Sections 304B, 498A and 406 of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 by staying execution of the sentences of imprisonment.= It is difficult to appreciate how the High Court could casually have suspended the execution of the sentence and granted bail to the Respondent No.2 without recording any reasons

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 520 OF 2020
[ARISING OUT OF SLP (CRL.) No.2102 OF 2019]
PREET PAL SINGH …….Appellant
versus
THE STATE OF UTTAR PRADESH & ANR. …..Respondents
J U D G M E N T
Indira Banerjee, J.
Leave granted.

  1. This appeal, filed by the father of the deceased victim, is
    against the order dated 21.01.2019 passed by the Allahabad High
    Court, Lucknow Bench in Criminal Misc. Application No. 129789 of
    2018, in Criminal Appeal No. 1594 of 2018, whereby the High Court
    granted bail to the Respondent No.2, Sandeep Singh Hora, husband of
    the deceased victim, convicted by a judgment dated 23.7.2018 of
    the Additional District and Sessions Judge/Special Judge (EC Act),
    Lucknow, hereinafter referred to as the “Sessions Court” in Sessions
    2
    Trial No.1385 of 2010, for offences under Sections 304B, 498A and
    406 of the Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry
    Prohibition Act, 1961 by staying execution of the sentences of
    imprisonment.
  2. By an order dated 23.7.2018 in Sessions Trial No.1385 of 2010
    the Sessions Court sentenced the Respondent No.2 to Simple
    Imprisonment of 3 years and fine of Rs.10,000/- under Section 498A
    of the IPC and in default of payment of fine to further Simple
    Imprisonment of 3 months; Life Imprisonment for offence under
    Section 304B of the IPC; Simple Imprisonment for 3 years and fine of
    Rs.5,000/- for offence under Section 406 of the IPC and in default of
    payment of fine, further simple imprisonment of 2 months; Simple
    Imprisonment for 5 years and fine of Rs.15,000/- under Section 3 of
    the Dowry Prohibition Act and in default of payment of fine, further
    Simple Imprisonment of 3 months and Simple Imprisonment of one
    year and fine of Rs.5,000/- under Section 4 of the Dowry Prohibition
    Act and, in default of payment of fine, further Simple Imprisonment of
    3 months. All the sentences were to run concurrently.
  3. Being aggrieved by the conviction and sentence, the
    Respondent No.2 filed an appeal in the High Court which was
    numbered Criminal Appeal No.9514 of 2018. After filing the appeal,
    the Respondent No.2 filed Criminal Misc. Application No.129789 of
    2018 inter alia praying that he be enlarged on bail, during the
    pendency of the aforesaid appeal. The said application has been
    3
    allowed by the order dated 21.1.2019 under appeal.
  4. The High Court recorded the submission made on behalf of the
    Respondent No.2 that (i) No FIR in relation to demand for dowry or
    harassment had been filed before the death of the victim; (ii) the
    Respondent No.2 had taken Rs. 2,50,000/- as loan from the brother of
    the victim and not as dowry, which was established because the
    brother of the victim had not been produced as a witness; and (iii)
    that the deceased had committed suicide which was evident from the
    post mortem report. The cause of death as shown in the post mortem
    report was “asphyxia as a result of ante mortem hanging”.
  5. The High Court briefly recorded the submission on behalf of the
    State and on behalf of the Appellant and then the submission on
    behalf of the Respondent No.2, in rebuttal, that the Respondent No.2
    had been framed.
  6. After recording the submissions of the respective parties, the
    High Court passed a short, cryptic, non speaking order, under appeal
    before this Court, which is set out hereinbelow for convenience:-
    “After hearing learned counsel for the parties and going
    through the record, we find force in the arguments raised by
    learned counsel for the accused-appellant. Keeping in view
    the facts and circumstances of the case, without commenting
    anything on merits of the case, we are of the considered
    opinion that accused-appellant is entitled to be released on
    bail.
    Let accused-appellant, namely Sandeep Singh Hora convicted
    in aforesaid Sessions Trial No. 1385 of 2010 be enlarged on bail
    during pendency of appeal subject to his furnishing a personal
    bond and two sureties each in the like amount to the
    satisfaction of court concerned.
    4
    It is clarified that no stay order has been passed in respect of
    fine imposed on the accused appellant and the same shall be
    deposited within four weeks from today and in default, the
    accused-appellant shall be deprived from the benefit of the
    bail order passed today.
    The bail bonds after being accepted, shall be transmitted to
    this Court for being kept on record of this appeal.”
