IN THE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CRIMINAL) NO. ___ OF 2018

UNDER ARTICLE 136 OF THE CONSTITUTUION OF INDIA

(Arising out of the impugned final judgement dated ______passed by the Hon’ble High Court
of Delhi in Criminal Appeal No. ___ of 2018)

IN THE MATTER OF :

STATE OF DELHI NCT

Through its Chief Secretary,
Civil Secretariat Delhi ....... Petitioner

VS

ARVIND & Others

R/o House no. 121

ABC Colony, Delhi ..........Respondent

Through:

Advocate for Respondents

SAGAR GUPTA
TABLE OF CONTENTS

INDEX

S.NO. PARTICULARS PAGE NO.

1 LIST OF ABBREVIATION
2 LIST OF AUTHORITIES
3 STATEMENT OF JURISDICTION
4 SUMMARY OF FACTS
5 STATEMENT OF ISSUES
6 SUMMARY OF ARGUEMENTS
7 ARGUEMENT ADVANCED
8 PRAYER
9 AFFIDAVIT

LIST OF ABBREVIATIONS

AIR - All India Reporter

All - Allahabad High Court

Cal - Calcutta High Court

Cri LJ - Criminal Law Journal

Cr.P.C - Code of Criminal Procedure

Del - Delhi High Court

DW - Defence Witness

Ed. - Edition

IPC - Indian Penal Code

IC - Indian Cases

Mad - Madras High Court

Ori - Orissa High Court

P&H - Punjab and Haryana High Court

PW - Prosecution Witness

Raj - Rajasthan High Court

SC - Supreme Court

SCC - Supreme Court Cases

SCJ - Supreme Court Journal

SCR - Supreme Court Reporter

Sec. - Section

v. - Versus

LIST OF AUTHORITIES

STATUES & RULES REFERRED:

  INDIAN PENAL CODE, 1860
 THE CODE OF CRIMINAL PROCEDURE,1973
 THE CONSTITUTION OF INDIA
 THE INDIAN EVIDENCE ACT,1872
 THE SUPREME COURT, 2013

AUTHORITIES REFERRED:

 The Code of Criminal Procedure

Ratanlal & Dhirajlal – LexisNexis Butterworths Wadhwa Nagpur,
2011( 20th Edition)
 The Indian Penal Code
Ratanlal & Dhirajlal – LexisNexis Butterworths Wadhwa Nagpur, 2016
(26th Edition)
 Sarkar’s on Evidence
Wadhwa and Company Law Publisher, 2001(15th Edition)

WEBSITES REFERRED:

 www.manupatra.com
 www.scconline.com
 www.lawcommissionofindia.nic.in
(Note: All websites were accessed on 01-oct-2017 between 1000 hours
and 1500 hours)

List of cases referred :

S.No. CASE NAME CITATION

1 Baljeet Singh vs State of Haryana AIR 2004,SC 1714

2 Nunna Venkateshwara v State of A.P 1996 Crlj 108

3 Gurbachan Singh v. Satpal Singh AIR 1990 SC 209

4 Swamy Prahadas v State of MP 1995 SCC 943 Cri

5 Jagganath Mondal v. State of W.B. 2013 CriLJ Cal

6 Thangappandin v State 1998 CrLj 993Mad

7 M. Mohan v. State 2010 1 SCC 707

8 Amalendu Pal v. State of West Bengal , 2010 1 SCC 707

9 “K. Srinivas Rao vs D.A. Deepa 2011 32 SCC 453

10 Ramesh Kumar vs State of Chattisgarh AIR SCC 1998

11 Jaganath Mondal Vs State of West Bengal 2008 CrLj 77 Cal

12 Kailash vs State of MP AIR SCC2007

13 Baljinder vs State of Punjab AIR SC 2011

STATEMENT OF JURISDICTION

WHEREAS THE PRESENT PETITION UNDER ARTICLE 136 OF THE

CONSTITUTUION OF INDIA CHALLENGES FINAL JUDGEMENT DATED __.__.2018
PASSED BY THE HON’BLE HIGH COURT OF DELHI AND AS SUCH THIS HON’BLE
COURT HAS THE JURISDICTION.

ARTICLE 136 of the constitution reads as follows:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its

discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India

SUMMARY OF FACTS

1. Anusha and Arvind were married on 6th February 2012. The prosecution has alleged upon
the accused , his sister and his mother that they had demanded television , electric fan ,
 and refrigerator etc. since 5 to 6 months had passed from the date of marriage. Further it is
alleged that the harassment gradually increased and then came the unfortunate date.

