BIJU vs STATE OF KERALA

Court
Kerala High Court

​ ​ ​ ​ ​ ​ ​ CNR : KLHC010141452016
​ ​ ​ ​ ​ ​ ​ ​ ​
2026:KER:85505
​ IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
FRIDAY, THE 6 DAY OF NOVEMBER 2026 / 15TH KARTHIKA, 1948
CRL.A NO. 1144 OF 2016
CRIME NO.703/2006 OF Vadakara Police Station, Kozhikode
AGAINST THE JUDGMENT DATED 09.11.2016 IN SC NO.613 OF
2009 OF ADDITIONAL SESSIONS COURT, VADAKARA
APPELLANTS/ACCUSED NOS.1 AND 2:
1 BIJU, AGED 39 YEARS, S/O.LAKSHMANAN, STALIN NIVAS,
KELOTHKANDY, KURIKKILAD, KOZHIKODE DISTRICT.

2 LAKSHMANAN, AGED 63 YEARS, S/O.VELAYUDHAN, STALIN NIVAS,
KELOTHKANDY, KURIKKILAD, KOZHIKODE DISTRICT.

​
BY ADVS.
​
SHRI.T.SHAJITH
SMT.NIMISHA T.

RESPONDENT/S:

STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF
POLICE, VATAKARA POLICE STATION, KOZHIKODE, REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

OTHER PRESENT:

SRI.SAJEEV P.K., SR.PP

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

22.10.2026, THE COURT ON 06.11.2026 DELIVERED THE FOLLOWING:

Crl. Appeal No.1144 of 2016​ 2

A. BADHARUDEEN, J.
—--------------------------------------------
Crl. Appeal No.1144 of 2016
—---------------------------------------------------
Dated this the 6th day of November, 2026
​ ​ ​ ​ ​ ​ ​ ​ ‘CR’
JUDGMENT

​ This appeal has been filed by accused Nos.1 and 2 in
S.C.No.613/2009 on the files of the Additional Sessions Court,
Vatakara, Kozhikode challenging the judgment dated 09.11.2016 in
the said case.
​ 2.​ Heard the learned counsel for the appellants/accused 1
and 2 and the learned Public Prosecutor appearing for the
prosecution. Perused the verdict impugned and the evidence
available.
​ 3.​ Here, consequent to the death of one Sheeba, daughter
of PW2, on 11.10.2006, FIR was registered and thereafter,
investigation was completed, which led to the filing of final report
alleging commission of offences punishable under Sections 304B
and 498A r/w 34 of the Indian Penal Code (hereinafter referred to as
‘IPC’) by accused Nos.1 to 4. The allegation is that accused Nos.1 to
4 subjected Sheeba to mental and physical cruelty demanding more
dowry and as a consequence of the said cruelty, she committed
suicide.

Crl. Appeal No.1144 of 2016​ 3

​ 4.​ Learned Sessions Judge, on completing the pre-trial
formalities, started trial. During trial, PWs.1 to 21 were
examined, Exts.P1 to P20 and MO1 were marked on the side of
prosecution. DW1 was examined and Exts.D1 and D2 were
marked on the side of the defence.
​ 5.​ On a meticulous evaluation of the evidence, learned
Sessions Judge found that accused Nos.1 and 2 had committed
offences punishable under Sections 304B and 498A r/w 34 of IPC
while acquitting accused Nos.3 and 4. Accordingly, accused
Nos.1 and 2 are sentenced as under:
“In the result, A1 and A2 are sentenced to undergo rigorous
imprisonment for 7 (seven) years each u/s. 304B r/w 34 IPC
and they are also sentenced to undergo rigorous
imprisonment for 3 (three) years each and pay fine of
Rs.25,000/­ (Rupees Twenty Five Thousand only) each u/s
498(A) r/w 34 IPC. In default of payment of fine, rigorous
imprisonment for further period of three months each. The
period of imprisonment alone shall be run concurrently. Out
of the fine amount realised from A1 and A2 Rs.20,000/­
(Rupees Twenty Thousand only) each shall be paid to PW2
and PW3, the father and mother of victim, deceased Sheeba,
as compensation u/s. 357(1) Cr.P.C. A1 and A2 were in
custody from 15/10/2006 to 22/12/2006. The period of
remand of accused shall be set off u/s. 428 Cr.P.C.”
​
6.​ Multifaceted contentions have been raised by the
learned counsel for the appellants to contend that the learned
Sessions Judge went wrong in finding that the appellants had

Crl. Appeal No.1144 of 2016​ 4

committed offences punishable under Sections 304B and 498A
r/w 34 of IPC. The learned counsel took attention of this Court to
the evidence tendered by PW2 to PW5, PW7 and PW8 to contend
that their evidence in no way would suggest the ingredients for
the offences found to be committed by the appellants/accused
Nos.1 and 2. An argument note has also been placed by the
learned counsel for the appellants in similar lines. The main
contentions raised in the argument notes contained in
paragraphs 8 to 24, 33 to 47 and 48 are extracted hereunder:

8. PW2 Narayanan is the father of the deceased. He was
examined to prove the cruelty.PW2 in his chief examination
deposed 6 instances which are reproduced below;

I. വിവാഹശേഷം 3 ദിവസം കഴിഞ്ഞ് ഞാനും അയ സുരേഷും കൂടി പ്രതികളുടെ
ൽക്കാരനായ
വീട്ടി പോയി . അപ്പോ സ്വ പറഞ്ഞു എന്നെ ബുദ്ധിമുട്ടിക്കുന്നുണ്ട് എന്നു പറഞ്ഞു .A1,
ൽ ൾ ർണ ം
A2 ബുദ്ധിമുട്ടിക്കുന്നു എന്നാണ് പറഞ്ഞത് . 15 പവ സ്വ കൂടി വേണം എന്നാണ്
ൻ ർണ ം
പറഞ്ഞത് . സ ക്ഷണിക്കാനാണ് ഞാ പോയത് .10,17 ദിവസം
ൽക്കാരത്തിന് ൻ
കഴിഞ്ഞാണ് സ വന്നത് .
ൽക്കാരത്തിന്
II. എന്റെ അളിയ സ ക്ഷണിച്ചിട്ട് അവ പോയിരുന്നില്ല . സ്വ
ൻ ൽക്കാരത്തിന് ർ ർണ ം
.
കുറഞ്ഞു പോയത് കൊണ്ടാണ് പോകാതിരുന്നത് എന്നാണ് പറഞ്ഞത്
III. ഇടക്ക് ഞാ മകളെ കാണാ പോകുമായിരുന്നു . അപ്പോഴൊക്കെ സ്വ പോര
ൻ ൻ ർണ ം
എന്ന് പ്രതിക പറയുമായിരുന്നു .
ൾ
IV. .
മക ഗ സമയം പ്രസവത്തിന് കൂട്ടാ പറയാ വേണ്ടി എന്റെ ഭാര്യയും
ൾ ർഭിണിയായ ൻ ൻ
മാധവന്റെ ഭാര്യയും പോയിരുന്നു എന്നാണ് ഓ . 15 പവ സ്വ കൂടി തന്നാ
ർമ്മ ൻ ർണ ം ൽ
മകളെ പറഞ്ഞയക്കാം എന്ന് A1,A2 എന്റെ ഭാര്യയോട് പറഞ്ഞു . (According to PW3-
A1,A4 ).
ആവശ്യപ്പെട്ടു
V. ഷീബ വീട്ടി വന്ന ശേഷം എന്റെ ഭാര്യയോടും എന്റെ ഇളയ മകളോടും A2 എന്നെ
ൽ
ശാരീരികമായും ലൈംഗികമായും ഉപദ്രവിച്ചിരുന്നു എന്ന് പറഞ്ഞിരുന്നു .(This is a
material omission. Not stated before the Investigating Agency).