  7. It is not in dispute that the victim died in circumstances which
    were not natural, on the night of 24/25.8.2010, within about 8½
    months of her marriage with the Respondent No.2 on 12.12.2009.
  8. On 25.8.2010, at about 3.05 a.m., a First Information Report
    No.352/2010 was registered on the complaint of the Appellant,
    pursuant to which, a criminal case being Crime No.480 of 2010 was
    initiated against Respondent No.2, his parents and his sister Sonia @
    Disha Chhugani under Sections 498A, 304B, 406 and 411 of the IPC
    and Sections 3 and 4 of the Dowry Prohibition Act.
  9. After investigation into the case, the Investigating Officer
    submitted a chargesheet against the Respondent No.2, his father
    Balvir Singh, his mother Manjeet Kaur and his sister Sonia @ Disha
    Chhugani.
  10. The case was committed to the Sessions Court, after which
    charges were framed against the accused under Sections 498A, 304B
    and 406 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, to
    which the accused pleaded not guilty and claimed trial. The accused
    5
    were absolved of the charge under Section 411 of the IPC.
  11. In Sessions Trial No.1385 of 2010, the Prosecution examined
    eight witnesses, including the Appellant, being the complainant in the
    FIR, his wife, being the mother of the victim and his sister Rajendra
    Pal Kaur, being the paternal aunt of the victim. The defence also
    examined five witnesses. The Respondent No.2 and the other accused
    were examined under Section 313 of the Criminal Procedure Code
    (CrPC).
  12. The evidence adduced before the Sessions Court, has
    meticulously been recorded in the judgment and order dated
    23.7.2018, under appeal before the High Court. The family members
    of the victim, who deposed before the Sessions Court, have given oral
    evidence that the Appellant had spent money beyond his financial
    capacity, for the wedding of his daughter, that is, the victim.
    However, soon after the marriage of the victim to the Respondent
    No.2 on 12.12.2009, the victim’s in-laws as well as the Respondent
    No.2, her husband, harassed her mentally and physically for more
    dowry.
  13. From the oral evidence of the victim’s parents, and other family
    members, it transpires that the victim used to make phone calls to
    her mother, maternal grandmother and her aunt, complaining of
    harassment meted out to her by the members of her matrimonial
    family. There is oral evidence that the Appellant’s wife used to
    console her by saying that things would settle down in due course.
    6
  14. From the oral evidence it also transpires that the in-laws of the
    victim used to pressurize the victim to bring cash from her parents.
    On 17.6.2010, the Respondent No.2 along with his father Balvir Singh
    came to Sitapur and took cash of Rs.2,50,000/- from the victim’s
    brother, Pritam Singh. From the oral evidence of the Appellant, it
    transpires that on the evening of 24.8.2010, the victim rang up the
    Appellant twice, complaining of atrocities. She was frightened and
    expressed fear for her life. On the same night at 12.15 a.m. the
    Appellant was informed that his daughter had died.
  15. The 2nd Prosecution Witness, being the mother of the victim,
    stated that the family had spent approximately Rs.21 lacs for the
    marriage of the victim. They had gifted I-10 car, which they had
    purchased, after obtaining loan against insurance policy. However,
    after marriage, the in-laws of the victim started harassing the victim,
    demanding cash of Rs.15 to 20 lacs, alleged to have been promised
    by her parents and also demanding a Pajero car in place of the I-10
    car.
  16. The post mortem report reveals the following ante-mortem
    injuries:-
    “Oblique ligature mark 30 cm x 1.5 cm on front and around the
    neck just above thyroid cartilage; both lungs and membranes
    congested; right heart chamber full and left empty; there was
    some semi-digested food material available in stomach; liver,
    spleen, both kidneys congested; uterus empty and normal; the
    death had possibly taken place half day before post-mortem.
    As per the opinion of the witness, the deceased had died due
    to asphyxia as a result of ante mortem hanging.”
    7
  17. The Respondent No. 2 and his parents were examined under
    Section 313 of the Cr.PC. They denied practically everything, except
    the fact that the Respondent No.2 had married the victim on
    12.12.2009. They emphasized on the fact that the victim had
    committed suicide, and contended that the entire investigation had
    been conducted under the supervision and instructions of a motivated
    IPS officer, who was a friend of the Appellant.
  18. The Respondent No.2 and/or his parents have, in their
    examination under Section 313 of the CrPC, suggested that the
    deceased victim had wanted to marry some other boy, but had been
    compelled by her parents to marry the Respondent No.2 and that she
    frequently used to talk with and exchange messages with that boy.
