SHER SINGH @ PARTAPAversusSTATE OF HARYANA

                     [2015] 1 S.C.R. 29


                SHER SINGH @ PARTAPA                              A
                              v.
                   STATE OF HARYANA
            (Criminal Appeal No. 1592 of 2011)
                    JANUARY 09, 2015
                                                                  B
    [VIKRt.MAJIT SEN AND KURIAN JOSEPH, JJ.]

     Penal Code, 1860 - ss. 3048 and 498A - Dowry death
- Prosecution case that victim-wife committed suicide due to
harassment for dowry by her husband and in-laws within one        C
year of marriage - Two months prior to her death she informed
her brothers of cruelty connected with dowry demand -
Conviction and sentence of husband, brother-in-law and
father-in-law of the victim u/ss. 3048 and 498A by the trial
court - High Court acquitting the brother-in-law and father-in-   o
law of the victim, however, upholding the conviction and
sentence of the husband - On appeal, held: Once the
concomitants of dowry death are established or shown or
proved by the prosecution, even by preponderance of
possibility, the presumption of innocence is replaced by an       E
assumption of guilt of the accused, whereupon a heavy burden
is cast on the shoulders of the accused to displace the
deemed culpability beyond reasonable doubt, and not merely
by preponderance of evidence Prosecution has not shown!
presented and or proved even by preponderance of                  F
probabilities that the deceased had been treated with cruelty
emanating from or founded on dowry demands - Ingestion of
aluminium phosphate may have been accidental - Due to the
insufficiency or the unsatisfactory nature of the facts or
circumstances shown by the prosecution, burden of proving
his innocence not shifted to the appellant - Thus, order of       G
conviction and sentence of the appellant set aside.
    Allowing the appeal, the Court
    HELD: 1.1. Section 1138 Evidence Act and Section
                         29                                       H
    30      SUPREME COURT REPORTS             [2015] 1 S.C.R.


A   3048 IPC were introduced into their respective statutes
    simultaneously and, therefore, it must ordinarily be
    assumed that Parliament intentionally used the word
    'deemed' in Section 3048 to distinguish this provision
    from the others. In actuality, however, it is well nigh
B   impossible to give a sensible and legally acceptable
    meaning to these provisions, unless the word 'shown' is
    used as synonymous to 'prove' and the word 'presume'
    as freely interchangeable with the word 'deemed'. It is
    imperative to construe the word 'shown' in Section 3048
c   IPC as to, in fact, connote 'prove'. The word 'soon' finds
    place in Section 3048; but preference would be to
    interpret its use not in terms of days or months or years,
    but as necessarily indicating that the demand for dowry
    should not be stale or an aberration of the past, but
0   should be the continuing cause for the death under
    Section 3048 or the suicide under Section 306 IPC. Once
    the presence of these concomitants are established or
    shown or proved by the prosecution, even by
    preponderance of possibility, the initial presumption of
E   innocence is replaced by an assumption of guilt of the
    accused, thereupon transferring the heavy burden of
    proof upon him and requiring him to produce evidence
    dislodging his guilt, beyond reasonable doubt. [Para 14)
    [45-F, G; 46-D; F-H]
      1.2. The burden of proof weighs on the husband to
F
  prove his innocence by dislodging his deemed
  culpability, and that this has to be preceded only by the
  prosecution proving the presence of three factors, viz. (i)
  the death of a woman in abnormal circumstances (ii)
G within seven years of her marriage, and (iii) that the death
  had a live link with cruelty connected with any demand
  of dowry. The other facet is that the husband has indeed
  a heavy burden cast on his shoulders in that his deemed
  culpability would have to be displaced and overturned
  beyond reasonable doubt. Section' 3048 does not
H require the accused to give evidence against !limself but
SHER SINGH @ PARTAPA v. STATE OF HARYANA              31


casts the onerous burden to dislodge his deemed guilt A
beyond reasonable doubt. It would not be appropriate to
lessen the husband's onus to that of preponderance of
probability as that would annihilate the deemed guilt
expressed in Section 3048, and such a curial
interpretation would defeat and neutralise the intentions B
and purposes of Parliament. All that needs to be said is
that if the husband proves facts which portray, beyond
reasonable doubt, that he could not have caused the
death of his wife by burns or bodily injury or not involved
in any manner in her death in abnormal circumstances, c
he would not be culpable u/s. 3048.[Para 17] [49-E-G 50-
8-C, E-F]
     2. The fundamental and vital question that the Court
has to ask itself and find a solid answer to, is whether this
evidence even preponderantly proves that the appellant o
had treated the deceased with cruelty connected with
dowry demands. It is only if the answer is in the
affirmative will the Court have to weigh the evidence
produced by the appellant to discharge beyond
reasonable doubt, the assumption of his deemed guilt. E
The deceased was pregnant at the time of her suicide
and that only extraordinary and overwhelming factors
would have driven her to take her life along with that of
her unborn child. The fact remains that she did so. What
motivated or compelled her to take this extreme and F
horrific step will remain a mystery, as this Court is not
satisfied that the prosecution has proved or even shown
that she was treated with such cruelty, connected with
dowry demands, has led her to commit suicide. In the
normal course dowry demands are articulated when the
marriage is agreed upon and is certainly reiterated at the G
time when it is performed and such demands continue
into a couple of years of matrimony. In normal course, if
a woman is being tortured and harassed, she would not
remain reticent of this state of affairs and would certainly
repeatedly inform her family. This is specially so before H
    32      SUPREME COURT REPORTS              [2015] 1 S.C.R.