Crl. Appeal No.1144 of 2016​ 5

VI.
ഷീബ മരിക്കുന്നതിന് മു അവസാനമായി ഭാര്യയും മാധവന്റെ ഭാര്യയും എന്റെ ഇളയ
ൻപ്
മകളും പ്രതികളുടെ വീട്ടി പോയിരുന്നു . മരിക്കുന്നതിന് 3,4 ദിവസം മുമ്പാണ് പോയത് .
ൽ
കുഞ്ഞിനെ കാണിച്ച് കൊടുത്തില്ല .
9. In the cross examination this witness deposed that on the
very next day of the suicide the police questioned and
recorded his statement. He further deposed that the
statement of Madhavan, PW2 Chandrika, his son, CW4 and
PW7 his daughter was recorded.
10. Regarding the first allegation the same is marked as a
material omission. Even otherwise the same is proved to be
false in the light of the evidence of PW3 who is none other
than the wife of PW2. PW3 stated in the chief examination
itself that- .According
നാലാം ദിവസം ആയിരുന്നു എ വീട്ടി സ
ൻ്റെ ൽ ൽക്കാരം
to PW2 after 3 days he went along with one Mr.Suresh to the
house of the accused to invite them for salkaram. The said
visit was only on the fourth day or after that. But PW3
categorically deposed that the deceased and others reached
for salkaram on the 4th day itself. Moreover the person
namely Suresh was neither cited as witness nor examined
before the trial court.
11. The second and third allegations are general allegations
against all accused.
12. With respect to the 4th allegation the same is contradictory
to the evidence of PW3. First of all, PW2 has only hearsay
information about the 3rd allegation. He gathered the said
information from his wife. But PW3 who is the wife of PW2 has
no case that she visited there along with Madhavan’s wife. Even
though Madhavan’s wife was cited as a witness CW9, she was
given up by the prosecution. Moreover according to PW3 all the
accused demanded for gold ornaments (A1 to A4) before taking
the deceased to her house on the 7th month of pregnancy. But
PW2 deposed that A1 and A2 demanded gold ornaments. This
information gathered by PW2 from PW3 is contradictory to the
evidence of PW3.
13. With respect to the 5th allegation A2 was found not guilty.
More over the 5th allegation against A2 was proved as a
material omission.
14. With respect to the 6th allegation, the same is also a
hearsay information as far as PW2 is concerned. This piece of
evidence is totally contradictory to the evidence given by
PW3.

Crl. Appeal No.1144 of 2016​ 6

15. PW3 - ചന്ദ്രി (Mother) - Incriminating evidence
I. ഷീബ കല്യാണം കഴിഞ്ഞു നാലാം ദിവസം വീട്ടി വന്നിരുന്നു . ആ സമയം മക
ൽ ൾ
സ്വ കുറഞ്ഞു പോയതായി പറയുന്നു എന്ന് പറഞ്ഞിരുന്നു .
ർണ ം
This evidence is totally contradicting to the evidence of PW2.
PW2 has no such case. According to PW2, father, he went to
the house of the accused after three days for inviting Sheeba
for “ സ ” and she along with her husband reached the
ൽക്കാരം
house after 10-17 days. Moreover the evidence itself is
contradicting to her own version in cross പിന്നെ 10,17 ദിവസം
. .
കഴിഞ്ഞു ഷീബ സ വന്നിരുന്നു ഷീബയും പ്രതിയും വന്നിരുന്നു അന്നും
ൽക്കാരത്തിന്
സ്വ കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് A1,A2,A4 ബുദ്ധിമുട്ടിക്കുന്നു എന്ന് മക
ർണ ം ൾ
. The above answers elicited in the cross examination of
പറഞ്ഞു
PW3 would go to show that the allegation against the accused
is absolutely false.
“According to PW2, there is only one “ സ ” . But if the
ൽക്കാരം
version of PW3 is believed there are two salkaram
(reception).
II. പിന്നെ 10,17 ദിവസം കഴിഞ്ഞു ഷീബ സ വന്നിരുന്നു . ഷീബയും പ്രതിയും
ൽക്കാരത്തിന്
വന്നിരുന്നു . അന്നും സ്വ കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് A1,A2,A4 ബുദ്ധിമുട്ടിക്കുന്നു
ർണ ം
എന്ന് മക പറഞ്ഞു .
ൾ
Here also, this piece of evidence is totally contradictory to
the evidence of PW2. Firstly PW2 has no such case. PW2 has
got a different version about the same. His evidence is
“10, 17 . A1
that………. ദിവസം കഴിഞ്ഞാണ് സ വന്നത് ഉം ഷീബയും
ൽക്കാരത്തിന്
മാത്രമാണ് വന്നത് . ആ സമയം താലി ഒഴികെ ഞാ കൊടുത്ത ആഭരണം കണ്ടില്ല . ചോദിച്ച
ൻ
".
സമയം അവ പെങ്ങ വീട് വെക്കാ പണയം വച്ചു എന്നാണ് പറഞ്ഞത്
ൾക്ക് ൻ
Moreover, the said piece of evidence is an omission.
III. പ്രസവത്തിന് 7 ആം മാസം മകളെ കൂട്ടികൊണ്ട് വന്നിരുന്നു . അതിന് മു
ൻപ്
സ്വ A1 to A4 ആവശ്യപ്പെട്ടു .
ർണ ത്തിന്
This evidence also contradicting to the evidence of PW2.
According to PW2, PW3 and PW5’s wife went to the house for
taking the deceased to house when she was 7 month
pregnant. PW3 has no case that she went there along with
PW’5’s wife. Her case is that 15 sovereigns demanded by A1 to
A4.
IV. പ്രസവത്തിന് വന്ന സമയം ഷീബ തന്നെ പ്രതിക ശാരീരികമായും
ൾ
മാനസികമായും പീഡിപ്പിക്കുന്നു എന്ന് പറഞ്ഞു . A2 വല്ലാതെ പീഡിപ്പിക്കുന്നു എന്ന്
പറഞ്ഞു . With respect to this general allegation A2 was found
not guilty. The said allegation is only an omnibus allegation

Crl. Appeal No.1144 of 2016​ 7

V. ഷീബ മരിക്കുന്നതിന് 3 ദിവസം മുമ്പ് ഞാനും ഇളയമകളും ആങ്ങളയുടെ ഭാര്യയും
. .
പോയിരുന്നു കുട്ടിയെ എടുക്കാ വീടുകാ സമ്മതിച്ചില്ല ബാക്കി സ്വ തരാതെ ആരും
ൻ ർ ർണ ം
വരണ്ട എന്ന് A1 പറഞ്ഞു . A1 ഷീബയെ മുറിയി കൊണ്ടുപോയി വാതിലടച്ചു . ടി കാര്യം
ൽ
PW2 നോട് പറഞ്ഞു . A2 ഷീബയെ മുറിയി നിന്നും പിടിച്ചു വലിച്ചു കൊണ്ട് വന്നു .
ൽ
. .
ബ്ലൌസ് കീറി പുറത്ത് കല ഉണ്ട് എന്നും പറഞ്ഞു കല ഞങ്ങ കണ്ടില്ല
ൾ
This evidence also highly contradicting to the evidence of
PW2. As per his version, when PW3 along with her daughter
and CW9 visited the house of the accused three days prior to
the suicide, there was no demand for gold ornaments from
anybody. He has got a different version about the same.
●​ PW3 categorically and clearly admits that Sheeba was
sad as A3’s wife got 50 sovereigns.
●​ She further deposed in cross examination that 10-18
times she went to the house of accused to meet Sheeba.
●​ She further deposed that after delivery accused came
to the house of the deceased and gifted gold ornaments to
the child.
●​ According to her after delivery A1 reached the house
several times to visit Sheeba and child.
●​ According to PW3, 4th day after death her statement
was recorded by Investigating Officer. More over PW2’s
statement was also recorded. According to her Shyju (PW8)
was also present there.
16. PW4 is Jisna who is the wife of A3. It has come out from
her evidence that she had gone to her house for delivery and
that she did not return to the house of her husband as the
information of the suicide of the deceased from the house
took place. She has also stated that after delivery, not only
the deceased and A1, but others also had visited her house
and had given gifts to her child. It has further come out that
it is only on the basis of the allegations levelled against the
accused by the relatives of the deceased that her marriage
also broke.
17. PW4 generally stated all accused used to say – സ്വ
ർണം
കുറഞ്ഞുപോയി സ്വ കുറഞ്ഞുപോയി എന്ന് പറഞ്ഞ് ഷീബയെ A1 അടിക്കുമായിരുന്നു .
ർണം
18. Cross examination- The following answers are elicited
●​ Deceased asked her about her gold ornaments
●​ She decided to come back to the house of the accused
when she was taken for delivery.
●​ But due to this case and allegations she decided not to
come back.