2. On the unfortunate date of 20th June 2015 Anusha consumed naphthalene balls and died of
cardio respiratory arrest. It is alleged by the prosecution that she couldn’t suffer the
alleged torture due to the sickle blow. It is baselessly alleged by the prosecution that the
sickle blow was given by Bhanumati , the mother of the accused and the co – accused.

3. The Investigation
Police on being informed initiated the investigation and the findings were
a. Sickle was recovered as per the directions of Bhanumati , mother of Arvind
b. Letters written by Anusha were recovered while recovering sickle.
After completion of investigation the Metropolitan Magistrate charged Arvind ,
Bhanumati and Kiran for offences under section .304B , 306 and 498A and the case was
committed for trial.

4. The Trial
During the trial proceedings the prosecution examined 18 witnesses including the formal
witnesses including Anusha’s maternal uncle , father , brother in law and brother. The
maternal uncle deposed that there were demands of dowry. The autopsy report revealed
that there were two wounds on Anusha which were
i) A vertical incised wound on the right side of forehead 1-1/2” x ½” bone deep with
tapering ends and
ii) T shaped contusion 1-1/2” x ½” slight discharge from one hand
These wounds were incapable of causing death and the death was the result of these
wounds.
Further the trial court held that the demands of television etc were made after marriage
and hence could not be held as dowry and so section 304B could not be attracted in this
case. The trial court after analysing the oral and documentary evidence including
testimony of the doctor , who conducted autopsy , came to the conclusion that the
prosecution failed to establish the charges beyond reasonable doubt and therefore
acquitted all the three accused. The trial court convicted Bhanumati with grievous hurt
 and considering her age a fine of Rupees 3,000 was imposed, failing which she would
undergo imprisonment of 15 days.

5. The Appeals
The High Court refused to grant leave of appeal by a order observing “all the essential
features of the prosecution case have remained unsubstantiated and accused could not
have been convicted on the vague and unsubstantiated allegation. This matter has now
come up to The Hon’ble Supreme Court Of India where the Counsel submits his humble
submission for the Respondent Mr. Arvind, Mrs. Bhanumati, and Ms. Kiran.

STATEMENT OF ISSUES
1. Whether charge under section 304B ,498A ,306 IPC is maintainable against the
respondent.

2. Whether the demand made can be termed as dowry demand ?

SUMMARY OF ARGUMENTS
1. Whether charge under section 304B, 498A, 306 IPC is maintainable against the
respondent.

It is humbly submitted before the hon’ble Supreme Court that the magistrate made an
erroneous decision by charging the respondents under section 304B ,498A ,306 IPC . The
hon’ble Supreme Court has pronounced in various judgments that for conviction in dowry
death cases, it is mandatory to prove cruelty first.
In the present case ,there is no willful conduct which is of such a nature as is likely to drive
the woman to cause grave injury and not even a single witness could describe any incidence
in which the deceased was subjected to cruelty earlier .

2. Whether the demand made can be termed as dowry demand?

It is humbly submitted before the hon’ble Supreme Court that for a demand to be a dowry
demand, it must be made at the time of the solemnization of the marriage to the parents of the
girl or to any relative of the girl. Though, it doesn’t matter when such demand was fulfilled
but the time for making such a demand is of importance.
In the present case, the demand made had no nexus with the marriage and even the father,
brother-in-law and the brother of the deceased did not say anything about it.
Hence, such a demand can’t be considered as dowry demand.

ARGUMENTD ADVANCED
1. Whether charge under section 304B ,498A ,306 IPC is maintainable against the
respondent.

It is humbly submitted before the hon’ble Supreme Court that cruelty being the most
important criteria for upholding guilty of dowry death ,it is necessary to view the following
sections under which the respondents are alleged.

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 purpose 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.]

498A. Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means
—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to meet such demand.

306. Abetment of suicide.

If any person commits suicide, whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

It is humbly submitted before the hon’ble Supreme Court that the essential ingredients of the
said offence are:

(i) Death of a woman must have been caused by any burns or bodily injury or otherwise than
under normal circumstances
(ii) Such death must have been occurred within seven years of marriage

(iii) Soon before her death she was subjected to cruelty or harassment by her husband or
relative of her husband

(iv)Such cruelty or harassment must be in connection with the demand of dowry

For holding an accused guilty under section 304B

 The same has been illustrated in , Satvir Singh And Ors v. State Of Punjab And Anr on
27 September, 2001

The essential components of Section 304B are:

(i) Death of a woman occurring otherwise than under normal circumstances, within
7 years of marriage.
(ii) Soon before her death she should have been subjected to cruelty and
harassment in connection with any demand for dowry.