A   she takes the extreme step of taking her own life. There
    are inconsistencies and contradictions between the
    statements of PW4 and PW7 with regard to demand of
    dowry, the panchayat and the presence of and
    knowledge of 'GS'. It is for these reasons the prosecution
B   has not shown/presented and or proved even by
    preponderance of probabilities that the deceased had
    been treated with cruelty emanating from or founded on
    dowry demands. It is in the realm of a possibility that the
    ingestion of aluminium phosphate may have been
c   accidental. The accused in his examination u/s. 313
    Cr.P.C. proffered details of his defence. This is not a case
    where he merely denied all the questions put by the
    Court to him. Because of the insufficiency or the
    unsatisfactory nature of the facts or circumstances
0   shown by the prosecution, the burden of proving his
    innocence has not shifted to the appellant. The order of
    the High Court convicting and punishing the appellant is
    set aside. [Paras 22, 23] [53-B-H; 54-B-C]
         Narayanamurthy v. State of Karnataka 2008 (8) SCR 403
E   : (2008) 16 SCC 512; Durga Prasad v. State of Madhya
    Pradesh 2010 (7) SCR 104 : (2010) 9 SCC 73; State of
    Punjab v. Iqbal Singh 1991 (2) SCR 790 : 1991 (3) SCC 1;
    Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7)
    SCR 340 :2013 (7) SCC 256; Pathan Hussain Basha v. State
F   of Andhra Pradesh 2012 (7) SCR 290 : (2012) 8 SCC 594;
    State of Travancore-Cochin v. Shanmugha Vilas Cashewnut
    Factory 1954 SCR 53: AIR 1953 SC 333; State of Tamil
    Nadu v. Arooran Sugars Limited 1996 (8) Suppl. SCR 193:
    (1997) 1 SCC 326; Mir Mohammad Omar and Subramaniam
G   v. State of Tamil Nadu (2009) 14 SCC 415; Ashok Kumar v.
    State of Haryana 2010 (7) SCR 1119 : 2010 (12) SCC 350;
    Na/lam Veera Stayanandam v. Public Prosecutor 2004 (10)
    SCC 769; Mithu vs. State of Punjab 1983 (2) SCR 690 : AIR
    1983 SC 473; P.N. Krishna Lal v. Government of Kera/a 1994
H   (5) Suppl. SCR 526:1995 Supp (2) SCC 187 - referred to.
 SHER SINGH @ PARTAPA v. STATE OF HARYANA                   33


     Concise Oxford Dictionary; The Black's Law Dictionary       A
(5th Edition) - referred to.
                  Case Law Reference :
    2008 (8) SCR 403              Referred to      Para4
    2010 (7) SCR 104              Referred to      Para 4        8
    1991 (2) SCR 790              Referred to      Para 10
    2013 (7) SCR 340              Referred to      Para 10
    2012 (7) SCR 290              Referred to      Para 11
    1954 SCR 53                   Referred to      Para 14       c
    1996 (8) Suppl. SCR 193 Referred to            Para 14
    (2009) 14 sec 415
                                      .
                                  Referred to      Para 15
    2010 (7) SCR 1119             Referred to      Para 16
    2004 c1 O) sec 769            Referred to      Para 16       D
    1983 (2) SCR 690              Referred to      Para 17
    1994 (5) Suppl. SCR 526       Referred to      Para 17
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1592 of 2011.
                                                                 E
    From the Judgment and Order dated 16.12.2010 of Single
Judge of High Court of Punjab and Haryana in Criminal Appeal
No. 894-SB of 2000.
    Ankur Mittal for the Appellant.
    Rao Ranjit for the Respondent.                               F
    The Judgment of the Court was delivered by
    VIKRAMAJIT SEN, J. 1. This Appeal has been filed
against the Judgment dated 16.12.2010 passed by the learned
Single Judge of the High Court of Punjab and Haryana             G
dismissing the appeal and affirming the conviction and
sentence passed against the Appellant by the Trial Court under
Sections 3048 and 498A of the Indian Penal Code. The
marriage between the deceased, Harjinder Kaur and the
accused-Appellant took place on 22.2.1997. The case of the       H
    34       SUPREME COURT REPORTS              [2015) 1 S.C.R.


A prosecution is that two months prior to her death on one of her
  visits to her parental home, the deceased informed her two
  brothers of cruelty connected with dowry demands meted out
  to her by her husband and his family members. They, thereafter,
  conveyed this information to their uncle-Complainant, Angrej
B Singh viz. that the accused and his family have been harassing
  her with a demand for a motorcycle and a fridge. The
  Complainant advised her to return to her matrimonial house with
  the assurance that a motorcycle and a fridge would be arranged·
  upon the marriage of her brothers. On 7.2.1998, one Rajwant
c Singh informed the Complainant that the deceased had
  committed suicide by consuming some poisonous substance
  at her matrimonial house in village Danoli. The Complainant,
  along with the brothers of the deceased and other members of
  the village, rushed to the matrimonial house of the deceased
0 and after confirming her death, lodged an FIR on the next day
  i.e., on 8.2.1998.
       2. In all, four accused p.ersons, namely, Appellant/Sher
  Singh (husband), Devinder Singh (brother-in-law), Jarnail Singh
  (father-in-law), and Sukhvinder Kaur (mother-in-law) were tried
E by the learned Sessions Judge, Kamal under Sections 3048
  and 498A IPC. After considering the material on record the
  learned Sessions Judge had convicted all the accused and.
  sentenced them to undergo rigorous imprisonment for seven
  years under Section 3048; and to undergo rigorous
F imprisonment for three years and to pay a fine of Rs.5,000/-
  and, in default of payment of such fine, to further undergo
  rigorous imprisonment for a period of six months under Section
  498A.
       3. Two separate appeals were filed before the High Court
G of Punjab and Haryana at Chandigarh, one by Devinder Singh
  (brother-in-law) along with Jarnail Singh (father-in-law) and
  another by the Appellant herein. The High Court allowed the
  appeal filed by Devinder Singh and Jarnail Singh and acquitted
  them with an observation that the prosecution has failed to
H
 SHER SINGH @ PARTAPA v. STATE OF HARYANA                     35
            [VIKRAMAJITSEN, J.]
prove any torture committed by them and, therefore, Sections         A
3048 and 498A IPC were not attracted. Quite palpably, unlike
the Trial Court, the High Court construed even Section 3048
requires the prosecution to 'prove' beyond reasonable doubt
in contradistinction to 'show' the participative role of the
husband's relatives as a prelude to the deemed guilt kicking         8
in. It was also observed by the High Court that in such cases
there is a   tendency of roping in all the family members
disregarding the fact that they resided separately. However, the
Appeal filed by the Appellant was dismissed holding that it was
for the accused/Appellant to explain that the unnatural death of     C
his wife Harjinder Kaur was not due to cruelty meted out to her
 in the matrimonial home and that he has failed in doing so.