Crl. Appeal No.1144 of 2016​ 8

●​ According to her, her knowledge with respect to the
incident is as told by deceased. This is a material omission.
●​ She further deposed that, she did not witnessed any
incident of cruelty.
●​ Her statement was recorded one week after death.
The above answers elicited in the cross examination would
go to show that she has no direct knowledge about anything.
19. PW5 Madhavan is the maternal uncle of the deceased. His
evidence regarding demand of gold ornaments and other
incidents spoken to by PWs 2 to 4 are highly contradictory
20. PW5 stated in chief examination
പിന്നീട് ഞാ പ്രതികളുടെ വീട്ടി പോയത് കല്യാണം കഴിഞ്ഞ് ഒരു മാസം കഴിഞ്ഞ്
ൻ ൽ
.
ഞാനും ഷീബയുടെ അച്ഛനും കൂടിയാണ് സ്വ കുറഞ്ഞു എന്ന് പറഞ്ഞ് മകളെ ശല്യം
ർണം
ചെയ്യുന്നു എന്ന കാര്യം തിരക്കാം എന്ന് PW2 പറഞ്ഞ പ്രകാരമാണ് പോയത് . ആ കാര്യം
A2 ആയി സംസാരിച്ചിരുന്നു . എല്ലാ A1 നോട് പറഞ്ഞാ മതി എന്ന് A2 പറഞ്ഞു .
ൽ
A2 . 50
എന്തുകൊണ്ടാണ് സ്വ കുറച്ച് തന്നത് എന്ന് ചോദിച്ചിരുന്നു പവ തന്നെ
ർണ ം ൻ
കിട്ടണം എന്ന് A1 പറഞ്ഞു . ഇതി കൂടുത തരാ കഴിയില്ല എന്ന് ഞാ പറഞ്ഞു . This
ൽ ൽ ൻ ൻ
evidence spoken to by PW5 is totally contradictory to the
evidence of PW2. In fact PW2 has no such case as spoken to
by PW5.Nobody has got a case that after one month PW2 and
PW5 visited the house of the accused. Moreover this
allegation is contradictory to the evidence of PW2 and PW3.
PW2 generally stated that A1 and A2 demanded 15 sovereigns.
PW3 stated that A1 to A4 demanded 15 sovereigns. But the
evidence of PW5 is that A1 demanded 50 sovereigns. This
evidence is mutually contradictory.
21. It is further pertinent to note that at the time inquest the
case of PW5 was to the effect that 35 sovereigns was given at
the time of marriage. This evidence is also totally
contradictory to the evidence of PW2 and PW3.
22. PW6-Nanu is the witness who has proved the scene
Mahazar Ext.P2.
23. PW7 - Shijina is the younger sister of the deceased. It is
very strange and embarrassing to note that she has been
examined for the purpose of proving the allegation against
A2. She herself was made to admit in the chief examination
itself that such an allegation was never divulged to the police
when she was questioned and her statement was recorded.
The prosecution kept silent during her chief examination
regarding the allegations of 304B,498(A) etc. But in the cross

Crl. Appeal No.1144 of 2016​ 9

examination, it has come out that the entire evidence spoken
to by PW2 to 4 are utterly false.
24. It is pertinent to note that the entire allegation with
respect to the demand of gold ornaments prior to taking
Sheeba to her house in the month of April 2006 in connection
with her pregnancy is proved to be false in the light of the
evidence of PW7. According to PW2 and PW3 Sheeba was
taken to her house when she was 7month pregnant in the
month of April. For this purpose PW8 purchased gold
ornaments in the month of April. But PW7 categorically
deposed that Sheeba was taken to her house in the month of
March. She deposed that “
മാ മാസം ഭര്ത്താവി വീട്ടി നിന്നും
ർച്ച് ൻ്റെ ൽ
ഞങ്ങളുടെ വീട്ടിലേക്കു കൂട്ടികൊണ്ടു വന്നു .”
33. PW14 is Dr. Shirly Vasu, who is giving evidence stating
that she had supervised the post mortem examination
conducted by PW9 and further stating that she had occasion
to see the corpus of the deceased. This evidence is tendered
by her without any documents of any kind to show that she
had supervised the post mortem examination. It is evident
that she has been rendering a helping hand to the
investigating agency as well as the prosecution to bring
home the false allegations against the accused. It has come
out in the cross examination of PW9 that PW14 was not
present at the time of post mortem examination. Her
evidence is not only contradictory to the evidence of PW9,
but also on the basis of assumptions and presumptions
which has no legal basis. The position and lie of the place of
incident, the window, the seat of the window etc, were not
taken into account by her at all.
34. PW15 - is Sheena, is said to be a neighbour of the house of
the accused. She has not let in any evidence in favour of the
prosecution. She has further stated that there was no room
for any suspicion against the accused.
35. PW16- Madhusoodanan Nair T., S.I of Police, Vatakara,
who has conducted the first investigation in the case and
recorded the statements of CWs1,3, 8, 11 to 15 and 21.
36. According to PW-16, he recorded the statement of CW1,
CW3, CW8, CW11 to CW15,CW3 was examined as PW3
(Mother) ,CW11 to CW13 and CW15 given up.CW14 is a Scene
Mahazar witness he was examined as PW6.According PW16
he filed the report (Ext.P12) to incorporate S.304B on the
basis of the 161 statement of CW3 and 11 to 15.

Crl. Appeal No.1144 of 2016​ 10


At this juncture the evidence of PW2 and PW3 are relevant.
• According to PW2….. “ പോലീസ് 3 തവണ ചോദ്യം ചെയ്‌തു എന്നാണ് ഓ .
ർമ്മ
പുനരന്വേഷണ സമയം ഒരു തവണ ചോദ്യം ചെയ്തു . ഭാര്യയെ ചോദ്യം ചെയ്തിരുന്നു . ചോദ്യം
.
ചെയ്തത് മരണപ്പെട്ടതി പിറ്റേന്നാണ് എന്നാണ് ഓ കുറച്ച് ദിവസം കഴിഞ്ഞ് വീണ്ടും
ൻ്റെ ർമ്മ
ചോദ്യം ചെയ്തു . ചോദ്യം ചെയ്തു സമയം മാധവ ഉണ്ടായിരുന്നു . മാധവനും ഭാര്യയും മകനും
ൻ
എന്റെ മകനും മകളും ഉണ്ടായിരുന്നു . അവരെ ചോദ്യം ചെയ്തിരുന്നു . സത്യസന്ധമായി മൊഴി
.
പറഞ്ഞ് കൊടുത്തിരുന്നു
According to PW3.... " മരണപ്പെട്ട 4 ആം ദിവസം വീട്ടി വച്ച് മൊഴി എടുത്തു
ൽ
ഭ ആങ്ങളയുടെ ഭാര്യയും ഉണ്ടായിരുന്നു . ആ സമയം എല്ലാവരുടെയും മൊഴി
ർത്താവും
. .
എടുത്തു വായിച്ചു കേ ശെരി ആണെന്ന് ബോധ്യപ്പെട്ടു ചോദ്യം ചെയ്തു സമയം
ൾപ്പിച്ചു
അയ ഉണ്ടായിരുന്നു . ഷൈജു , ഗോപാല , ശശി തുടങ്ങിയവ ഉണ്ടായിരുന്നു .
ൽവാസികൾ ൻ ർ
ഷൈജു എസ് . എസ് ജ്വല്ലറിക്കാരനാണ് ”.
37. At this juncture it is pertinent to note that PW8 Shyju has
been introduced after 2 years as a planted witness. According
to PW8 he has been questioned twice by the investigating
agency. But his earlier 161 statement has been suppressed.
The produced 161 statement was the statement recorded on
12/12/2008 that is the statement recorded after 26 months.
38. In fact PW16, the first investigating officer recorded the
161 statements of PW2,PW3,PW7 and PW8. All these
statements were suppressed by the investigating agency.
39. The produced 161 statement of PW2 is that of statement
recorded by PW17 on 07/11/2006, that is 28 days after the
suicide (suicide was 11/10/2006).
40. But witnesses like PW2 and PW3 categorically deposed
that they have been questioned immediately.
41. PW17 - K.R. Premachandran, the DySP Vatakara, who has
investigated the case from 15/01/2006 onwards.
●​ He took over the investigation on 15/10/2006. He
arrested A1 to A3.
●​ In fact PW16 and PW17 questioned and recorded the
statement of PW1 to PW12. This has been clearly deposed by
PW18 another DYSP who conducted part of the investigation.
42. PW18- K.S Gopakumar (DYSP) He clearly deposed that
when he took over the investigation the 161 statements of
CW1 to CW12 recorded by PW16 and PW17 were available in
the case diary. What happened to that statement in the case
diary is not known to anybody.