When the above ingredients are fulfilled, the husband or his relative, who subjected her to
such cruelty or harassment, can be presumed to be guilty of offence under Section 304B. To
be within the province of the first ingredient the provision stipulates that where the death of a
woman is caused by any burns or bodily injury or occurs otherwise than under normal
circumstances. It may appear that the former limb which is described by the words death
caused by burns or bodily injury is a redundancy because such death would also fall within
the wider province of death caused otherwise than under normal circumstances. The former
limb was inserted for highlighting that by no means death caused by burns or bodily injury
should be treated as falling outside the ambit of the offence

 In DURGA PRASAD VS STATE OF M.P (2010) 9 SCC 73 , in order to hold an

accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from
the fact that the woman died on account of burn or bodily injury, otherwise than under
normal circumstances, within 7 years of her marriage, it has also to be 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. Only then would such
death be called "dowry death" and such husband or relative shall be deemed to have
caused the death of the woman concerned.

Prosecution, in a case of offence under Section 304B IPC cannot escape from the

burden of proof that the harassment or cruelty was related to the demand for dowry and
also that such cruelty or harassment was caused soon before her death. The word dowry
 in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition
Act, 1961.

For charging an accused under section 306

 In Swamy Prahadas v State of Madhya Pradesh (1995) SCC 943 (Cri), the Apex court
ruled that, “there must be instigation, cooperation or intentional assistance given to
the would-be suicide. Neither a mere suggestion nor a casual remark suggesting a suicide
to commit suicide amounts to abetment to commit suicide.
2.5 Mere unhappiness in matrimonial life pushing the wife to commit suicide will not
attract Section 498A and Section 306 of the IPC.

 In Jagganath Mondal v. State of W.B., 2013 CriLJ 1994 (Cal ), the court stated essential
elements for the offence under section 306 IPC.
“In order to bring a successful conviction under this section it is important that its three
essential ingredients stand to be fulfilled i.e.
(A) The deceased should have committed suicide;
(B) The accused under this section should have abetted or instigated him/her to commit
such an act; and
(C) Such the alleged involvement of the accused should be direct in nature.”

 In a landmark judgment of Ramesh Kumar v. State of Chhattisgarh 2001 (9) SCC 618 , it
was held that ‘instigation’ may be inferred from a series of acts on the part of accused
that led to creation of such circumstances where the deceased had no other option left
with him or her than committing suicide. This series of acts may include use of force,
words, conduct, willful omission or deeds or for that matter even silence of accused in
order to annoy or irritate the deceased which resultantly caused the latter to take steps to
put an end to one’s life.

 In cases M. Mohan v. State, Represented by Deputy Superintendent of Police , (2011) 3

SCC 626; And Amalendu Pal v. State of West Bengal , (2010) 1 SCC 707 , this court
held that“ in absence of any one of the element either mental process of intentional
aiding or an overt act to cause this instigation to commit suicide, conviction will not
be successfully sustained. ”
“it has been reiterated in several Supreme Court judgements that there should be a live or
proximate link between the act of abetment and actual commission of suicide. In
absence of such a link, the element of intention or aiding cannot be attributed to the
accused”
 Prosecution has failed to establish that respondent abetted the deceased or instigated her to
commit suicide.
 Prosecution has not even averred that responded abetted the deceased or instigated. No
material is brought on record to establish any such abetment. Therefore, what is not
charged or contradicted,need not to be proved.
 Prosecution has failed to establish the “direct” nature of involvement of the respondent.
 Prosecution has not even averred that responded had direct involvement in suicide. No
material is brought on record to establish any such involvement. Therefore, what is not
charged or contradicted, need not be proved.
 To make out a case of abetment, there must be some active suggestions or instigation or
provocation or incitement or encouragement by the accused to a person to do an act. The
offence of abetment must confirm to the definition of the term ‘abetment’ given in Section
107, IPC.

For charging an accused under section 498A

 This Hon’ble Court has stated in “K. Srinivas Rao vs D.A. Deepa on 22 February, 2013
”The married life should be reviewed as a whole and a few isolated instances over a
period of years will not amount to cruelty. The ill conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated to an extent that because of
the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live
with the other party any longer, may amount to mental cruelty.

