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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SEMESTER III

LAW OF CRIMES I
PROJECT-II

PREM KANWAR. V. THE STATE OF RAJASTHAN

SUBMITTED TO
Ms. Divya Salim

SUBMITTED BY
Ashutosh Ku. Doharey
(2019BALLB95)

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

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CERTIFICATE

“This is to certify that the case analysis–“PREM KANWAR. V. THE STATE OF

RAJASTHAN” has been prepared and submitted by Ashutosh Doharey who is currently
pursuing their BALLB at National Law Institute University, Bhopal in fulfilment of Family
Law I course. It is also certified that this is an original case analysis and this has not been
submitted to any other university, nor published in any journal”.

Date-
Signature of the student-
Signature of Research Supervisor-

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ACKNOWLEDGEMENT

“The project has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Ms. Divya Salim for guiding me
throughout the development of this paper into a coherent whole by providing helpful insights
and sharing her brilliant expertise. I would also like to thank the officials of the Gyan Mandir,
NLIU for helping us to find the appropriate research material for this study”.
I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.

Ashutosh Doharey
2019BALLB95

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

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TABLE OF CONTENTS

CERTIFICATE....................................................................................................................2

ACKNOWLEDGEMENT...................................................................................................3

TABLE OF CONTENTS.....................................................................................................4

NAME OF THE CASE........................................................................................................5

DATE CITATION OF THE JUDGEMENT.......................................................................5

TYPE OF BENCH...............................................................................................................5

NAME OF THE JUDGES...................................................................................................5

NUMBER & TYPE OF OPINION/S..................................................................................5

AUTHOR OF THE JUDGEMENT.....................................................................................5

COUNSELS REPRESENTING THE PARTIES................................................................5

INTRODUCTION& BACKGROUND...............................................................................6

FACTUAL MATRIX..........................................................................................................8

ISSUES................................................................................................................................9

CONTENTIONS.................................................................................................................9

PROVISIONSOFSTATUTES CITED..............................................................................10

DOCTRINES/THEORIES INVOKED.............................................................................11

LITEREATURE CITED....................................................................................................11

PRECEDENTS CITED.....................................................................................................11

JUDGEMENT...................................................................................................................13

REASONING....................................................................................................................14

CRITICAL ANALYSIS AND CONCLUSION................................................................16

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NAME OF THE CASE

PREM KANWAR. V. THE STATE OF RAJASTHAN

DATE CITATION OF THE JUDGEMENT

07TH JAN.2009, AIR2009SC 1242

TYPE OF BENCH

IT WAS A CRIMINAL APPEAL BEFORE A DIVISION BENCH OF THE SUPREME COURT.

NAME OF THE JUDGES

Justice Dr. Arijit Pasayat, Justice Mukundakam Sharma

NUMBER & TYPE OF OPINION/S

THE BENCH GAVE UNANIMOUS OPINION

AUTHOR OF THE JUDGEMENT

JUSTICE DR ARIJIT PASAYAT.

