one.
0) However, the expression "soon before" should not
be given a narrow meaning which would otherwise
G defeat the very purpose of the provisions of the Act
and should not lead to absurd results.
(k) Section 3048 is an exception to the cardinal
principles of criminal jurisprudence that a suspect .
H in the Indian Law is entitled to the protection of
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 821
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Article 20 of the Constitution, as well as, a A
presumption of innocence in his favour. The
concept of deeming fiction is hardly applicable to
criminal jurisprudence but in contradistinction to this
aspect of criminal law, the legislature applied the
concept of deeming fiction to the provisions of B
Section 3048.
(I) Such deeming fiction resulting in a presumption is,
however, a rebuttable presumption and the husband
and his relatives, can, by leading their defence C
prove that the ingredients of Section 3048 were not
satisfied.
(m) The specific significance to be attached is to the
time of the alleged cruelty and harassment to which
the victim was subjected to, the time of her death D
and whether the alleged demand of dowry was in
connection with the marriage. Once the said
ingredients were satisfied it will be called dowry
death and by deemed fiction of law the husband or
the relatives will be deemed to have committed that E
offence.
17. Keeping the above principles in mind, when we
examine the case on hand, we find the following uncontroverted
facts:
F
(i) The death of the deceased occurred 11 months
after her marriage thereby the main condition
prescribed under Section 3048, namely, within
seven years of the marriage was fulfilled.
G
(ii) The death of the deceased was not normal as
evidenced by the version of PW.1 postmortem
doctor, the postmortem certificate and also Exhibit
'PG', the report of Chemical Examiner.
(iii) The evidence of PWs.2 and 3 read along with H
822 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Exhibit 'PH' to 'PK' disclose that there was a
demand for payment of cash of Rs.30,000/- apart
from a stereo set and a scooter.
(iv) According to PW.2, father of the deceased 3 to 4
days prior to the unfortunate death of the deceased
B
his daughter came to his house and expressed her
dire need for payment of Rs.30,000/- as demanded
by her in-laws and that she was being harassed on
that score.
C (v) The evidence of PW.3 was to the effect that on the
date of the death of the deceased, namely,
03.11.1987 he happened to witness the torture
meted out to the deceased at the hands of her in-
laws.
D
(vi) Though on behalf of the appellant and other
accused certain witnesses were examined by way
of defence, both the trial Court as well as the
Appellate Court have noted that nothing concrete
was brought out to show that the evidence led on
E
the side by the prosecution through PWs.1 to 3
were in any way contradicted.
18. On behalf of the appellant, it was contended that Exhibit
'PK' which was stated to have been recovered by PW.5, Sub-
F Inspector of Police, from the brassier of the deceased was not
proved to the satisfaction of the Court. For the sake of argument
even if such a contention can be accepted and the said Exhibit
'PK' is eschewed from consideration there were other exhibits
such as Exhibits 'PH' to 'PK' which were all letters written by
G the deceased addressed to PW.2 her father which were written
prior to her death and were sent by post. It is not in dispute and
as noted by the trial Court, those exhibits bore the postal stamp
impressions with relevant dates mentioned therein. Though
DW.3 a document expert was examined to show that there was
H a variation in the hand-writing of the deceased as between the
KASHMIR KAUR & ANR. v. STATE OF PUNJAB 823
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
admitted one and those found in Exhibits 'PH', 'PK' and 'PJ', A
he himself admitted in the cross-examination that some
variation in the hand-writing can occur with the passage of time
after the learning stage and also at the old age or due to clinical
or any disease or accident which affect the muscular control of
the person while writing a letter. To yet another question, he also B
admitted that it was correct that the portion of the disputed
signatures 'Q1' to 'Q3' which may read as Darshana is similar
to the corresponding words of standard signature 'A 1'.
Therefore, it will be highly unsafe to rely upon the evidence of
DW.3 in order to exclude the letters said to have been written c
by the deceased to her father.
19. The trial Court having examined Exhibits 'PH' to 'PJ'
found that the alleged harassment at the hands of the in-laws
of the deceased immediately before her death was true. Before
us nothing was pointed out to hold that the said conclusion was D
perverse or was there any illegality or irregularity. The evidence
of PW.1 doctor, who conducted the postmortem, has stated in
his evidence that as per his report Exhibit 'PA' the following
antemortem injuries and other abnormalities were found on the
body of the deceased: E
"Six abrasions varying from 0.5 cm to 1 cm were present
on the left side of the cheek, 2 cm away from the angle of
the mouth. Larynx and trachea showed congestion and
blood stained froth was present. Right and left lungs were F
congested and frothy material was coming out of lung after
squeezing. Blood from the heart was sent for chemical
examination. Mouth pharynx and essofigus did no~ show
any abnormality. But blood stained froth was present.
Stomach and its contents were sent to the C/Examiner for G
the Chemical Examination"
20. In the cross-examination, PW.3 stated that the mouth
of the deceased girl was swollen and there were other injuries
on other parts of her body. Along with Exhibit 'PF' the Chemical
Examiner covering letter Exhibit 'PG' made it clear that H
824 SUPREME COURT REPORTS [2012] 11 S.C.R.
A although no poison was found in the viscera, there were causes
or reasons for non-detection of poison such as the poison
having been excreted from the body, detoxicated, matabolised
by the system or the poison being such as test for the same
do not exist in view of countless number of poisons. He also
8 opined "the circumstantial evidence goes a long way to prove
the facts of the case regardless of the report indicating that the
no poison was found". "From postmortem findings and police
history it appears that death has occurred due to some poison".
21. In Exhibits 'PH' and 'PJ' it was clearly mentioned that
C the deceased was harassed from last night, namely,
02. 11.1987 and her miserable condition was created at the
instance of her mother-in-law, wife of her husband's brother, the
appellant herein and the brother himself, namely, second
accused, who is no more. In Exhibit 'PJ' she while referring to
D such harassment meted out to her by her mother-in-law, brother-
in-law and his wife also mentioned about the demands made
by them, namely, cash, scooter and other articles.
22. All the above factors clearly established the legal
E requirements for an offence falling under Sections 3048 and
498A IPC with the aid of Section 1138 were conclusively
proved and the conviction and sentence imposed, therefore, do
not call for interference.
23. The appellant Kashmir Kaur is on bail. The bail bond
F stands cancelled and she shall be taken into custody forthwith
to serve out the remaining part of sentence, if any. The appeal
so far as appellant No.1 is concerned stands dismissed.
24. The appeal so far as appellant No.2 i.e. accused
Lakha Singh @ Lakhiwinder Singh is concerned, as held by
G us in the opening part of this judgment stands dismissed as
having become infructuous even at the time it came to be filed.
Accordingly, the application for substitution also stands
dismissed.
H 8.8.8. Appeals dismissed.
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