Crl. Appeal No.1144 of 2016​ 11

43. PW-19 P.P Sadanandan (DYSP) He started investigation on
06/02/2013. According to PW19 he recorded the 161
statements of CW1 to CW9 and it is on the basis of that
statement he file Ext.P12 (Report) to add S.498A, 354 and 306
IPC on 11/09/2013 that is after 7 years from the date of
incident.But it is interesting to note that even though he
recorded the 161 statement of CW1 to CW9, several
statements of material witnesses were not produced. The list
is as follows;
CW1- Sasi(PW1) – 161 statement not produced along with the
charge sheet
CW2- Narayanan (PW2)- 161 statement not produced along
with the charge sheet.
CW3- Chandri (PW3) - 161 statement not produced along
with the charge sheet
CW4- Sreejesh (Given up by the prosecution) - 161 statement
not produced along with the charge sheet.
CW5- Shijina(PW7) - 161 statement produced along with the
charge sheet.
CW6- Jasna (PW4) - 161 statement produced along with the
charge sheet. CW7 – Bhaskaran (Given up )
CW8 Madhavan (PW5) - 161 statement not produced along
with the charge sheet.
CW9- Sanitha (Given up)
44. It is pertinent to note that the basis for filing Ext.P12 was
the 161 statements of CW1 to CW9. But major portion of the
161 statements of the witnesses has been suppressed by the
investigating agency.
45. Further, according to PW19 the 161 statements of
CW2,CW4 to CW10 and CW12 recorded by PW16 were not
seen produced before the court.
46. Likewise he further deposed that the 161 statements of
CW1 and CW4 to CW12 recorded by PW17 was also not seen
produced before the trial court.
47. PW-20 Deepesh Kumar Behra (ASP Vatakara) He
conducted the investigation on 17/09/2009 onwards.
According to him the 161 statements of CW1 to CW12
recorded by CW37 to CW41 were available in the case diary.

Crl. Appeal No.1144 of 2016​ 12

At the time of his examination the produced 161 statements
were confronted to this witnesses. According to him only the
following statements have been produced before the court.
48. The accused has examined Dr. Rajagopalan as DW1 to
prove that the deceased was treated by him for post partem
Psychosis. The documents are marked as Ext. D1 & D2. It has
also come out in the evidence of DW1 that the deceased was
taken for treatment to DW1 by PW2 - Narayanan and A1.It is
true that the deceased committed suicide by hanging on
11/10/2006. The marriage between A1 and the deceased had
taken place on 28/08/2005. The marriage between A4 and PW4
Jesna had also taken place on 28/08/2005. In this connection,
it is pertinent to not that there is absolutely no evidence
available to show or to prove any unruly conduct on the part
of the accused towards the deceased in any manner
whatsoever. The answers elicited in the cross examination
through the prosecution witnesses would also go to show
that the relationship between the accused and their relatives
on one side and the deceased and her relatives on the other
side was more than Cordial. In fact, it is the evidence of PW3
Chandri who is none other than the mother of the deceased
is to the effect the she had occasion to visit the house of the
accused for meeting the deceased for about eighteen
occasions within a short period. This itself would show the
intensity of the relationship. Apart from this, even though
the prosecution witnesses were trying to paint a grim picture
of the relationship between the two families, it has come out
in flying colours in the cross examination that A1 and the
deceased were frequently visiting the house of the deceased
and the neighbouring houses. When the child was born, as is
the custom, an amount of Rs.5,000/- was paid by A1. It has
also come out in evidence that ornaments were given by A1
to A4 to the new born baby. It has further come out in
evidence that the accused along with the deceased had
visited the house of PW4 Jesna for seeing her new born baby.
It is also in evidence that sufficient present/gift was given to
the new born baby.
49.PW4 Jesna was examined by the prosecution to prove that
the accused were exhibiting an abnormal and violent
conduct towards PW4 and the deceased.PW4 says that she
was having 48 sovereigns of gold ornaments and the
deceased having 24 sovereigns of gold ornaments. She has
further stated that the accused were asking for more
ornaments from both. It has come out in her evidence that

Crl. Appeal No.1144 of 2016​ 13

after the unfortunate incident of hanging by the deceased
from the house of the accused, her parents were not prepared
to send her to that house. Pertinent questions were put to
PW4 as to while going for delivery, she had taken a decision
not to return to the house, her answer is in the negative. It
has come out in evidence that but for the unfortunate
incident, she would have returned to the house of the
accused and would have continued to lead a normal life with
A3.”

​ 7.​ The contention raised by the learned counsel for the
appellants is that this case was foisted by incorporating offences
punishable under Sections 498A and 304B of IPC due to political
rivalry, without producing the earlier Section 161 statements
recorded as that of the witnesses which would not disclose the
ingredients for the offences. According to the learned counsel for
the appellants, going through the evidence of PWs.2 to 5, PW7
and PW8, their evidence not at all credible to be acted upon to
find commission of the offences punishable under Sections 498A
and 304B r/w 34 of IPC by the accused nos.1 and 2 since the same
are contradictory and mutually destructive. According to the
learned counsel for the appellants, on evaluating the evidence let
in by prosecution supported by the evidence of DW1, the
appellants are entitled to get acquittal for want of proof of the
offences beyond reasonable doubts, by enlarging the benefit of

Crl. Appeal No.1144 of 2016​ 14

doubt.
​ 8.​ Whereas, it is pointed out by the learned Public
Prosecutor that, in the instant case, the evidence of PWs.2 to 5,
PW7 and PW8 supported by the medical evidence as that of PW9
and PW14 would substantiate the prosecution allegations, and
therefore, the learned Sessions Judge rightly entered into
conviction for offences punishable under Sections 498A and 304B
r/w 34 of IPC and in such view of the matter, the verdict would
not require interference.
​ 9. ​ Adverting to the rival contentions, the points arise for
consideration are:
​ (i) Whether the Sessions Court is right in holding that the
appellants/accused Nos.1 and 2 committed offence punishable
under Section 304B r/w 34 of IPC?
​ ( ii)​ Whether the Sessions Court erred in holding that the
appellants/accused Nos.1 and 2 committed the offence punishable
under Section 498A r/w 34 of IPC ?
​​ (iii) Whether the verdict would require interference?
​​ (iv) The order to be passed?
Point Nos.(i) to (iv)
​ 10.​ In order to address these contentions, evaluation of
the evidence is necessary. PW1 examined in this case is T.M. Sasi,

Crl. Appeal No.1144 of 2016​ 15

who is a neighbour of the accused. He had lodged Ext.P1 FIS,
which led to the registration of this crime. His evidence is that
Sheeba, wife of the first accused, committed suicide at about 1
p.m. on 11.10.2006 and he knew about the same on hearing cry
from the house. According to him, he, along with four persons,
reached the house and found Sheeba lying on the lap of the
second accused and the first accused was not present there though
accused Nos.2 to 4 were present there. According to him, accused
Nos.2 to 4 are father, brother and mother of the first accused. All
of them laid Sheeba on a cot, and at that time, she was
unconscious. Then the first accused reached the house and
brought an autorickshaw and took her to the hospital along with
accused Nos. 2 and 4. Then he added that he did not remember
whether it was accused No. 1 or 3 went to the hospital. Though
Sheeba reached the Government Hospital, the doctor did not see
her; since she died by the time. He admitted Ext.P1 statement in
this regard. In fact, PW1 is the person who had no direct
knowledge regarding the occurrence or the acts of cruelty, if any,
suffered by the victim.
​ 11.​ PW2 examined in this case is Narayanan, who is the
father of the deceased, Sheeba.​ In paragraph Nos. 16 to 20, the