     4. Learned Counsel appearing on behalf of the Appellant
has submitted that the conviction of the Appellant is liable to
be set aside as there is a specific finding of the learned           D
Sessions Court that there is no positive evidence on record to
the effect that the accused persons ever raised a demand for
a motorcycle and a fridge and that both the Courts below have
failed to fully appreciate the inconsistencies in the depositions
of PWs 4 and 7, which could not be relied upon as both were          E
interested witnesses. It is further submitted that the High Court,
on same set of pleadings and evidence, was not justified in
acquitting the other accused persons, namely, Devinder Singh
(brother-in-law) and Jarnail Singh (father-in-law), while
convicting the Appellant. In support of this argument, learned       F
Counsel for the Appellant has relied on the decision of this
Court in Narayanamurthy v. State of Karnataka (2008) 16
sec 512. It is also contended that the prosecution has not
established that soon before her death, the deceased had been
subjected to any cruelty or harassment in connection with any        G
demand for dowry. Support has been drawn from Durga
Prasad v. State of Madhya Pradesh (2010) 9 SCC 73.

     5. Out the outset we shall briefly analyse the cauldron of
legislation passed by Parliament on the subject which we are
                                                                     H
    36       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A presently engaged with. Confronted with the pestilential
  proliferation of incidents of married women being put to death
  because of avaricious and insatiable dowry demands, and/ or
  of brides being driven to take their own lives because of cruelty
  meted out to them by their husband and his family also because
s of dowry expectations, Parliament enacted the Dowry
  Prohibition Act, 1961 (for short 'the Dowry Act') in an
  endeavour to eradicate the social evil of giving and taking of
  dowry. Section 2 thereof defines 'dowry' as including any
  property or valuable security given or agreed to be given by one
C party to the other party around the time of marriage. Section 3
  makes it punishable to give or take or abet the giving or taking
  of dowry; the punishment for the offence being not less than five
  years, and with a fine of Rs.15,000/- or the amount of the value
  of such dowry, whichever is more. Sub-section (2) thereof
D understandably makes an exclusion in respect of presents given
  at the time of marriage provided they are of a customary nature
  and the value thereof is not excessive having regard to the
  financial status of the concerned parties. This Section also
  mandates the drawing up of a list of presents received in
  contemplation of marriage. Section 4 makes it punishable even
E to demand dowry and if any agreement is entered into for the
  giving or taking of dowry, Section 5 makes it void. Section 6
  clarifies that where any dowry is received by any person other
  than the woman in connection with whose marriage it is given,
  it must be transferred to her within three months of marriage
F or receipt of the dowry. The passing of this statute, however,
  did not eradicate the scourge of dowry demands, resulting in
  Parliament devoting its attention yet again to what was required
  to free society of this pernicious practice.

G      6. As is evident from a perusal of the Statement of Objects
  and Reasons to the Criminal Law (Second Amendment) Act,
  1983 [Act 46 of 1983], Parliament continued to be concerned
  with the increasing number of dowry deaths. By this legislation
  Chapter XX A was introduced into the Indian Penal Code (IPC)
H containing the solitary Section 498A, in order to "deal effectively
SHER SINGH @ PARTAPA v. STATE OF HARYANA                       37
           [VIKRAMAJIT SEN, J.]
not only with cases of dowry deaths, but also cases of cruelty A
to married women by their in-laws." Conspicuously, this Section
does not employ the word 'dowry' at all. In essence, the                '
amendment makes matrimonial cruelty to the wife punishable
with imprisonment for a term which may extend to three years
together with fine. The Explanation to Section 498A defines B
'cruelty' in Clause (a} to the Explanation to first mean wilful
conduct as is likely to drive the woman to commit suicide or to
cause grave injury or danger to her life. Since there is no allusion
to dowry it converts cruelty, which would ordinarily entitle the
wife to seek a dissolution of her marriage, into a criminal act. c
 Parliament rightly restricted the subject offence to only cruelty
perpetuated on women since their emancipation, in meaningful
terms, largely remains a mirage. One can only optimistically
 hope that the increasing literacy amongst females, as also
 amendments in Hindu Law granting a daughter a share in her
                                                                      0
 father's estate, will sooner than later put an end to this malaise.
 As we are not concerned in this Appeal with events falling within
 the ambit of Clause (a) of the Explanation, we shall desist from
 recording any further reflection on the sweep and intent and
 possible incongruities contained therein as such an exercise
 on our part would avoidably add to the bludgeoning burden of E
 obiter dicta, which invariably causes confusion. Secondly,
 broadly stated, Clause (b) to the Explanation of Section 498A
 IPC, postulates harassment meted out to the woman with a view
 to coercing her or her relatives to meet any unlawful demand
 for any property or valuable security. Although this Clause does F
 not employ the word 'dowry', it is apparent that its object is to
 combat this odious societal excrescence. Act 46 of 1983
 simultaneously incorporated changes in Section 174(3) of the
 Cr.P.C. pertaining to the suicide or death of a woman within
 seven years of her marriage; it mandated the examination by G
 the nearest Civil Surgeon of the body of the unfortunate woman.
  In addition thereto, Section 113A w~s introduced into the Indian
 Evidence Act, 1872. [Although not relevant to the present
 context, it is poignant that even though Section 113 was under
 its active scrutiny, Parliament did not think it necessary to excise H
    38        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   the existing and entirely irrelevant Section 113 which speaks
    of the cession of 'British' territory to any 'Native State']. Section
    113A, introduced into the Evidence Act by Clause 7 of Act 46
    of 1983, specifies that when the question is whether the
    commission of suicide by a woman had been abetted by her
B   husband or his relative and it is shown that she has committed
    suicide within a period of seven years from the date of her
    marriage and that her husband or such relative of her husband
    had subjected her to cruelty, the Court may presume, having
    regard to all the other circumstances of the case, that such ·
c   suicide had been abetted by her husband or by relatives of her
    husband.