COUNSELS REPRESENTING THE PARTIES

APPELLANT: -

Adv. Doongar Singh, Anupam Mishra and V.J. Francis

RESPONDENT: -

Adv. Naveen Kumar Singh and Aruneshwar Gupta

INTERVENORS/ AMICUS: - NA

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INTRODUCTION& BACKGROUND

In India and other Asian cultures, the dowry system, offering cash and kinds from the bride's
family to the husband or groom's family at the time of marriage, has a long tradition. “The aim
of this practice was to help new couples happily start their lives. Its connection with socio-
economic stratification is one aspect of the dowry system in general, which relates uniquely to
India”1. Dowry helps in perpetrating these differences over centuries mainly with these reasons:
(i) The primary position of a woman as a mother and daughter with restricted outside marriage
opportunities.
(ii) A daughter who remains unmarried after a certain age and whose parents face social costs
(iii) Divorce is almost nonexistent.
(iv) Females are typically refused inheritance rights.
(v) Weddings are designed to largely reflect the wishes of the parents through the parents of the
brides and grooms2.
As a result of the legal issues dowry has become more private and confined to both families.
Today due to a changed economy, the practice of dowry, “which was once limited among some
communities, has become customary across caste and class groups in India”. The desirability of
consumer goods has been increased by modernization; parents of daughters see dowry as an
opportunity for status claims to be made and their conjugal families to ensure good treatment of
their daughters. “Traditionally, dowry items mainly consisted of clothing and household items,
but because of competition for a better groom' they have now been replaced by cash or large
consumer goods. Although in many cases the custom of dowry has become a source of serious
threats to women's lives, it paradoxically receives support not only from society, but also from
women themselves”. It was prohibited in 1961, but still continues in 2020,
In terms of physical and mental health degradation due to dowry related tensions, the rate of
morbidity is high. Familylevel tensions and related abuse play an important role in deciding
many women and children's social and health circumstances. “Owing to the inferior
consideration of women and disputes within the household, there are instances of inadequate

1
Women’s Empowerment and Prevalence of Stunted and Underweight Children in Rural India”, World
Development, 62(10), pp.88-105
2
What factors can explain the rise and inter-state variation in crimes against women in India? GDI
(Manchester)

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use of ante-natal care and child vaccination. The issues of female foeticide, elevated infant
mortality, maternal mortality, female and female child malnutrition should also be read
sequentially”. Little evidence is accessible in public because of social issues and the victims
most of time are not able to get justice.
In this case, Smt.Raju (hereinafter referred to as the deceased) married with one Krishnalal,
Krishnalal lodged a complaint that his wife committed suicide and was found dead when he
came in the house.
During the time of investigation, Bachna Ram, father of the deceased lodged a report stating
that all the three accused (Krishnalal the husband of the deceased, Puran Chand is the Uncle-
in-law and Prem Kanwar, the present appellant, the mother-in-law) have murdered the deceased
by burning her and they used to harass and torture because of dowry was not given to them.
After the trial In Session court, the Judge acquitted all the accused stating that precaution was
not able to prove its case beyond all reasonable doubts. After the appeal in the High Court,
High Court convicted all the accused stating that the possibility that before burning the
deceased was murdered was clear from the evidence. The Appellant approached this court
stating the the decision of High Court was wrong and the deceased died by committing suicide.

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FACTUAL MATRIX

“On 23-04-1988 at about 2.05 p.m., the accused Krishnalal lodged an oral report Ex.P/12
before Jagmalram (PW-11) SHO, Police Station Purani Abadi, Sri Ganganagar stating that he
was married with Smt. Raju, (the deceased) in the year 1984 and he was living with his mother
Prem Kanwar, the present appellant and uncle Puran Chand”. “On that day, he went out from
his house for some work and when he returned back at about 1.30 p.m. he found crowd near his
house and also found fire in his house and people were extinguishing the fire and he came to
know that his wife, the deceased was burnt and had died and, therefore, he had come to inform
the police. Police registered the FIR No. 7/88 and started investigation”. The doctors in post
mortem report is Ex. P/3 opined that the cause of the death of the deceased was asphyxia due to
ante- mortem burns. PW 1 Bachna Ram, “father of the deceased, lodged a written report Ex.
P/1 on 26-4-1988 before police station Purani Abadi, Sri Ganganagar stating that all the three
accused have murdered his daughter (deceased) by burning her and he stated that all the three
accused used to harass and torture her because of dowry”.
On this report, police wrote FIR Ex. P/2 for the offence under Sections 306, 304B IPC and
started investigation, they submitted Charge Sheet against the accused respondents for the
offence under Sections 306, 304B IPC in the court of magistrate holding that it was a case of
dowry death. Thereafter, the case was committed to the Court of Session.
“Sessions Judge directed acquittal holding that it is a case of suicide by the deceased the death
of the deceased was caused due to burning and has taken place within seven years of the
marriage”. Prosecution has not been able to prove its case beyond all reasonable doubts against
the accused respondents for the offence under Sections 306 and 304B IPC and Section 4 of the
Dowry Prohibition Act. “After the Appeal in High Court, the High Court found that the
conclusion of the trial Court that the case was one of suicide was not established. The High
Court found that the possibility that before burning the deceased was murdered was clear from
the evidence”. The Court charged the accused for the murder of the deceased. The appellant has
approached the apex court for nullifying the decision gave by the High Court

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ISSUES

The question before the bench was, Does the injury suffered by the victim before the accidental
or natural death amounts to dowry related death?
Was this a case of Dowry related death or of a natural death?
Hence, the issue thus formulated was on a mixed question of Fact and Law.