Crl. Appeal No.1144 of 2016​ 16

learned Sessions Judge extracted the evidence of PWs.2 to 8
which are as under:
“16. To prove the alleged case against accused the
prosecution is mainly relied upon the testimonies of PWs 2,
3, 4, 5, 7 and 8. PWs 1, 6 and 15 are the neighbours of accused
and they had not seen the incident. PW1 would swear that on
hearing hue and cry from the house of accused he rushed to
there and he heard the breaking sound of door and he saw
Sheeba lying on the lap of A2 and A3 has cut and removed
shawl from the neck of Sheeba and A4 was crying. Further
swear that at that time A3 was not available in the house and
Sheeba was found to be breathing. Then A3 came there and
Sheeba was taken to Government Hospital Vatakara in an
Autorickshaw and he had also went to the Hospital. Then
the doctor after examined Sheeba, informed that she was
expired. PW1 has given Ext.P1, F.I.S. to the police regarding
this incident. PW13 has registered Ext.P1(a) F.I.R. on the
basis of information given by PW1 under the caption,
unnatural death. So PW1 has not witnessed any harassment
alleged to be caused to deceased Sheeba. PW6 has attested
the Ext.P2, scene mahazar. He had also not seen the alleged
incident. PW15 has not deposed anything regarding the
alleged harassment. So the evidence tendered by PWs 1, 6
and 15 will not help the prosecution to improve the alleged
cruelty and harassment subjected to deceased Sheeba at
matrimonial house.
17. The evidence of PW2 would show that at time of
marriage and proposal of marriage there was no demand for
dowry. He had provided 19½ sovereigns of gold ornaments
to deceased Sheeba at the time of her marriage. After three
days of marriage he had visited the matrimonial house with
his neighbour namely Suresh for inviting them 'Salkaram'. At
that time Sheeba told him that A1 and A2 harassed her by
demanding 15 sovereigns of gold more. Then after 10­15 days
A1 and Sheeba came to his house for 'Salkaram' and at that
time he had not seen any ornaments provided to her except
'Tali'. PW1 further swear that his brother­in­law, PW5 went to
the house of accused for invite them for 'Salkaram', but they
did not visit his house because of scarcity of gold provided.
Further swear that PW1 went to the house of accused with

Crl. Appeal No.1144 of 2016​ 17

PW5 and talk the matter with them at that time also accused
had made demand more gold ornaments. Further swear that
when Sheeba became pregnant PW3 and wife of PW5 had
been visited the house of accused and at that time also A1
and A2 had made demand 15 sovereigns of gold ornaments
and told that they will not send Sheeba to her house if the
above said gold ornaments were not provided. Then PW2 has
purchased three bangles of gold having four sovereigns for
amount of Rs. 34,000/­ from S.S. Jewellery and provided
to them. Thereafter he has brought Sheeba to his house for
delivery.
18. PW3 has adduced evidence in the same line that of
PW2 and she further deposed that when she went to the
house of accused with wife of PW5 and PW7 before three
days of death of Sheeba the accused refused to see the baby
and A1 told that nobody need to visit their house without
giving gold ornaments. Then A1 has put deceased Sheeba in
a room and closed. Then A2 has dragged out Sheeba from
the room and toned her blouse and said that there is scar of
enchantment done at her house. But PW3 does not see any
scar on her back as he said. Therefor the evidence PW3 also
clearly shows that the accused, particularly A1 and A2
mentally and physically harassed deceased Sheeba at their
house.
19. PW5 has also adduced evidence in the same line that
of PW2 and PW3. He would swear that he had visited the
matrimonial house to enquire about harassment caused to
Sheeba due to scarcity of gold ornaments and he had
discussed the matter with A2. And at that time A2 told about
the scarcity of gold provided at the time of marriage. He
further swear that five sovereigns of gold ornaments
provided to Sheeba from his house as gift at the time of her
marriage. PW10, Tahsildar has recorded the statement of PW5
at the time of preparation of inquest of deceased Sheeba, at
Government Hospital, Vatakara. At that time also, PW5 has
stated to the Tahsildar that deceased Sheeba had been
subjected harassment for gold at the matrimonial house. In
cross examination PW5 has deposed that 35 sovereigns of
gold ornaments were provided to deceased Sheeba at the
time of marriage. It is come out in evidence that the gold
ornaments provided to deceased Sheeba was 24½ sovereigns

Crl. Appeal No.1144 of 2016​ 18

including five sovereigns of gold ornaments provided by
PW5. So the testimony of PW5 that she was provided 35
sovereigns is not correct. PW5 being an uncle of the
deceased he may not have exact knowledge regarding
sovereigns of gold ornaments provided at the time of
marrige. In my view that is not the reason to disbelieve entire
evidence of PW5. So the evidence of PW5 also disclosed that
Sheeba was subjected to harassment for gold ornaments by
accused.
20. PW4 was the wife of A3. At the time of incident she
was residing in the matrimonial house along with accused.
She has adduced evidence in the same line that there was
harassment by demanding gold ornaments at the
matrimonial house. She further deposed that A1 had
assaulted deceased Sheeba by saying scarcity of gold. But in
cross examination she deposed that she had not seen A1
assaulted Sheeba. According to her she has hear say
knowledge about that fact from deceased Sheeba. Accused
have a case that at the time of marriage PW4 was provided 48
sovereigns of gold ornaments and Sheeba had some
inferiority complex in providing less ornaments to her. But
PW4 in cross examination has denied that fact and she told
that deceased Sheeba had 24 sovereigns of gold ornaments
and she had no such inferiority complex. So the evidence of
PW4 also supported the prosecution case that Sheeba was
caused to harassment at matrimonial house. PW7 who is the
sister of deceased Sheeba has adduced evidence to the effect
that when the deceased Sheeba came to her house for
Salkaram and brought her for delivery, told about the
harassment she had subjected at matrimonial house. In
corroborate with testimonies of PWs 2 and 3, PW8 who is
associate with S.S. Jewellery has deposed that PW2 has
purchased four sovereigns of gold ornaments worth
Rs.34,000/­ from S.S. Jewellery on April 2006 to provide his
daughter. Therefore the evidence of PWs 2 and 3 that they
had purchased four sovereigns of gold ornaments before
deceased Sheeba brought for delivery is supported by the
evidence of PW8. So on going through the testimonies of
PWs 2, 3, 4, 5 and 7, I find no material dent to disbelieve their
testimony regarding the harassment caused to deceased
Sheeba at matrimonial house by accused especially A1 and
A2.”

Crl. Appeal No.1144 of 2016​ 19


​ 12.​ In this case, pursuant to the death of Sheeba on
11.10.2006, an autopsy on her body was conducted by PW9, the
Medical Officer, Department of Forensic Medicine, Medical
College Hospital, Kozhikode, who gave evidence in support of
the postmortem certificate issued by him, and Ext. P3
postmortem certificate was tendered in evidence through him. .
On his examination, he had deposed in support of Ext.P3 and
the following injuries were noted by him:
“1) A pressure abrasion 22x2­0.8 cm, oblique,
discontinuous on the back of neck, is seen around the
sides and front of neck. The base of the pressure abrasion
is brownish parchmented over the right half of neck and
wider over the right half. On the left half, the pressure
abrasion seen as two thin bands each 0.5 cm thick,
separated by a thin band of normal looking skin. The left
end of the pressure abrasion is placed 6cm below and 3cm
front of the external occipital protuberance. The pressure
abrasion then descends to the left side of neck where the
upper extent is placed 4cm below the left mastoid
process, descending further where the upper extent is
placed 3cm below the left angle of mandible. There as it
goes to the front of neck, the pressure abrasion starts a
gradual ascent and at front midline of neck, the lower
extent of the pressure abrasion passes above the level of
the thyroid cartilage and is placed 8cm above the jugular
notch. Thereafter the pressure abrasion continues to
ascend to the right side of neck when the upper extent is
placed 0.5cm below the right angle of mandible and the
right end of the pressure abrasion is placed 2cm behind
and at the level of the right angle of mandible. There is a
gap of 17cm between the two ends of the pressure