          7. Within the short span of three years Parliament realized
    the necessity to make the law more stringent and effective by
    introducing amendments to the Dowry Act, as well as the IPC
D   by enacting Act 43 of 1986. These amendments, inter alia,
    made the offences dealt with in the Dowry Act cognizable for
    certain purposes and also made them non-bailable as well as
    non-compoundable. By the introduction of Section BA of the
    Dowry Act the burden of proof was reversed in respect of
E   prosecutions for taking or abetting the taking or demanding of
    any dowry by making the concerned person responsible for
    proving that he had not committed any such offence.
    Contemporaneously Section 304B was inserted into the IPC.
    The newly added Section stipulates that where the death of a
F   woman is caused 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
G   for dowry, such death shall be called "dowry death", and such
    husband or relative shall be deemed to have caused her death.
    Sub-section (2) makes this offence punishable with
    imprisonment for a term which shall not be less than seven
    years and which may extend to imprisonment for life. Section
    113B was further incorporated into the Evidence Act; [yet again
H
 SHER SINGH @ PARTAPA v. STATE OF HARYANA                         39
            [VIKRAMAJIT SEN, J.]
ignoring the futility, if not ignominy, of retaining the withered       A
appendage in the form of the existing Section 113, and further
perpetuating an anachronism.] Be that as may be, the newly
introduced Section 1138 states that when the question is
whether a person has committed the death of a married woman
and it is shown that soon before her death such woman had               B
been subjected by such person to cruelty or harassment or in
connection with any demand for dowry, the Court shall presume
that such person has caused dowry death. The Explanation
harks back to the simultaneously added Section 3048 of the
IPC for the definition of dowry death, clarifying thereby that the      c
person alluded to in this Section is her husband or any relative
of her husband. It is noteworthy that whilst Section 113A of the
Evidence Act reposes discretion in the Court to draw a
presumption so far as the husband's abetment in his wife's
suicide, Parliament has mandated the Court to draw at least
                                                                        0
an adverse inference under Section 1138 in the event of a
dowry death. It seems to us that where a wife is driven to the
 extreme step of suicide it would be reasonable to assume an
 active role of her husband, rather than leaving it to the discretion
 of the Court.
                                                                        E
     8. The legal regime pertaining to the death of a woman
within seven years of her marriage thus has numerous features,
inter alia:

            .(i) the meaning of "dowry" is as placed in Section         F
             2 of the Dowry Prohibition Act.

             (ii) dowry death stands defined for all purposes in
             Section 3048 of the IPC. It does exclude death in
             normal circumstances.
                                                                        G
             (iii) If death is a result of burns or bodily injury, or
             otherwise than under normal circumstances, and it
             occurs within seven years of the marriage and, it
             is 'shown' in contradistinction to 'proved' that soon
             before her death she was subjected to cruelty or           H
    40   SUPREME COURT REPORTS              [2015) 1 S.C.R.


A         harassment by her husband. or his relatives, and the
          cruelty or harassment is connected with a demand
          of dowry, it shall be a dowry death, and the husband
          or relative shall be deemed to have caused her
          death.
8
          (iv) To borrow from Preventive Detention
          jurisprudence - there must be a live link between
          the cruelty emanating from.a dowry demand and the
          death of a young married woman, as is sought to
          be indicated by the words "soon befOre her death",
c         to bring Section 3048 into operation; the live link
          will obviously be broken if the said cruelty does not
          persist in proximity to the untimely and abnormal
          death. It cannot be confined in terms of time; the
          query of this Court in the context of condonation of
D         delay in filing an appeal - why not minutes and
          second - remains apposite.

          (v) the deceased woman's body has to be
          forwarded for examination by the nearest Civil
E         Surgeon.

          (vi) once the elements itemised in (iii) above are
          shown to exist the husband or relative shall be
          deemed to have caused her death.
F         (vii) the consequences and ramifications of this
          'deeming' will be that the prosecution does not
          have to prove anything more, and it is on the
          husband or his concerned relative that the burden
          of proof shifts as adumbrated in Section 1138,
G         which finds place in Chapter VII of the Evidence Act.
          This Chapter first covers 'burden of proof and then
          "presumption", both being constant bed-fellows. In
          the present context the deeming or presumption of
          responsibility of death are synonymous.
H
 SHER SINGH@ PARTAPA v. STATE OF HARYANA                      41
           [VIKRAMAJIT SEN, J.]
     9. Death can be accidental, suicidal or homicidal. The first    A
type is a tragedy and no criminal complexion is conjured up,
unless statutorily so devised, as in Section 304A; but even there
the culpable act is that of the person actually causing the death.
It seems to us that Section 3048 of the IPC, inasmuch as it
also takes within its contemplation "the death of a woman . . . ..   B
otherwise than under normal circumstances", endeavours to
cover murders masquerading as accidents. Justifiably, the
suicidal death of a married woman who was meted out with
cruelty by her husband, where her demise occurred within seven
years of marriage in connection with a dowry demand should           c
lead to prosecution and punishment under Sections 3048 and/
or 306 of the IPC. However, if the perfidious harassment and
cruelty by the husband is conclusively proved by him to have
had no causal connection with his cruel behaviour based on a
dowry demand, these provisions are not attracted as held in          0
Bhagwan Das v. Karter Singh (2007) 11 SCC 205, although
some reservation may remain regarding the reach of Section
306.