It is most respectfully submitted that it is only alleged that the deceased was subjected the
demands of dowry,however, the father, brother-in-law and the brother of the deceased did
not say anything about it before the Hon’ble Court.

 The Supreme Court judgment of Gurbachan Singh v. Satpal Singh AIR 1990 SC 209 ,
heavily lies on the prosecution. It is necessary that clear Evidences including
circumstantial or direct, if available, to support the Prosecution story should be produced
before the court.
 In Thangappandin v State (1998) Cr Lj 993 (Mad), the only evidence against the
accused was that there were some petty quarrels between him and deceased wife. The
Madras High Court held that such petty quarrels could not be sought to be brought within
the term ‘cruelty’ contemplated under Section 498A, IPC. Under explanation to Section
498A of IPC, cruelty is stated to be willful conduct, which is of such nature as is likely to
drive a person to commit suicide. Therefore a reasonable nexus needs to be established
between the cruelty and the suicide of the women, order to make good the offence of
cruelty. Accordingly, the court refused to convict the accused under Section 306 read with
498A, IPC.

It is submitted that there is no reasonable nexus established between cruelty and suicide of
the deceased.

2. Whether the demand made can be termed as dowry demand?

It is humbly submitted before the hon’ble Supreme Court that the demand was never made to
the parents of the girl before or at the time of the marriage and such a demand cannot be
considered as a dowry demand.

 In Pawan Kr. & Ors. Vs. State of Haryana AIR 1998 SC 958, the Hon‟ble Supreme
Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or
promised or even demanded prior to or at the time of marriage, to be
a demand for dowry for the purpose of Section 304-B of IPC. If cash or some property,
etc. is demanded by the boy or his family members, after marriage, saying that they were
expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or
any other person related or connected to her promise to fulfil such a demand, that also may
fall within the purview of dowry, as the promise though made after marriage, would
nevertheless be referable to the marriage, having been made with a view to preserve
the marriage. But, if the demand is made after marriage and it is in respect of a property or
valuable security, which was not demanded, was not expected to be given and also was
not in contemplation at any time up to solemnization of marriage, demand of such cash,
property or valuable security, etc. cannot be said to be in connection with
the marriage and, therefore, would not constitute demand of dowry...

 In Bansi Lal vs. State of Haryana (2011) 11 SCC 359 wherein it was held that while
considering the case under Section 304B cruelty has to be proved during the close
proximity of the time of death and it should be continuous and such continuous
harassment, physical or mental, by the accused should make life of the deceased miserable
which may force her to commit suicide. This Court further held that where the cruelty has
been proved during the close proximity of the time of death then the provisions of Section
113B of the Indian Evidence Act, 1872 providing for presumption that the accused is
responsible for dowry death, have to be pressed in service. 

 In Nunna Venkateshwara v State of Andhra Pradesh 1996 Cr Lj 108 (AP) , the

deceased had consumed pesticides and died an unnatural death after five years of marriage.
There was evidence that she was tortured continuously and was harassed to sell the five
acres of land gifted to her by her father at the time of marriage and to give the sale
proceeds to her husband. Unable to bear the harassment, she committed suicide. Though
there was ample evidence that the demands for dowry were made, the High Court of
Andhra Pradesh observed that the prosecution has to prove that there was a prior
agreement by the parents of the girl to the husband or in-laws to pay a valuable
security, money, etc. Unless the existence of the prior agreement between the parties
 was proved , the accused would not be liable to be punished for an offence under
Section 304-B, IPC.

Burden of proof is to the prosecution to prove that the dowry demands should be prior to the
marriage. It was not proved by the prosecution that demands was prior to the marriage.

PRAYER
WHEREFORE IN THE LIGHT OF FACTS STATED, ISSUES RAISED, AUTHORITIES
CITED AND ARGUMENTS ADVANCED, THE RESPONDENT PRAYS THAT THIS
HON’BLE APEX MOOT COURT MAY:

1. IT IS MOST RESPECTFULLY PRAYED THAT THIS HON’BLE COURT MAY

QUASH THE PETITION.

2. IT IS PRAYED TO UPHOLD THE DECISION OF THE HONORABLE TRIAL

AND HIGH COURT.

3. PASS ANY OTHER ORDER AS THIS COURT MAY DEEM FIT.

AND FOR SUCH ACT OF KINDNESS, THE RESPONDENT IS DUTY BOUND
SHALL ALWAYS PRAY.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY PRAYED.

DATE: 23 OCTOBER 2018

PLACE: NEW DELHI