CONTENTIONS

1. APPELLANT
a. Counsel for the appellant submitted that “considering the limited nature of the scope of
interference in a matter of acquittal, the High Court ought not to have interfered, particularly”,
when it found that the acquittal was in order so far as the other co-accused persons are
concerned.
b. It was submitted that the High Court's conclusion that the skull bones were broken,
“which rules out the case of suicide, is contrary to medical evidence. The High Court noted that
to bring in application of Section 304 Part B, it is immaterial whether the death is suicidal or
homicidal”.
c. The evidence of Dhanni Devi (PW-5) was not sufficient to fasten the guilt on the
appellant.

2. RESPONDENT
a. The respondents supported the judgment of the high court was correct, stating that the
ingredients to be satisfied under S.304B of IPC were met.
3. INTERVENORS/AMICUS
Not Applicable.

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PROVISIONSOFSTATUTES CITED

The current case cited many provisions from the following Statutes and provisions

1. Section:30 IPC 18603 This section explains about The words “valuable security” denote
a document which is, or purports to be, a document whereby any legal right is created,
extended, transferred, restricted, extinguished or released, or where by any person
acknowledges that he lies under legal liability, or has not a certain legal right.
2. Section:304 IPC 1860 Punishment for culpable homicide not amounting to murder “ It
Provides for the punishment for culpable homicide not amounting to murder which depend
upon the nature of that culpable homicide”.
3. Section:2 Dowry Prohibition Act, 19614 It defines ‘dowry’ which means that any
property or valuable security given or agreed to be given either directly or indirectly -
“(a) By one party to a marriage to the other party to the marriage; or (b) by the parents of either
party to a marriage or by any other person, to either party to the marriage or to any other
person, at or before or any time after the marriage”.
4. Section :3 in the Dowry Prohibition Act This acts deals with the penalty for giving or
taking dowry.
5. Section:114 The Indian Evidence Act, 1872: The section deals with the presumption that
the court has to make in specific case –“The Court may presume the existence of any fact
which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the
particular case”.
6. The Part B States (Laws) Act, 1951: The act deals with “(i)Extension and amendment of
certain Acts and Ordinances, (ii) Construction of references to laws not in force in Part B
States, Construction of references to authorities where new authorities have been constituted,
(iii) Repeals and savings, (iv) Power to remove difficulties”.

3
IPC 1860
4
DPA1961

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DOCTRINES/THEORIES INVOKED

No such doctrine or theory was invoked in the judgement.

LITEREATURE CITED

No literature of any kind was cited by the learned Judges.

PRECEDENTS CITED

The judgement cited 2 cases that were relevant to the case at hand: -
1) Ajit Savant Majagavi v/s State of Karnataka5
Here in this case the appellant was married to a young woman, by name, Padmavathi.
Padmavathi, came to live with the appellant in her new house where her parent-in-laws also
lived. She became the victim of mental torture and cruelty for being involved in extra marital
relationship, in this case with one Gundu Badasad. She became pregnant and after the delivery
stayed with her father, suddenly the appellant comes and says to take his wife and child with
him, he went in a lodge where the appellant strangulated his wife. The apex court convicted the
appellant and laid down some principles that would govern and regulate the hearing of appeal
by the High Court against an order of acquittal passed by the trial court.
(1) “In an appeal against an order of acquittal, the High Court possesses all the powers, and
nothing less than the powers, it possesses while hearing an appeal against an order of
conviction”.
(2) “The High Court has the power to reconsider the whole issue, reappraise the evidence and
come to its own conclusion and finding in place of the findings recorded by the trial court, if
the said findings are against the weight of the evidence on record, or in other words, perverse”.
(3) “Before reversing the findings of acquittal, the High Court has to consider each ground on
which the order of acquittal was based and to record its own reason for not accepting those
grounds and not subscribing to the view expressed by the trial court that the accused is entitled
to acquittal”.