      10. It is already empirically evident that the prosecution,
ubiquitously and in dereliction of duty, in the case of an E
abnormal death if a young bride confines its charges tcf Section
3048 because the obligation to provide proof becomes least
burdensome for it; this is the significance that attaches to a
deeming provision. But, in any death other than in normal
circumstances, we see no justification for not citing either F
Section 302 or Section 306, as the circumstances of the case
call for. Otherwise, the death would logically fall in the category
of an accidental one. It is not sufficient to include only Section
498A as the punishment is relatively light. Homicidal death is
chargeable and punishable under Sections 302 and 3048 if G
circumstances prevail triggering these provisions. This Court
has repeatedly reiterated this position, including in State of
Punjab v. Iqbal Singh, 1991 (3) SCC 1 and quite recently in
Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7) SCC
256.                                                                H
    42       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A       .11. Some doubts remain on the aspect of presumption of
    innocence, deemed culpability-and burden of proof. One of our
    Learned Brothers has in Pathan Hussain Basha v. State of
    Andhra Pradesh (2012) 8 SCC 594, after extensively
    extracting from the previous judgment authored by him (but
B   without indicating so) expressed two opinions - (a) that Article.
    20 of the Constitution of India contains a presumption of
    innocence in favour of a suspect and, (b) that the concept of
    deeming fiction is hardly applicable to criminal jurisprudence.
    The logical consequence of both these conclusions would lead
c to the striking down of Section BA of the Dowry Act, Section"'
    1138 of the Evidence Act, and possibly Section 3048 of the
    IPC, but neither decision does so. So far as the first conclusion
    is concerned, suffice it to reproduce Article 20 of the
  · Constitution:
D        20. Protection in respect of conviction for offences.-
         (1) No person shall be convicted of any offence except for
         violation of a law in force at the time of the commission of
         the act charged as an offence, nor be subjected to a
         penalty greater than that which might have been inflicted
E        under the law in force at the time of the commission of the
         offence.

         (2) No person shall be prosecuted and punished for the
         same offence more than once.
F        (3) No person accused of any offence shall be compelled
         to be a witness against himself.

          Even though there may not be any Constitutional
    protection to the concept of presumption of innocence, this is
G   so deeply ingrained in all Common Law legal systems so as
    to render it ineradicable even in India, such that the departure
    or deviation from this presumption demands statutory sanction.
    This is what the trilogy of dowry legislation has endeavoured
    to ordain.
H
  SHER SINGH @ PARTAPA v. STATE OF HARYANA                  43
             [VIKRAMAJIT SEN, J.]

       12. In our opinion, it is beyond cavil that where the same A
 word is used in a section and/or in sundry segments of a
 statute, it should be attributed the same meaning, unless there
 are compelling reasons to do otherwise. The obverse is where
 different words are employed in close proximity, or in the same
 section, or in the same enactment, the assumption IT)USt be that B
 the legislature intended them to depict disparate situations, and
 delineate dissimilar and diverse ramifications. Ergo, ordinarily
 Parliament could not have proposed to ordain thaf the
 prosecution should "prove" the existence of a vital sequence of
 facts, despite having employed the word "shown" in Section c
 304B. The question is whether these two words can be
 construed as synonymous. It seems to us that if the prosecution
 is required to prove, which always means beyond reasonable
 doubt, that a dowry death has been committed, there is a risk
 that the purpose pqstulated in the provision may be reduced D
 to a cipher. This method of statutory interpretation has
 consistently been disapproved and deprecated except in
 exceptional instances where the syntax permits reading down
 or reading up of some words of the subject provisions.

     · 13. In Section 113A of the Evidence Act Parliament has, E
  in the case of a wife's suicide, "presumed" the guilt of the
  husband and the members of his family. Significantly, in Section
  113B which pointedly refers to dowry deaths, Parliament has
  again employed the word "presume". However, in substantially
  similar circumstances, in the event of a w.ife's unnat~al death, F
  Parliament has in Section 304B "deemed" the g ilt of the
  husband and the members of his family. The Conci e Oxford
. Dictionary defines the word "presume" as: supposed t be true,
  take for granted; whereas "deem" as: regard, con~ider; and
  whereas "show" as: point out and prove. The Black's Law G
  Dictionary (5th Edition) defines the word "show" as- to make
  apparent or clear by the evidence, to prove; "deemed" as- to
  hold, consider, adjudge, believe, condemn, determine,
  construed as if true; "presume" as- to believe or accept on
  probable evidence; and "Presumption", in Black's, "is a rule of H
    44                SUPREME COURT REPORTS           [2015] 1 S.C.R.


A   law, statutory or judicial, by which finding of a basic fact gives
    rise to existence of presumed fact, until presumption is
    rebutted." The Concise Dictionary of Law, Oxford Paperbacks
    has this comprehensive yet succinct definition of burden of proof
    which is worthy of reproduction:
B
         "Burden of Proof: The duty of a party to litigation to prove
         a fact or facts in issue. Generally the burden of proof falls
         upon the party who substantially asserts the truth of a
         particular fact (the prosecution or the plaintiff). A distinction
         is drawn between the persuasive (or legal) burden, which
c        is carried by the party who as a matter of law will lose the
         case if he fails to prove the fact in issue; and the evidential
         burden (burden of adducing evidence or burden of going
         forward}, which is the duty of showing that there is sufficient
         evidence to raise an issue fit for the consideration of the
D        trier of fact as to the existence or non-existence of a fact
         in issue.

         The normal rule is that a defendant is presumed to be
         innocent until he is proved guilty; it is therefore the duty of
E        the prosecution to prove its case by establishing both the
         actus reus of the crime and the mens rea. It must first
         satisfy the evidential burden to show that its allegations
         have something to support them. If it cannot satisfy this
         burden, the defence may submit or the judge may direct
F        that there is no case to answer, and the judge must direct
         the jury to acquit. The prosecution may sometimes rely on
         presumptions of fact to satisfy the evidential burden of
         proof (e.g. the fact that a woman was subjected to violence
         during sexual intercourse will normally raise a presumption
         to support a charge of rape and prove that she did not
G
         consent). If, however, the prosecution has established a
         ba!;iS for its case, it must then continue to satisfy the
         persuasive burden by proving its case beyond reasonable
         doubt (see proof beyond reasonable doubt). It is the duty
         of the judge to tell the jury clearly that the prosecution must
H


          ....   't
 SHER SINGH@ PARTAPA v. STATE OF HARYANA                        45
           [VIKRAMAJIT SEN, J.]
    prove its case and that it must prove it beyond reasonable         A
    doubt; if he does not give this clear direction, the
    defendant is entitled to be acquitted.