Crl. Appeal No.1144 of 2016​ 20

abrasion. The circumference of the neck measured 34cm,
just below the level of the pressure abrasion.
2). ​ A spot of pressure abrasion 0.3x0.2cm was seen
on the under aspect of the right half of lower jaw 1.5cm in
front of the right half of the pressure abrasion.
3). ​ Contused abrasion (fresh) 0.5x0.5 cm each seen
on both sides of the top aspect of the lower lip,
immediately posterior to the mucocutaneous junction
(inner aspects of lips – see external findings.) . Fine
contused abrasion (fresh), red in colour, seen involving
the entire length of the lower lip.
4). ​ Contusion (fresh) 4x1­0.5 cm partial scalp
thickness (not involving the pericranium) slightly raised
above skin surface, red in colour, obliquely placed over
the middle of forehead, upper right end 3 cm above inner
end of right eyebrow and 1.5cm outer to midline and lower
left end 1.5cm above the inner end of left eyebrow and
2cm outer to midline.
5). ​ Two old healed scars 0.3x0.3cm and 0.2x0.2cm
size over the middle of the neck in the neck fold.
6). ​ Fine pin­point size abrasion, scab formed, over
an area 12x7cm on the front and inner side aspect of the
right arm, lower extent 2.5cm above Elbow.
7).​ Superficial contusion (fresh) 1.5x1cm, red in
colour on the back aspect of the right forearm, 6cm above
wrist.
8).​ Superficial contusion (fresh) 1.5x1cm (red) on
the front aspect of the left arm 8cm axilla.
9). ​ Superficial contusion (fresh) 2x0.5cm
(horizontally placed) (red) on the front and outer side
aspect of the left arm, at the same level on the upper end
of previous injury.
10.​ Superficial contusion (fresh) 0.1x0.1cm (red) on the
front aspect of the right leg,3cm below knee.
11.​ Abrasion (fresh) 0.1x0.1cm on the back chest at
midline, 12cm below root of neck.
​ 12. ​ Infiltration of blood into the fibres of the pelvic
diaphragm (fresh), the two slings of the puborectalis
muscles, more on the left, with a few areas of ruptured

Crl. Appeal No.1144 of 2016​ 21

fibres of the pelvic diaphragm seen behind the rectum, in
front of the sacral promontory.
13. ​ Scattered areas of contusion on the top surface
of liver and “fluffy” haemorrhages on the undersurface of
both lungs (over areas adjoining the diaphragm).”

13.​ Now the question that falls for consideration is
whether the evidence of PWs.2 to 5, PW7 and PW8 supported by
the medical evidence as that of PW9 and PW14 sufficiently
prove the ingredients for the offences punishable under
Sections 498A as well as 304B of IPC. Another question arises is
whether Sheeba committed suicide due to postpartum
phychosis as opined by DW1 who had occasion to treat her for
the disease.
​ 14.​ Here, appellants raised a contention before the trial
court that Sheeba suffered ‘postpartum psychosis’ after her
delivery and the depressive episodes of psychotic symptoms
led her to commit suicide. In order to substantiate the said
case, DW1, Dr. Rajagopalan K.K, was examined on the side of
defence and Ext.D1 was let in evidence. DW1 deposed that on
the date of his examination, he had been working as
Psychiatrist in District Mental Health Programme, Kannur
district and he had qualifications viz, MBBS, D.P.M (Diploma in

Crl. Appeal No.1144 of 2016​ 22

Psychological Medicine). According to him, he had served as
the Consultant Psychiatrist in Mental Hospital, Kozhikode from
2000-2005 and also doing the same job in various other
hospitals, after retirement, including Co-operative Hospital,
Kannur and also in connection with the Mental Health
Programmes. His evidence is that, Ext.D1 is the document
showing treatment of Sheeba by him. According to him, on
04.09.2006, Narayanan, father of Sheeba and Biju, husband of
Sheeba, brought her before him. He deposed further that
‘postpartum psychosis’ was the disease to her, when he had
examined Sheeba, one year after the marriage having a child aged 2½
months. Loss of sleep, unhappiness, fear, no interest in taking food,
and crying are the symptoms he noted and based on which, he found
her disease as ‘postpartum psychosis’. DW1 specifically deposed that
persons with severe postpartum psychosis are having tendency to
commit suicide and also inclination to kill children. He deposed
further that the patients of this stature, if not given proper
treatment, their condition would become very severe. He also
deposed about the medicines given to her as Andideep-25 mg,
Sizodon-1 mg, tabile lorel-2 mg for treatment. According to him, she
was advised to meet him after one month. But, she did not come
back. Then, on 01.01.2007, Biju and his father met him and asked for

Crl. Appeal No.1144 of 2016​ 23

a certificate informing him that Sheeba committed suicide on
11.10.2006 in her husband’s house. Accordingly, he had issued Ext.D1
certificate dated 01.01.2007. He also deposed that in Ext.D1, some
entries were made on the reverse side and the same is marked as
Ext.D2.
15.​ According to him, patients with postpartum psychosis
may have extreme mood swings and hallucinations apart from
depression and delusion. He deposed further that, 1/500 ladies may
show this disease, after pregnancy. It may either be mild or severe.
He also deposed that, they should take medicines to reduce the same
and only after reviews, the variations could be assessed. According
to him, he used to prepare reports regarding the patients treated by
him and, in that regard, he had prepared Ext.D1. During
cross-examination, he stated that he did not state the name of the
deceased in Ext.D1. It is true that Exts.D1 and D2 are documents
issued by the doctor only on 01.01.2007, after the death of Sheeba.
But the evidence of DW1 supported by Ext.D1 showing postpartum
psychosis is a matter to be considered while weighing the reasons for
committal of suicide by Sheeba, as there is no reason for DW1 to tell
lie before the Court.
16.​ In the decision reported in Ajayakumar and Another v.
State of Kerala (2022 KHC OnLine 596) , in paragraph nos. 17 to 32,
this Court considered the essential ingredients necessary to

Crl. Appeal No.1144 of 2016​ 24

constitute an offence punishable under Section 304B of IPC and held
as under:
“17. Before addressing the question as to whether the
findings entered into by the trial court is justifiable, it is
worthwhile to discuss the essentials required to constitute
offences under Section 304B as well as 306 of I.P.C. Section 304
of I.P.C. deals with dowry death. Section 304B of I.P.C. is
extracted hereunder:
" 304B. Dowry death. -- (1) 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.
Explanation. For the purposes of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life."
18. Thus the ingredients to constitute an offence under Section
304B are:
(a) There was an unnatural death of a woman;
(b) that woman had been married within 7 years preceding her
aforesaid unnatural death, and
(c) soon before her death she was subjected to cruelty or
harassment. Again
(i) such cruelty or harassment had been caused to her by her
husband or husband's other relative;
(ii) that such cruelty or harassment was for or in connection
with any demand for dowry.
In all dowry death cases the standard of appreciation of
evidence has to be in the light of the provisions contained in
Section 113A of the Evidence Act.

Crl. Appeal No.1144 of 2016​ 25

19. It is relevant to note that when an offence under Section
304B of I.P.C. is alleged, the same has a proximate nexus with
Section 113B of the Evidence Act, 1872 which reads as follows:
"Section 113B: Presumption as to dowry death;-- When the
question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry,
the Court shall presume that such person had caused the
dowry death.
Explanation:-- For the purposes of this section, "dowry death"
shall have the same meaning as in section 304B of the Indian
Penal Code (45 of 1860)."
20. Section 113B of the Evidence Act in the later part mandates
drawing of presumptions that the husband or relative of the
husband of the victim girl have caused her death and this
presumption of dowry death corresponds to presumption as to
dowry death envisaged in Section 113B of the Evidence Act,
1872. Section 304B(1) of the I.P.C., 1860 has 2 limbs. First limb
defines dowry death and the second limb deals with the legal
consequence of occurrence of dowry death namely, that the
husband or such other relative of the husband who soon before
the death of the lady was found to have subjected the lady to
cruelty or harassment shall conclusively be held to be guilty of
the offence of dowry death. In the decision reported in [2015
(8) Scale 270 : AIR 2015 SC 3043 : 2015 Crl.J 4021 (SC)], V.K.
Mishra v. State of Uttarakhand, a 3 Judge Bench of the Apex
Court while dealing with Section 304B of IPC and 113B of the
Evidence Act, inter alia, held, after referring another decision
reported in [AIR 2015 SC 980], Shersing alias Partapa v. State
of Haryana that the word 'shown' instead of 'proved' in
Section 304B of I.P.C. indicates that the onus cast on the
prosecution would stand satisfied on the anvil of a mere
preponderance of probability. In other words, 'shown' would
have to be read upon to mean 'proved', but only to the extent
of preponderance of probability. It was held further that in a
case of demand for dowry, independent and direct evidence
with regard to the occurrence is ordinarily not available. That
is why the legislature had introduced Section 113A and 113B in
the Evidence Act by permitting presumptions to be raised in
certain circumstances.

