SONI DEVRAJBHAI BABUBHAI versus STATE OF GUJARAT AND ORS.

Citation: [1991] 3 S.C.R. 812 · Decided: 28-08-1991 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
SONI DEVRAJBHAI BABUBHAI 
v. 
STATE OF GUJARAT AND ORS. 
AUGUST 28, !991 
B 
[LAUT MOHAN SHARMA AND J.S. VERMA, JJ.] 
c 
D 
Indian Penal Code,.~60: Section 304-B (As inserted by Act 43 DJ 
1986)-Scope and object of-Dowry death-Death occuring prior to 
insertion of Section 3[J4:B-Section 304-B held prospective and conse-
quently inapplicable-It contains a substantive provision creating a new 
offence and does not merely effect a procedural change for trial of 
pre-existing substantive offence .. 
Indian Evidence Act, 1872: Section 113-B. Presumption as to 
dowry death-Section 113-B contains rule of evidence to prove the 
offence of dowry death. 
Dowry Prohibition Act, 1961: Purpose of. 
Constitution of India, 1950: Article 20( 1) Protection against con-
viction for a new offence created subsequent to the commission of 
offence. 
· ~ 
E 
Appellant's daughter was married to respondent No. 2 on 
15.12.1984. She died on 13.8;1986. The appellant filed a criminal comp-. 
lain! against the respondents viz. daughter's husband and his relatives 
for an offence under section 498-A, triable by a Magistrate of First 
Class, read with section 34 of the Indian Penal Code, 1860 alleging that 
F 
his daughter's. death was unnatural resulting from torture by her 
husband and his relatives. By Act No. 43 of 1986, the Indian Penal Code 
was amended and Section 304-B, offence of dowry death, was inserted 
in the Code w .e.f. 19.11.'1986. Since the newly inserted offence of dowry 
death was triable by a Court of Session, the appellant filed an applica-
tion. before the Magistrate for committing the case to the Court of 
G Session for trial of offence under section 304-B. The Magistrate dismis-
sed his application by holding that the amendment being prospective 
was inapplicable to the case because the death had occurred prior to the 
amendment. Thereafter the appellant filed an application in the High 
Court for a direction to commit the case of dowry death to the Court of. 
Session .. The High Court also dismissed his application by holding that 
H since the offence was committed prior to the date of inser.tion of section 
812 
-l. 
DEVRAJBHAI v. STATE OF GUJARAT 
813 
304-B, the section was not applicable to the case. In appeal to this Court 
A 
on the question whether section 304-B of the Indian Penal Code was 
-I 
applicable to a case of dowry death where the death has occurred prior 
to the insertion of Section 304-B, it was contended on behalf of the 
appellant that section 304-B of the Indian Penal Code does not create a 
new offence and contains merely a rule of evidence. 
B 
Dismissing the appeal, this Court, 
HELD: I. The offence of dowry death punishable under section 
-
304-B of the Indian Penal Code is a new offence inserted in the Code 
with effect from 19.11.1986 when Act No. 43 of 1986 came into force. 
~ 
The said offence is punishable with a minimum sentence of seven years 
which may extend to life imprisonment and is triable by Court of c 
Session. The corresponding amendments made by Act No. 43 of 1986 in 
the Code of Criminal Procedure and the Indian Evidence Act relate to 
· the trial and proof of the offence. Section 498-A inserted in the Indian 
Penal Code by the Criminal Law (Second Amendment) Act, 1983 is an 
offence triable by a Magistrate of the First Class and is punishable with 
D 
imprisonment for a term which may extend to three years in addition to 
\ 
line. The offence of dowry death punishable under section 304-B pro-
vides for a more stringent offence than section 498-A. Section 304-B is a 
substantive provisiOn creating a new offence and not merely a provision 
effecting a change in procedure for trial of a pre-existing substantive 
offence. The rule of evidence to prove the offence of dowry death is 
E 
contained in section 113-B of the Indian Evidence Act providing for 
presumption as to dowry death which was a simultaneous amendment 
made in the Indian Evidence Acf for proving the offence of dowry 
~~ 
death. The fact that the Indian Evidence Act was so amended simnl-
taneously with the insertion of section 304-B in the Indian Penal Code 
by the same Amendment Act is another pointer in this direction. There-
F 
fore, it cannot be held that section 304-B does not create a new offence 
and contains merely a rule of evidence. [818D-F, 819C-D] 
2. The respondents are being tried in th,e Court of Magistrate of 
.the First Class for the offence punishable under section 498-A which 
•• 
was in the statu

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