    There are some exceptions to the normal rule that the
    burden of proof is upon the prosecution. The main                  8
    exceptions are as follows. (1) When the defendant admits
    the elements of the crime (the actus reus and mens rea)
    but pleads a special defence, the evidential burden is upon
    him to prove his defence. This may occur, the example, in
    a prosecution for murder ill which the defendant raises a          C
    defence of self-defence. (2) When the defendant pleads
    automatism, the evidential burden is upon him. (3) When
    the defendant pleads insanity, both the evi(Jential and
    persuasive burden rest upon him. In this case,'.however, it
    is sufficient if he proves his case on a balance of
    probabilities (i.e. he must persuade the jury that it is more      D
    likely that he is telling the truth than not). (4) In some cases
    statute expressly places a persuasive burden on the
    defendant; for example, a person who carries an offensive
    weapon in public is guilty of an offence unless he proves
    that he had lawful authority or a reasonable excuse for            E
    carrying it".

      14. As is already noted above, Section 1138 of the
Evidence Act and-Section 3048 of the IPC were introduced into
their respective statutes sim11ltaneously and, therefore, it must      F
ordinarily be assumed that Parliament intentionally used the
word 'deemed' in Section 3048 to distinguish this provision
from the others. In actuality, however, it is well nigh impossible
to give a sensible and legally acceptable meaning to these
provisions, unless the word 'shown' is used as synonymous to           G
'prove' and the word 'presume' as freely interchangeable with
the word 'deemed'. In the realm of civil and fiscal law, it is not
difficult to import the ordinary meaning of the word 'deem' to
denote a set of circumstances which call to be construed
contrary to what they actually are. In criminal legislation,
                                                                       H
    46        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A however, it is unpalatable to adopt this approach by rote. We
  have the high authority of the Constitution Bench of this Court
  both in State of Travancore-Cochin v. Shanmugha Vilas·
  Cashewnut Factory AIR 1953 SC 333 and State of Tamil Nadu
  v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the
B Court to ascertain the purpose behind the statutory fiction
  brought about by the use of the word 'deemed' so as to give
  full effect to the legislation and carry it to its logical conclusion.
  We may add that it is generally posited that there are rebuttable
  as well as irrebuttable presumptions, the latter oftentimes
c assuming an artificiality as actuality by means of a deeming
  provision. It is abhorrent to criminal jurisprudence to adjudicate
  a person guilty of an offence even though he had neither
  intention to commit it nor active participation in its commission.
  It is after deep cogitation that we consider it imperative to
0 construe   the word 'shown' in Section 3048 of the IPC as to, in
  fact, connote 'prove'. In other words, it is for the prosecution to
  prove that a 'dowry death' has occurred, namely, (i) that the
  death of a woman has been caused in abnormal circumstances
  by her having been burned or having been bodily injured, (ii)
E within seven years of a marriage, (iii) and that she was
  subjected to cruelty or harassment by her husband or any
  relative of her husband, (iv) in connection with any demand for
  dowry and (v) that the cruelty or harassment meted out to her
  continued to have a causal connection or a live link with the
  demand of dowry. We are aware that the word 'soon' finds
F place in Section 3048; but we would prefer to interpret its use
  not in terms of days or months or years, but as necessarily
  indicating that the demand for dowry should not be stale or an
  aberration of the past, but should be the continuing cause for
  the death under Section 3048 or the suicide under Section 306
G of the IPC. Once the presence of these concomitants are
  established or shown or proved by the prosecution, even by
  preponderance of possibility, the initial presumption of
  innocence is replaced by an assumption of guilt of the accused,
  thereupon transferring the heavy burden of proof upon him and
H requiring him to produce evidence dislodging his guilt, beyond
 SHER SINGH@ PARTAPA v. STATE OF HARYANA                     47
           [VIKRAMAJIT SEN, J.]
reasonable doubt. It seems to us that what Parliament intended A
by using the word 'deemed' was that only preponderance of
evidence would be insufficient to discharge the husband or his
family members of their guilt. This interpretation provides the
accused a chance of proving their innocence. This is also the
postulation of Section 101 of the Evidence Act. The purpose 8
of Section 1138 of the Evidence Act and Section 3048 of the
IPC, in our opinion, is to counter what is commonly encountered
- the lack or the absence of evidence in the case of suicide or
death of a woman within seven years of marriage. If the word
"shown" has to be given its ordinary meaning then it would only c
require the prosecution to merely present its evidence. in Court,
not necessarily through oral deposition, and thereupon make
the accused lead detailed evidence to be followed by that of
the prosecution. This procedure is unknown to Common Law
systems, and beyond the contemplation of the Cr.P.C.
                                                                   D
      15. The width and amplitude of a provision deeming the
guilt of a person in a legal system founded on a Constitution
needs to be briefly reflected on. The Constitution is the
grundnorrn on which the legal framework has to be erected and
its plinth cannot be weakened for fear of the entire structure E
falling to the ground. If the Constitution expressly affirms or
prohibits particular state of affairs, all statutory provisions which
are incongruent thereto must be held as ultra vires and,
therefore, must not be adhered to. We have already noted that
Article 20 of our Constitution while not affirming the presumption F
of innocence does not prohibit it, thereby, leaving it to
Parliament to ignore it whenever found by it to be necessary
or expedient. A percutaneous scrutiny reveals that some legal
principles such as presumption of innocence can be found
across a much wider legal system, ubiquitously in the Common G
Law system, and restrictively in the Civil Law system. It seems
to us that the presumption of innocence is one such legal
principle which strides the legal framework of several countries
owing allegiance to the Common Law; even International Law
bestows its imprimatur thereto. Article 11.1 of the Universal H
    48        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A  Declaration of Human Rights, 1948 states - "Everyone charged
   with a penal offence has the right to be presumed innocent until
   proved guilty according to law in a public trial at which he has
   had all the guarantees necessary for his defence." Article
   14(3)(g) of the International Covenant on Civil and Political
.8 Rights, 1966, assures as a minimum guarantee that everyone
   has a right not to be compelled to testify against himself or to
   confess guilt. Article 6 of the European Convention for the
   Protection of Human Rights and Fundamental FreedC>ms, firstly;
   promises the right to a fair trial and secondly, assures that.
 C anyone charged with a criminal offence shall be presumed
   innocent until proved guilty according to law. We may
   immediately emphasise that the tenet of presumed innocence
   will always give way to explicit legislation to the contrary. The
   presumption of innocence has also been recognised in certain
   circumstances to constitute a basic human right. Parliament,
 0
   however, has been tasked with the responsibility of locating
   myriad competing, if not conflicting, societal interests. It is quite
   apparent that troubled by the exponential increase in the
   incidents of bride burning, Parliament thought it prudent,
   expedient and imperative to shift the burden of proof in
 E contradistinction to the onus of proof on to the husband and his
   relatives in the cases where it has been shown that a dowry
   death has occurred. The inroad into or dilution of the
   presumption of innocence of an accused has, even de hors
   statutory sanction, been recognised by Courts in those cases
 F where death occurs in a home where only the other spouse is
   present; as also where an individual is last seen with the
   deceased. The deeming provision in Section 3048 is,
   therefore, neither a novelty in nor an anathema to our criminal
   law jurisprudence.[See Mir Mohammad Omar and
 G Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.

