# SHER SINGH @ PARTAPA v. STATE OF HARYANA

- **Citation:** [2015] 1 S.C.R. 29
- **Court:** Supreme Court of India
- **Decided:** 2015-01-09
- **Case number:** Criminal Appeal No. 1592 of 2011
- **Bench:** VIKRt.MAJIT SEN, Kurian Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sher-singh-partapa-v-state-of-haryana-30429
- **Pages:** 26

## Headnote

Penal Code, 1860 - ss. 3048 and 498A - Dowry death
A
B
- 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
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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]
F
1.2. The burden of proof 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)
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

## Text

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[2015] 1 S.C.R. 29
SHER SINGH @ PARTAPA
v.
STATE OF HARYANA
(Criminal Appeal No. 1592 of 2011)
JANUARY 09, 2015
[VIKRt.MAJIT SEN AND KURIAN JOSEPH, JJ.]
Penal Code, 1860 - ss. 3048 and 498A - Dowry death
A
B
- 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
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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]
F
1.2. The burden of proof 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)
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 508-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
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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
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
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
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.
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.
The Judgment of the Court was delivered by
VIKRAMAJIT SEN, J. 1. This Appeal has been filed
8
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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
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[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
A
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[2015] 1 S.C.R.
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
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 ·
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
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
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
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
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
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
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
B
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.
8. The legal regime pertaining to the death of a woman
within seven years of her marriage thus has numerous features,
inter alia:
E
. (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.
(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
G
is 'shown' in contradistinction to 'proved' that soon
before her death she was subjected to cruelty or
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[2015) 1 S.C.R.
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.
(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",
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
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
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.
(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,
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.
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
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2015] 1 S.C.R.
.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
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
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:
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
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.
(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
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.
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,
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
F
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
B
c
D
E
F
G
H
which is worthy of reproduction:
"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
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
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
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
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
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
....
'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
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
F
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
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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.
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
D
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
0
circumstances to constitute a basic human right. Parliament,
however, has been tasked with the responsibility of locating
myriad competing, if not conflicting, societal interests.