5
1998 AIR (SC) 1328

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(4) “In reversing the finding of acquittal, the High Court has to keep in view the fact that the
presumption of innocence is still available in favour of the accused and the same stands
fortified and strengthened by the order of acquittal passed in his favour by the trial court”.
(5) “If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on
record, is of the opinion that there is another view which can be reasonably taken, then the view
which favours the accused should be adopted”.
(6) “The High Court has also to keep in mind that the trial court had the advantage of looking at
the demeanour of witnesses and observing their conduct in the Court especially in the witness-
box”.
(7) “The High Court has also to keep in mind that even at that stage, the accused was entitled to
benefit of doubt. The doubt should be such as a reasonable person would honestly and
conscientiously entertain as to the guilt of the accused”.

2) Pawan Kumar & Ors vs State Of Haryana6

Here Urmil (deceased) and appellant were married. Appellant was working at Lucknow and
had later shifted to Sonepat. Within a few days of the marriage Urmil returned home and
complained regarding demands of dowry for a refrigerator, scooter etc. by appellants. On
account of non- fulfilment of these demands, the deceased was allegedly tortured and harassed.
These alleged actions ultimately contributed towards death. The doctor found that the cause of
death was shock and asphyxia as a result of server burns which were ante-mortem and were
sufficient to causes death in the ordinary course of life. “The court convicted the appellant
Pawan Kumar, He was sentenced to 7 years' rigorous imprisonment with a fine of Rs. 500/- .
Also the Hon'ble Apex Court has held that provision need to be made so as to clarify that
punishment of fine up to a certain limit, on a summary / ordinary conviction shall not be treated
as conviction at all for any purpose and all the more for entry into or a retention in Government
service”. The Supreme Court drew the attention of the Parliament to step in and perceive for
the larger interest of the people facing various cases throughout the country

6
1996 SCC (4) 17

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3) Ashok Kumar v. State of Rajasthan7

While in this case “in appeal against acquittal as the trial Judge has occasion to watch
demeanor of witnesses interference should not be made merely because a different conclusion
could have been arrived at. Prudence demands restraint on mere probability or possibility but in
perversity or misreading interference is imperative otherwise existence of power shall be
rendered meaningless”.

7
1990CriL J2276

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JUDGEMENT

 In Personam[CONCRETE JUDGEMENT]
The appeal was dismissed and the High Court was justified in upsetting the order of acquittal
passed by the trial Court and directing her conviction. Accordingly the order of the high court
was upheld.

 In Rem [RATIO DECIDENDI]

“In a case of dowry related death, if there is sufficient material to show that soon before the
death, the victim was subjected to cruelty or harassment prosecution has to rule out the
possibility of a natural or accidental death so as to bring it within the purview of the 'death
occurring otherwise than in normal circumstances'.”

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REASONING

The court noted about the question that, what the periphery of the dowry is? as defined in
Section 2. Definition of 'dowry' The court gave the reasoning that The argument that, the
argument stating that “there is no demand of dowry, in the present case, has no force”. In cases
of dowry deaths and suicides, circumstantial evidence plays an important role and inferences
can be drawn on the basis of such evidence which could be either direct or indirect. The word
"agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each
case. The interpretation that the accused seek, that conviction can only be if there is agreement
for dowry, is misconceived. "Dowry" definition is to be interpreted with the other provisions of
the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals
with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even
demand of dowry on other ingredients being satisfied is punishable. “It is not always necessary
that there be any agreement for dowry. Where the question is whether a person has committed
the dowry death of a woman and it is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused the dowry death”. The court
opined that the conjoint reading of Section 113B of the Evidence Act and Section 304B IPC
shows that there must be material to show that soon before her death the victim was subjected
to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the 'death occurring otherwise than in normal
circumstances'. The expression 'soon before' is very relevant where Section 113B of the
Evidence Act and Section 304B IPC are pressed into service. “Evidence in that regard has to be
led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of
each case and no strait jacket formula can be laid down as to what would constitute a period of
soon before the occurrence. The determination of the period which can come within the term
'soon before' is left to be determined by the Courts, depending on case by case basis”. There
must be existence of a proximate and live- link between the effects of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote in time and has
become stale enough not to disturb mental equilibrium of the woman concerned, it would be of