          16. It has already been pointed out that both in Pathan
     Hussain Basha as well as in Ashok Kumar v. State of
     Haryana 2010 (12) sec 350, authored by our same learned
H    Brother, the use of word "shown" in Section 3048 has palpably
 SHER SINGH @ PARTAPA v. STATE OF HARYANA                     49
            [VIKRAMAJIT SEN, J.]

not been given due weightage inasmuch as it has been freely         A
substituted by the word "proved". To the contrary in Na/lam
Veera Stayanandam v. Public Prosecutor 2004 (10) SCC
769, it has been opined that "it is for the defence in this case
to satisfy the Court that irrespective of the prosecution case in
regard to dowry demand and harassment, the death of the             B
deceased has not occurred because of that and that the same
resulted from a cause totally alien to such dowry demand or
harassment."

      17. Keeping in perspective that Parliament has employed
the amorphous pronoun/noun "it" (which we think should be
                                                                    c
construed as an allusion to tt:e prosecution), followed by the
word "shown" in Section 3048, the proper manner of
interpreting the Section is that "shown" has to be read up to
mean "prove" and the word "deemed" has to be read down to
mean "presumed". Neither life nor liberty can be emasculated        D
without providing the individual an opportunity to disclose
extenuating or exonerating circumstances. It was for this reason
that this Court struck down the mandatory death sentence in
Section 303 IPC in its stellar decision in Mithu vs. State of
Punjab, AIR 1983 SC 473. Therefore, the burden of proof             E
weighs on the husband to prove his innocence by dislodging
his deemed culpability, and that this has to be preceded only
by the prosecution proving the presence of three factors, viz.
(i) the death of a woman in abnormal circumstances (ii) within
seven years of her marriage, and (iii) and that the death had a     F
live link with cruelty connected with any demand of dowry. The
other facet is that the husband has indeed a heavy burden cast
on his shoulders in that his deemed culpability would have to
be displaced and overturned beyond reasonable doubt. This
emerges clearly as the manner in which Parliament sought to         G
corr.bat the scourge and evil of rampant bride burning or dowry
deaths, to which manner we unreservedly subscribe. In order
to avoid prolixity we shall record that our understanding of the
law finds support in an extremely extensive and erudite
judgment of this Court in P.N. Krishna Lal v. Government of         H
    50        SUPREME COURT REPORTS                  [2015) 1 S.C.R.


A   Kerala, 1995 Supp (2) SCC 187, in which decisions spanning
    the globe have been mentioned and discussed. It is also
    important to highlight that Section 3048 does not require the
    accused to give evidence against himself but casts the onerous
    burden to dislodge his deemed guilt beyond reasonable doubt.
8   In our opinion, it would not be appropriate to lessen the
    husband's onus to that of preponderance of probability as that
    would annihilate the deemed guilt expressed in Section 3048,
    and such a curial interpretation would defeat and neutralise the
    intentions and purposes of Parliament. A scenario which readily
C   comes to mind is where dowry demands have indubitably been
    made by the accused husband, where in an agitated state of
    mind, the wife had decided to leave her matrimonial home, and
    where while travelling by bus to her parents' home she
    sustained fatal burn injuries in an accidenUcollision which that
    bus encountered. Surely, if the husband proved that he played
0
    no role whatsoever in the accident, he could not be deemed to
    have caused his wife's death. It needs to be immediately
    clarified that if the wife had taken her life by jumping in front of
    a bus or before a train, the husband would have no defence.
    Examples can be legion, and hence we shall abjure from going
E   any further. All that needs to be said is that if the husband proves
    facts which portray, beyond reasonable doubt, that he could not
    have caused the death of his wife by burns or bodily injury or
    not involved in any manner in her death in abnormal
    circumstances, he would not be culpable under Section 3048.
F

         18. Now, to the case in hand. It has been contended before
    us, as was also unsuccessfully argued before both the Courts
    below that there was a 'delay' in lodging the FIR. There is no
G   perversity in the concurrent views that its lodgement after ten
    hours on the day next after the trage'dy, i.e. 8/02/98 did not
    constitute inordinate delay such as would justifiably categorising
    the FIR as an after-thought or as contrived. The Complainant
    along with family and friends had to travel to another village;
    he would have had to first come to terms with the tragedy, make
H
 SHER SINGH@ PARTAPA v. STATE OF HARYANA                      51
           [VIKRAMAJIT SEN, J.]
enquiries and consider the circumstances, before recording the      A
FIR. Equally preposterous is the argument that once the High
Court had seen fit to acquit the other accused, namely,
Davinder Singh (brother-in-law) and Jarnail Singh (father-in-law)
the husband/Appellant should have been similarly acquitted. It
cannot be ignored that the accused was not living with his          B
parents and brother, and it is justified nay necessary to require
stronger proof to implicate the family members of the husband.
It has been essayed by the learned counsel for the Appellant
to impress upon us that the cruelty postulated in this provision
has not been shown to have occurred "soon before her death".        C
This argument, assumes on a demurrer, that statutory cruelty
had, in fact, been committed. The deceased and the Appellant
were married in February, 1997 and the former committed
suicide within one year; to even conjecture that it was not soon
before death, has only to be stated to be stoutly shot down.
                                                                    D
      19. We must consider, lastly, whether the prosecution has
successfully 'shown' that the deceased was subjected to cruelty
which was connected with dowry demands. We may usefully
reiterate here that keeping in perspective the use of "shown"
instead of "proved" the onus would stand satisfied on the anvil     E
of preponderance of evidence.