    There is also a suggestion that the victim had committed suicide
    because of mental illness. Significantly, on the one hand it is
    insinuated that her involvement with another boy led to the suicide
    and on the other hand it is suggested that she committed suicide due
    to mental illness. The suggestions are somewhat contradictory and in
    any case the suggestion of mental illness is unsupported by any
    evidence whatsoever.
  19. Through three of the witnesses examined by the defence,
    namely, one Shri K.K. Pandey, Sub-Divisional Engineer, Mobile
    Services (Security) who deposed as the 1st Defence Witness, Shri
    Madhu Balusu, Nodal Officer, Reliance Communications, Gomti Nagar,
    Lucknow who deposed as 2nd Defence Witness, and Shri Prashant
    Mishra who deposed as 3rd Defence Witness, the defence made an
    8
    attempt to establish the victim’s involvement with the said Prashant
    Mishra. The evidence of the aforesaid three witnesses evinces calls
    from the victim’s phone to the phone in the name of Prashant Mishra,
    and from the said phone to the phone of the victim and also exchange
    of some messages between the two phones. However, the said
    Prashant Mishra, who deposed as Defence witness said, that the
    phone in his name was always kept at home and used by his parents
    and sister. The victim was a class friend of his sister, Prachi. He did
    not know the mobile number of the victim. The victim used to talk to
    his sister Prachi. This witness deposed that he knew that the victim
    had married the Respondent No.2. He said that his sister Prachi and
    his mother had attended the wedding. This witness categorically
    asserted that phone calls to and from the victim from this phone
    number were not made in his presence, nor were the messages
    exchanged in his presence.
  20. The 4th Defence Witness, Smt. Lajwanti Chugani (mother-in-law
    of Sonia @ Disha Chhugani) and the 5th Defence Witness Shri
    Bhagwan Das Chugani (father-in-law of Sonia alias Disha Chhugani)
    deposed that their daughter in law Sonia did not have good relations
    with her parents as she had left her first husband and remarried their
    son against the wishes of her parents.
  21. The Sessions Court considered the evidence adduced on behalf
    of the Prosecution, including the oral evidence of the family members
    of the victim, the evidence of the defence witnesses and the defence
    of the Respondent No.2, his parents and his sister under Section 313
    9
    of the CrPC and thereafter convicted the Respondent No.2 as also his
    parents Balvir Singh and Manjeet Kaur under Sections 498A, 304B
    and 406 of the IPC and under Sections 3 and 4 of the Dowry
    Prohibition Act. The Respondent No.2’s sister Sonia @ Disha
    Chugani was acquitted of all the charges against her.
  22. The judgment and order of the Sessions Court, under appeal in
    the High Court is based on evidence. The oral evidence adduced
    before the Sessions Court, which has meticulously been recorded in
    the judgment and order dated 23.7.2008, under appeal before the
    High Court, reveals that there is evidence of torture and harassment
    of the victim, by the Respondent No. 2 and his parents, for more
    dowry, soon after marriage, which continued till her death. The
    victims husband (Respondent No. 2) and her in laws pressurized the
    victim to bring cash from her parents and also pressurized her for a
    Pajero car in place of the I-10 car gifted by her parents at the time of
    marriage. The Respondent No. 2 came to Sitapur along with his
    father, Balvir Singh on 17.6.2010 and took cash of Rs.2,50,000/- from
    the victim’s brother, Pritam Singh. Even as late as on the evening of
    24.8.2010, the Respondent No.2 went to the residence of the victim’s
    aunt and threatened to put an end to the marriage. On 24.8.2010,
    the victim had made frantic calls complaining of torture, and
    expressing fear for her life. From the oral evidence, it may be
    reasonably inferred that she was traumatized. The same night, she
    died in unnatural circumstances.
  23. It is not for this Court to go into the merits of the appeal
    10
    pending before the High Court. Suffice it to mention that prima facie
    the Sessions Court has proceeded on the basis of evidence and the
    Respondent No.2 has not been able to make out a case of any patent
    infirmity and/or illegality in the judgment and order of the Sessions
    Court.
  24. The Short question that arises for consideration in this appeal
    is, whether the High Court was justified in directing release of the
    Respondent No.2 on bail, during the pendency of his appeal before
    the High Court.