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no consequence. The court noted following aspect of medical report 8. (i) That whole body was
burnt. (ii) That hairs of head of the deceased were totally burnt. (iii)That outer portion of the
skull had come out.
(iv) That there were nine bangles and one kada in the Left forearm of the deceased. (v) That
bones of skull of the deceased were broken.
The case of burning the fracture of skull is not a necessary corollary but in the present case the
skull bones were broken. Jasvinder Singh (PW-7), his evidence is of considerable importance.
According to him, while he was standing at the place where the deceased was burning the
witness told Ramdev for extinguishing the fire upon which the appellant said that the deceased
has been burnt and let her burn and it is no use extinguishing the fire. “This statement has been
rightly highlighted by the High Court to show that her role as alleged by the prosecution has
been established”. Therefore, the fact remains that she was killed before death. Therefore, the
High Court was justified in holding that the Sessions Judge erroneously concluded that it was a
case of suicide.

8
Report by Dr. Rajendra Kuinar Gupta. (PW-6), a Medical Board was constituted on 25-04-1988 and apart
from him, Dr. O.P. Sharma and Dr. Avinash Sardana were members of the Board. He further stated that
dead body of the deceased was received on 23-04-1988 at about 8.00 p.m. and same was kept on ice and
post mortem of the dead body of the deceased was conducted on 25-04- 1988 and on examination

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CRITICAL ANALYSIS AND CONCLUSION

“In 1961, the Dowry Prohibition Act made giving and taking of dowry, its abetment or the
demand for it an offence punishable with imprisonment and fine or without the latter”. I
consider this a landmark case which not only improved the condition of the system but also
made easy for victims to get justice. Before this case there were lot of cases where victims were
not able to get justice as the offenders by passed the crime by burning the person because after
words there was no evidence to prove contrary to suicide.
I personally know one case; my father use to tell the story of far side relative, a man tied her
wife with her daughter on the wooden plank and burned the two innocents alive. Later the
police filed the case of suicide, and the offender still lives free with his second wife. In the
same case as police investigated the crime they, new that the wife was tortured because of
dowry but were not able to relate it with the crime.
Well even if this case was precedent and happened before the above case, it would be difficult
for the victim to get justice as the condition of women in villages a worst. The Judges also
reiterated and established exhaustively the decision of Ajit Savant Majagavi v/s State of
Karnataka9 namely the principles which apply in an appeal against acquittal. It also improved
the standing of High C ourt in these cases. The Judges also clarified the ambiguity that was
when we consider S.113B of IEA and 304B of IPC.
Dowry deaths rose from about 19 per day in 2001 to 21 per day in 2016. While these statistics
are worrying, there is a great deal of variation in the incidence of “dowry deaths” across
regions and over time. It is indeed alarming that the rise in dowry deaths is unabated despite
greater stringency of anti dowry laws10.
“The National Crime Records Bureau (NCRB) reveals that after registration of dowry deaths,
police have charge sheeted around 93.7 per cent of the accused, of which only 34.7 per cent
have been convicted”. The remaining cases are still pending in various courts. As we cannot
know how many cases were rejected by the local police “or fraction of total cases registered”,
and the dismal conviction rate with delays of two years or more, the inescapable conclusion is
one of despair11.
9
SUPRA
10
cultural behaviours often work their way around legal loopholes (Ghosh, 2013)
11
https://crawford.anu.edu.au/acde/asarc/pdf/papers/2018/WP2018-03.pdf

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What is requirement of time is not only the laws to be stringent but also the punishment as well
as the process of investigation, most of the wrong doers escape from the clutches of law
because there are many loopholes in the investigation and justice seeking process.
This project made me realize the importance of evidence in these case, as well as the condition
of women in villages.

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