     20. The two prosecution witnesses, on whom the entire
episode is predicated, are PW4 and PW?. The ComplainanU
PW4-Angrez Singh appears to be the eldest in the family as·         F
he has stated that his brother, i.e. the father of the deceased,
had already died. He has stated that sufficient kanyadan was
given at the time of marriage; that two months prior to her death
the deceased had, on one of her visits to their home, conveyed
to her brothers that her husband and his family were harassing      G
her for dowry, especially a motorcycle and fridge. On learning
of these demands PW4 had told her that these goods would
be provided at the time of the marriage of her brothers. PW4
was told by Rajwant Singh that his niece had committed
suicide. The Complainant has admitted that there were no
                                                                    H
    52       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A   demands for dowry either at the betrothal or at the time of
    marriage. Her maternal uncle Gurdip Singh avowedly fixed/
    mediated/arranged the unfortunate marriage, yet he was not
    apprised of the dowry demands by Angrez Singh. He has also
    denied that any panchayat was convened regarding these
B   dowry demands, whereas Sukhwant Singh PW7, the real
    brother of the deceased, has categorically stated in cross-
    examination, that a panchayat comprising both Angrez Singh
    and Gurdip Singh and several others had held deliberations.

          21. In cross-examination, the complainant has admitted
C   that the deceased never spoke to him about her domestic
    problems or regarding demand of dowry by the accused except
    once, on the last occasion of her visit. He has further admitted
    that even her brothers had not conveyed any information to him
    in this regard. On the fateful day PW4 stated that he reached
D   the village where the deceased resided and where she had
    committed suicide at about 7.00 pm on 7.2.1998 and that he
    immediately left for that place along with several others after
    ascertaining facts; the following morning he lodged the report
    at P.S. Assandh. What is important from his deposition is that
E   he has deposed of only one alleged demand of dowry.

         22. Sukhwant Singh, the real brother of the deceased has
    been examined as PW7 and he has deposed that the
    deceased visited their house two months prior to her death and
F   narrated that the Appellant, his younger brother, their father and
    mother used to harass and torture her and demand dowry in
    the form of motorcycle and fridge and that he had told these
    facts to their uncle, Angrez Singh, as well as to his elder brother
    Jaswant Singh. He has further stated that he made the
G   deceased understand about their financial difficulties and
    promised to give motorcycle and fridge after his marriage and
    that of her brother. He was informed of the death of the
    deceased on 7.2.98 by Angrez Singh/PW4. In cross-
    examination even this witness has admitted that no dowry
    demands were made prior to or at the time of marriage. He
H
  SHER SINGH @ PARTAPA v. STATE OF HARYANA                      53
             [VIKRAMAJIT SEN, J.]
                               ,_

 has also deposed about a panchayat which included Gurdeep            A
 Singh (maternal uncle) as well as Angrez Singh/PW4 who, as
 has already been noted, has categorically stated that no such
 Panchayat took place. The version of the Appellant was put to
 him and denied, namely, that the deceased was hot tempered,
 wanted him to shave his hair, forced him to live separately from     B
 his parents, wanted him to shift to Kamal and start a business,
 all of which were against his wishes. The fundamental and vital
 question that the Court has to ask itself and find a solid answer
 to, is whether this evidence even preponderantly proves that the
 Appellant had treated the deceased with cruelty connected with       c
 dowry demands. It is only if the answer is in the affirmative will
 the Court have to weigh the evidence produced by the Appellant
 to discharge beyond reasonable doubt, the assumption of his
 deemed guilt. We have not lost sight of the fact that the
 deceased was pregnant at the time of her suicide and that only       0
 extraordinary and overwhelming factors would have driven her
 to take her life along with that of her unborn child. The fact
 remains that she did so. What motivated or compelled her to
 take this extreme and horrific step will remain a mystery, as we
 are not satisfied that the prosecution has proved or even shown
                                                                      E
 that she was treated with such cruelty, connected with dowry
 demands, as led her to commit suicide. In the normal course
 dowry demands are articulated when the marriage is agreed
 upon and is certainly reiterated at the time when it is performed
 and such demands continue into a couple of years of
  matrimony. In normal course, if a woman is being tortured and       F
  harassed, she would not remain reticent of th;s state of affairs
 and would certainly repeatedly inform her family. This is
_specially so before she takes the extreme step of taking her
  own life. Added to this are the inconsistencies and
  contradictions between the statements of PW4 and PW7 with           G
  regard to the panchayat and the presence of and knowledge
  of Gurdip Singh. It is for these reasons that we are of the
  opinion that the prosecution has not shown/presented and or
 proved even by preponderance of probabilities that the
 deceased had been treated with cruelty emanating from or             H
    54           SUPREME COURT REPORTS           [2015] 1 S.C.R.


A   founded on dowry demands. It is in the realm of a possibility
    that the ingestion of aluminium phosphate may have been
    accidental.

       23. We may only observe that in his examination under
  Section 313 Cr.P.C. the accused has proffered details of his
8
  defence. This is not a case where he has merely denied all the
  questions put by the Court to him. As already stated above,
  because of the insufficiency or the unsatisfactory nature of the
  facts or circumstances shown by the prosecution, the burden
C of proving his innocence has not shifted to the Appellant, in the
  present case.

         24. In this analysis, the Appeal is allowed and the
    impugned Judgment convicting and punishing the Appellant is
    set aside.
D
    Nidhi Jain                                       Appeal allowed