Crl. Appeal No.1144 of 2016​ 26

21. In another decision of the Apex Court reported in [AIR 2016
SC 5313 : 2016 KHC 6768] Baijnath & Ors. v. State of Madhya
Pradesh , the Apex Court considered the legislative mandate to
invoke the presumption under Section 113B of the Evidence
Act and held as under:
"33. A conjoint reading of these three provisions, thus
predicate the burden of the prosecution to unassailably
substantiate the ingredients of the two offences by direct and
convincing evidence so as to avail the presumption engrafted
in S. 113B of the Act against the accused. Proof of cruelty or
harassment by the husband or her relative or the person
charged is thus the sine qua non to inspirit the statutory
presumption, to draw the person charged within the coils
thereof. If the prosecution fails to demonstrate by cogent
coherent and persuasive evidence to prove such fact, the
person accused of either of the above referred offences cannot
be held guilty by taking refuge only of the presumption to
cover up the shortfall in proof.
34. The legislative premature of relieving the prosecution of
the rigour of the proof of the often practically inaccessible
recesses of life within the guarded confines of a matrimonial
home and of replenishing the consequential void, by according
a presumption against the person charged, cannot be
overeased to gloss - over and condone its failure to prove
credibly, the basic facts enumerated in the Sections involved,
lest justice is the casualty.
35. This Court while often dwelling on the scope and purport
of S. 304B of the Code and S. 113B of the Act have propounded
that the presumption is contingent on the fact that the
prosecution first spell out the ingredients of the offence of S.
304B as in Shindo Alias Sawinder Kaur and another Vs. State of
Punjab - 2011 (11) SCC 517 and echoed in Rajeev Kumar Vs.
State of Haryana - 2013 (16) SCC 640. In the latter
pronouncement, this Court propounded that one of the
essential ingredients of dowry death under S. 304B of the Code
is that the accused must have subjected the woman to cruelty
in connection with demand for dowry soon before her death
and that this ingredient has to be proved by the prosecution
beyond reasonable doubt and only then the Court will
presume that the accused has committed the offence of dowry
death under S. 113B of the Act. It referred to with approval, the
earlier decision of this Court in K. Prema S. Rao v. Yadla
Srinivasa Rao - 2003 (1) SCC 217 to the effect that to attract the

Crl. Appeal No.1144 of 2016​ 27

provision of S. 304B of the Code, one of the main ingredients of
the offence which is required to be established is that "soon
before her death" she was subjected to cruelty and harassment
"in connection with the demand for dowry".
22. Similarly, in another decision reported in [AIR 2014 SC 227 :
2013 (13) Scale 410], Rajeev Kumar v. State of Haryana , the
Hon'ble Supreme Court referred another decision reported in
[AIR 2003 SC 11], K. Prema S. Rao & anr. v. Yadla Srinivasa
Rao & ors. and held as under:
"One of the main ingredients of the offence of dowry death
under section 304B of the Indian Penal Code, 1860 which is
required to be established is that "soon before the death" the
accused must have subjected a woman to cruelty in
connection with demand of dowry."
23. In the decision reported in [2015 SC 1359], Rajinder Singh
v. State of Punjab , the Apex Court held that "soon before" in
Section 304B, is not synonymous with "immediately before".
The same proposition is laid by the Apex Court in another
decision reported in [AIR 2021 SC 2627 : 2021 KHC 6284], Satbir
Singh & anr. v. State of Haryana.

24. In the decision reported in [AIR 2004 SC 1714], Baljeet
Singh v. State of Haryana the Apex Court set out the
condition precedent for establishing offence under Section
304B of I.P.C. as under:
a) That a married woman had died otherwise than under
normal circumstances;
b) such death was within 7 years of her marriage; and
c) the prosecution has established that there was cruelty and
harassment in connection with the demand for dowry soon
before her death.
25. In another decision reported in [AIR 2009 SC 913], Baldev
Singh v. State of Punjab the expression "soon before her
death" used in the substantive section of 304B of I.P.C. and
Section 113B of the Evidence Act is present with the idea of
proximity test. No definite period has been indicated and the
expression "soon before" is not defined. A reference to
expression "soon before" in Section 114 illustration (a) of the
Evidence Act is relevant. It lays down that a man who is in the
possession of goods "soon after theft" is either the thief or has

Crl. Appeal No.1144 of 2016​ 28

received the goods knowing the same to be stolen, unless he
can account for his possession. The determination of the
period which can come with the term 'soon before' is left to be
determined by the courts depending upon facts and
circumstances of each case. Suffice, however, to indicate that
the expression "soon before" would normally imply that the
interval should not be much between the concerned cruelty or
harassment and the death in question.
26. In the same decision, in para. 17 it was observed as under:
"The law on Section 304B IPC and Section 113B of the Evidence
Act has been pithily summarised as follows:
(1) Section 304B IPC must be interpreted keeping in mind the
legislative intent to curb the social evil of bride burning and
dowry demand.
(2) The prosecution must at first establish the existence of the
necessary ingredients for constituting an offence under
Section 304B IPC. Once these ingredients are satisfied, the
rebuttable presumption of casualty, provided under Section
113B of the Evidence Act operates against the accused.
(3) The phrase "soon before" as appearing in Section 304B IPC
cannot be construed to mean "immediately before". The
prosecution must establish existence of "proximate and live
link" between the dowry death and cruelty or harassment for
dowry demand by the husband or his relatives.
(4) Section 304B IPC does not take a pigeonhole approach in
categorising death as homicidal or suicidal or accidental. The
reason for such non-categorisation is due to the fact that death
occurring "otherwise than under normal circumstances" can,
in cases, be homicidal or suicidal or accidental."
27. In the said judgment while confirming the conviction
imposed by the trial court and the High Court under Section
304B and under Section 498A of I.P.C., the Apex Court also
upheld acquittal found by the High Court under Section 306 of
I.P.C.
28. In another decision reported in [2022 Cri.LJ 2545 : AIR
OnLine 2022 SC 577], Devender Singh and Ors. v. State of
Uttarakhand , another 3 Bench decision, the Apex Court
considered the ingredients of Section 304B of I.P.C. within the
ambit of Section 113B of the Evidence Act and finally
confirmed conviction imposed against the husband under

Crl. Appeal No.1144 of 2016​ 29

Section 304B of I.P.C. while acquitting appellants 2 and 3 on the
finding that there is no specific role with regard to the demand
of dowry and nor any specific instances of cruelty and
harassment been ascribed to the appellants 2 and 3 except for
the general assertion against appellants 2 and 3.
29. In a latest decision of the Apex Court reported in [ (2022) 5
SCC 401], State of Madhya Pradesh v. Jogendra & anr ., 3
Bench of the Apex Court considered the menace of dowry
death while dealing with a case alleging commission of
offences under Section 304B, 498A and Section 306 of I.P.C. In
the said case also the Apex Court in para. 9 set forth the
following as the most fundamental constituent for attracting
the provisions of Section 304B of I.P.C.
(i) that the death of a woman must have been caused by burns
or bodily injury or occurred otherwise than under normal
circumstance;
(ii) that such a death must have occurred within a period of
seven years of her marriage;
(iii) that the woman must have been subjected to cruelty or
harassment at the hands of her husband, soon before her
death; and
(iv) that such a cruelty or harassment must have been for or
related to any demand for dowry.
30. Thus when the four essentials required to prove offence
under Section 304B, viz; (i) death of a woman should have
occurred otherwise than under normal circumstances (ii)
within 7 years of her marriage; (iii) soon before her death she
should have been subjected to cruelty or harassment by the
accused, and (iv) in connection with any demand for dowry to
presume that the accused has committed dowry death.
31. Once the prosecution succeeded in establishing that the
death of the lady was the outcome of cruelty or harassment by
her husband or any relative of her husband soon before her
death within a period of 7 years of her marriage, if the accused
wants protection from the said catch, the burden is on him to
disprove and if he fails to rebut the presumption under Section
113B of the Evidence Act, the court is bound to act on it. To put
it differently, Section 113B of the Evidence Act, casts a reverse
burden on the accused to disprove the prosecution case. Then
the question is; what is the standard of proof in cases
involving reverse burden? The Apex Court considered the