  25. Section 389 provides that, pending any appeal by a convicted
    person, the Appellate Court may, for reasons to be recorded by it in
    writing, order that the execution of the sentence or order appealed
    against, be suspended and, also, if he is in confinement, that he be
    released on bail. Of course, in view of the mandate of Section 389(3)
    of the CrPC, the principles are different in the case of sentence not
    exceeding three years and/or in the case of bailable offences. In this
    case, of course, none of the offences for which the Respondent No. 2
    has been convicted are bailable. Moreover the Respondent No.2 has,
    inter alia, been given life imprisonment for offence under Section
    304B of the IPC and imprisonment for five years for offence under
    Section 3 of the Dowry Prohibition Act.
  26. As the discretion under Section 389(1) is to be exercised
    judicially, the Appellate Court is obliged to consider whether any
    cogent ground has been disclosed, giving rise to substantial doubts
    about the validity of the conviction and whether there is likelihood of
    11
    unreasonable delay in disposal of the appeal, as held by this Court in
    Kashmira Singh v. State of Punjab
    1 and Babu Singh and Ors. v.
    State of U.P.
    2
  27. Section 304B was incorporated in the Indian Penal Code by the
    Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). The
    object of the amendment was to curb dowry death. Section 304B
    does not categorize death, it covers every kind of death that occurs
    otherwise than in normal circumstances. Where the other ingredients
    of Section 304B of the Code are satisfied, the deeming fiction of
    Section 304B would be attracted and the husband or the relatives
    shall be deemed to have caused the death of the bride.
  28. The essential ingredients for attraction of Section 304B are:
    (i) the death of woman must have been caused in
    unnatural circumstances.
    (ii) the death should have occurred within 7 years of
    marriage
    (iii) Soon before her death the woman must have been
    subjected to cruelty or harassment by her husband
    or his relatives and such cruelty or harassment
    must be for or in connection with the demand for
    dowry, and such cruelty or harassment is shown to
    have been meted out to the woman soon before
    her death.
  29. As observed by this Court in State of Punjab v. Iqbal Singh
    & Ors.
    3
    , the legislative intent of incorporating Section 304B was to
    curb the menace of dowry death with a firm hand. In dealing with
  30. (1977) 4 SCC 291
  31. (1978) 1 SCC 579
  32. (1991) 3 SCC 1
    12
    cases under Section 304B, this legislative intent has to be kept in
    mind. Once there is material to show that the victim was subjected to
    cruelty or harassment before death, there is a presumption of dowry
    death and the onus is on the accused in-laws to show otherwise. At
    the cost of repetition, it is reiterated that the death in this case took
    place within 8½ months of marriage. There is apparently evidence of
    harassment of the victim for dowry even on the day of her death, and
    there is also evidence of payment of a sum of Rs.2,50,000/- to the
    Respondent-Accused by the victim’s brother, two months before her
    death.
  33. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr.
    4
    , this
    Court held:-
    “11. The law in regard to grant or refusal of bail is very well
    settled. The Court granting bail should exercise its
    discretion in a judicious manner and not as a matter of
    course. Though at the stage of granting bail a detailed
    examination of evidence and elaborate documentation of
    the merits of the case need not be undertaken, there is a
    need to indicate in such orders reasons for prima facie
    concluding why bail was being granted particularly where
    the accused is charged of having committed a serious
    offence. Any order devoid of such reasons would suffer from
    non-application of mind.”
  34. Even though detailed examination of the merits of the case may
    not be required by courts while considering an application for bail but,
    at the same time, exercise of jurisdiction has to be based on well
    settled principles and in a judicious manner and not as a matter of
    course as held by this Court in Chaman Lal v. State of U.P. and
    Anr.
    5
    .
  35. (2004) 7 SCC 528
  36. (2004) 7 SCC 525
    13
  37. In Mauji Ram v. State of Uttar Pradesh and Anr.
    6
    , this
    Court referred to Ajay Kumar Sharma v. State of U.P. and Ors.
    7
    ,
    Lokesh Singh v. State of U.P. and Anr.
    8 and Dataram Singh v.
    State of U.P. and Anr.
    9 and stated categorically that this Court had
    time and again emphasised the need for assigning reasons while
    granting bail.
  38. In Lokesh Singh v. State of U.P. and Anr. (supra), this Court
    referred to Kalyan Chadra Sarkar v. Rajesh Ranjan (supra) and
    set aside the impugned order of the High Court granting bail.
  39. In Ajay Kumar Sharma (supra), a three-Judge Bench of this
    Court relied on Chaman Lal v. State of U.P. (supra) and set aside
    order of bail granted by the High Court holding, that it was well
    settled that even though detailed examination of the merits of the
    case may not be required by the courts while considering an
    application for bail, at the same time exercise of discretion has to be
    based on well settled principles and in a judicious manner and not as
    a matter of course.
  40. There is a difference between grant of bail under Section 439 of
    the CrPC in case of pre-trial arrest and suspension of sentence under
    Section 389 of the CrPC and grant of bail, post conviction. In the
    earlier case there may be presumption of innocence, which is a
    fundamental postulate of criminal jurisprudence, and the courts may
  41. (2019) 8 SCC 17
  42. (2005) 7 SCC 507
  43. (2008) 16 SCC 753
  44. (2018) 3 SCC 22
    14
    be liberal, depending on the facts and circumstances of the case, on
    the principle that bail is the rule and jail is an exception, as held by
    this Court in Dataram Singh v. State of U.P. and Anr. (supra).
    However, in case of post conviction bail, by suspension of operation
    of the sentence, there is a finding of guilt and the question of
    presumption of innocence does not arise. Nor is the principle of bail
    being the rule and jail an exception attracted, once there is conviction
    upon trial. Rather, the Court considering an application for
    suspension of sentence and grant of bail, is to consider the prima
    facie merits of the appeal, coupled with other factors. There should
    be strong compelling reasons for grant of bail, notwithstanding an
    order of conviction, by suspension of sentence, and this strong and
    compelling reason must be recorded in the order granting bail, as
    mandated in Section 389(1) of the Cr.P.C.
  45. In Vinod Singh Negi v. State of Uttar Pradesh and Anr.
    10
    ,
    this Court set aside the impugned order of suspension of sentence
    and grant of appeal as the order was devoid of reasons.
  46. It is nobody’s case that the death of the victim was accidental
    or natural. There is evidence of demand of dowry, which the Trial
    Court has considered. The death took place within 7 or 8 months and
    there is oral evidence of the parents of cruelty and torture
    immediately preceding the death. There is also evidence of payment
    of Rs.2,50,000/- to the Respondent-Accused by the victim’s brother.
    The Respondent No.2 has not been able to demonstrate any apparent
    10 (2019) 8 SCC 13
    15
    and/or obvious illegality or error in the judgment of the Sessions
    Court, to call for suspension of execution of the sentence.
  47. In considering an application for suspension of sentence, the
    Appellate Court is only to examine if there is such patent infirmity in
    the order of conviction that renders the order of conviction prima
    facie erroneous. Where there is evidence that has been considered
    by the Trial Court, it is not open to a Court considering application
    under Section 389 to re-assess and/or re-analyze the same evidence
    and take a different view, to suspend the execution of the sentence
    and release the convict on bail.
  48. Even though the term ‘dowry’ is not defined in the Indian Penal
    Code, it is defined in the Dowry Prohibition Act, 1961 as any valuable
    security given or agreed to be given either directly or indirectly by
    one party to the marriage to the other party to the marriage, or by
    any person at or before or any time after the marriage, in connection
    with the marriage of the parties.
  49. It is difficult to appreciate how the High Court could casually
    have suspended the execution of the sentence and granted bail to the
    Respondent No.2 without recording any reasons, with the casual
    observation of force in the argument made on behalf of the Appellant
    before the High Court, that is, the Respondent No.2 herein. In effect,
    at the stage of an application under Section 389 of the CrPC, the High
    Court found merit in the submission that the brother of the victim not
    having been examined, the contention of the Respondent No.2, being
    the Appellant before the High Court, that the amount of Rs.2,50,000/-
    16
    was taken as a loan was not refuted, ignoring the evidence relied
    upon by the Sessions Court, including the oral evidence of the
    victim’s parents.
  50. From the evidence of the Prosecution witnesses, it transpires
    that the Appellant had spent money beyond his financial capacity, at
    the wedding of the victim and had even gifted an I-10 car. The
    hapless parents were hoping against hope that there would be an
    amicable settlement. Even as late as on 17.6.2010 the brother of the
    victim paid Rs.2,50,000/- to the Respondent No.2. The failure to lodge
    an FIR complaining of dowry and harassment before the death of the
    victim, is in our considered view, inconsequential. The parents and
    other family members of the victim obviously would not want to
    precipitate a complete break down of the marriage by lodging an FIR
    against the Respondent No.2 and his parents, while the victim was
    alive.
  51. For the reasons discussed above, the appeal is allowed. The
    impugned order of the High Court is set aside and the Respondent
    No.2 is directed to surrender for being taken into custody. The bail
    bonds shall stand cancelled.
    …………………………..J.
    [ARUN MISHRA]
    ……………………………J.
    [INDIRA BANERJEE]
    NEW DELHI
    AUGUST 14, 2020