Crl. Appeal No.1144 of 2016​ 30

same in the decision reported in [ (2008) 16 SCC 417 : 2008 KHC
5054], Noor Aga v. State of Punjab & anr. , while interpreting
the provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985, wherein also a reverse burden is cast
upon the accused. In this judgment, the Apex Court considered
the draconian provisions in the NDPS Act and it was held that
though the Act contains draconian provisions, it must,
however be borne in mind that the Act was enacted having
regard to the mandate contained in international conventions
on narcotic drugs and psychotropic substances. Only because
the burden of proof under certain circumstances is placed on
the accused, the same, by itself, would not render the
impugned provisions unconstitutional. It was concluded in the
said judgment that Sections 35 and 54 are not ultra-vires the
Constitution of India and ultimately it has been held that the
constitutionality of a penal provision placing burden of proof
on the accused must be tested on the anvil of the State's
responsibility to protect innocent citizens. Even then, an
initial burden exists upon the prosecution and only when it
stands satisfied, the reverse burden would arise and the
standard of proof required to prove the guilt of the accused on
the prosecution is 'beyond all reasonable doubt'. But it is
'preponderance of probabilities' on the accused. Thus the law
is clear on the point that proof of reverse burden shall be
discharged on the basis of 'preponderance of probabilities'.
32. In the decision reported in [AIR 2001 SCC 2828], Satwir
Singh v. State of Punjab , the Apex Court considered the
meaning of dowry and it was held that some customary
payment in connection with birth of a child or other
ceremonies are prevalent in different societies. Such payments
are not enveloped within the ambit of "dowry". Hence, the
dowry mentioned in Section 304B should be any property or
valuable security given or agreed to be given in connection
with the marriage.”

17.​ Here, as already extracted, when PW2 reached the
house of accused Nos. 1 and 2 on the third day of the marriage,
Sheeba informed him about certain difficulties arising out of the
demand for gold ornaments and the further demand for 15

Crl. Appeal No.1144 of 2016​ 31

sovereigns of gold. He also stated in his evidence that, whenever
he used to meet his mother at the matrimonial home, they would
say that the gold was insufficient. It was further deposed that,
when they demanded that Sheeba be sent back for delivery, they
also demanded 15 sovereigns of gold ornaments for the same.
Here, the evidence of PW2 does not disclose any instance of
mental or physical cruelty in any other form, apart from the
demand for 15 sovereigns of gold ornaments.
18.​ It is strange to note that even when PW2 and his
family requested that Sheeba be sent back for delivery, the
accused demanded 15 sovereigns of gold, which appears to be
unusual. Commonly when demand for more gold ornaments or
dowry is not heeded, the immediate response should be to send
the wife back to her house. It is true that PW3, the mother of
Sheeba also deposed that, on the 3rd day, when she reached her
house from the matrimonial home, also she had stated that gold
was insufficient as stated by the husband’s family. She further
stated that, after 10–15 days, when Sheeba returned to her house,
she again reiterated the insufficiency of gold and the harassment
allegedly caused to her by accused Nos. 1, 2 and 4. PW2 and PW3

Crl. Appeal No.1144 of 2016​ 32

had a case that before three days of the death of Sheeba, when
they reached the matrimonial home, they were not permitted to
hold the child unless the remaining gold was given. The second
accused caught hold of Sheeba and tore her blouse and spoke
about a mark ( കല ) on her back.
19.​ According to PW5, after one month of the marriage,
he, along with PW2, reached the matrimonial home, where he
was informed that the appellants were harassing Sheeba on the
ground of insufficiency of gold. According to him, the second
accused asked why the gold ornaments had been reduced and
demanded 50 sovereigns of gold. However, the evidence of PW1,
PW2 and PW3 was to the effect that the additional gold
ornaments demanded were 15 sovereigns, whereas, according to
PW5, the demand was for 50 sovereigns.
20.​ In this case, during the month of March, Sheeba was
taken to the house of PW2 and PW3 i.e. her own home for delivery
as deposed by PW2, PW3 and PW7. It is relevant to note that they
also given evidence that Sheeba was brought to her house during
the 7th month as usual, for delivery. According to PW3, she reached
the matrimonial home 10 - 18 times during the pregnancy of Sheeba

Crl. Appeal No.1144 of 2016​ 33

and that Sheeba had delivered a matured child. She further deposed
that Rs.5,000/- was given by the first accused towards the expenses
of the child . As could be seen from the available evidence that
before taking Sheeba to her house for delivery, she had resided
along with the first accused and other accused at the
matrimonial home. She also deposed that after the return of
Sheeba for the purpose of delivery in the 7th month, the first
accused brought her back to the matrimonial home to facilitate
their living together. But, according to PW2, it was done to do the
work of the home.
21.​ Here comes the significance of the relevant aspect,
that is to say, if a wife would be subjected to cruelty in any form,
she usually would hesitate to go back to the matrimonial home
by relinquishing her advantage to remain in her own house. Only
when the husband is so affectionate and merciful to the wife, she
may go back to the matrimonial home without staying in her own
house, awaiting delivery.
22.​ It is relevant to note further that as argued by the
learned counsel for the appellants, in this case, as deposed by
PW2, his statements were recorded by the police three times.

Crl. Appeal No.1144 of 2016​ 34

According to PW3, her statement was recorded by the police on
the date of death itself. But, according to the learned counsel,
the above statements were not produced by the Investigating
Officer and 161 statements of PW2, PW3, PW7 and PW8 earlier
recorded were suppressed by the Investigating Officer. PW17
investigated the case from 15.10.2006 onwards. Similarly, PW18
also investigated this crime before it was investigated by PW19
on 06.02.2013. It was only on 11.09.2013, Ext.P12 report was filed
by PW19 incorporating offences under Sections 354, 498A and 306
of IPC. Thus, it could be seen that many previous statements
were not made available to the accused so as to make the same to
contradict the makers thereof, to elicit the truth of the
allegations.
23.​ It is true that when a wife dies at the matrimonial
home, direct evidence to establish the acts of cruelty may not be
available. Therefore, the attending circumstances, in the form of
circumstantial evidence and certain overt acts during their
married life, in the form of direct evidence available, to be
considered to ascertain whether the allegations of cruelty
demanding more dowry to be found. At the same time, when two

Crl. Appeal No.1144 of 2016​ 35

views are possible on the basis of the evidence available, the
view favourable to the accused has to be adopted in the interest
of justice, particularly when the prosecution case is not fully free
from doubts.
24.​ On evaluation of the incriminating materials spoken
by PWs.2 to 5, PW7 and PW8, the demand for more gold and
creation of hazards, without disclosing what mode of hazards in
the form of a bald allegations spoken by them. Then the overt
acts of cruelty are confined to mere general allegations without
pointing out anything in detail. At the same time, the intimacy
between Sheeba and the first accused is discernible as already
discussed. Similarly, the evidence let in by DW1 supported by
Ext.D1 would show medical consultation of Sheeba on 04.09.2006
with postpartum psychosis when she was brought back to the
matrimonial home, after the delivery along with the child. Thus
whether Sheeba committed suicide due to postpartum psychosis
or due to hazards created by the accused persons is a matter
moulded with doubts. If so, the allegation that cruelty by the
appellants led to committal of suicide by Sheeba could not be
found beyond reasonable doubts.

Crl. Appeal No.1144 of 2016​ 36

25.​ In such circumstances, this Court is of the considered
view that the appellants herein are entitled to the benefit of
doubt in the facts of this case, as discussed in detail hereinabove.
Be it so, the conviction and sentence imposed by the learned
Sessions Judge against the appellants would not sustain and the
same are liable to be set aside.
In the result, the criminal appeal is allowed. The impugned
judgment is set aside. The appellants/accused 1 and 2 are
acquitted for all the offences and are set at liberty forthwith and
their bail bonds are cancelled.
Registry is directed to forward a copy of the judgment to
the learned Sessions Judge for information.

Sd/-

A. BADHARUDEEN
JUDGE
Sbna/