KASHMIR KAUR vs. STATE OF PUNJAB

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S). 915-916 OF 2008 Kashmir Kaur & Anr. …Appellants VERSUS State of Punjab … Respondent J U D G M E N T Fakkir Mohamed Ibrahim Kalifulla, J. 1. The appellants are aggrieved of the judgment of the Single Judge of the High Court of Punjab and Haryana dated 06.04.2005. At the very outset it is JUDGMENT relevant to mention that the second appellant, namely, Lakha Singh also known as Lakhiwinder Singh s/o Gian Singh stated to have died on 03.12.2005 as per the death certificate enclosed along with the special leave petition papers and the application filed on 25.07.2006 in this Court. Criminal Appeal No(s).915-916 of 2008 1 of 26 Page 1 Therefore, the special leave petition itself, which was stated to have been filed on 25.07.2006 on behalf of Lakha Singh alias Lakhiwinder Singh, has

miscellaneous petition for substitution application, also filed on 25.07.2006, the first appellant has made a prayer to substitute her as the legal representative of the deceased Lakha Singh and pursue his appeal as well in order to enable her to get the monitory benefits from the employer of the deceased Lakha Singh who was stated to have been employed in the Punjab State Electricity JUDGMENT Board. In the above-stated background we heard learned counsel for the appellant as well as counsel for the State in these appeals. 2. The brief facts which are required to be stated are that the deceased Darshana alias Darshan Kaur d/o Joginder Singh - PW.2 was married to one Ravail Criminal Appeal No(s).915-916 of 2008 2 of 26 Page 2 Singh about 11 months prior to the date of occurrence. According to PW.2 at the time of marriage he gave sufficient dowry but Jagir Kaur,

accused were not satisfied with the amount of dowry given in marriage. According to the prosecution, there was a demand for cash amount of Rs.30,000/- apart from a stereo set and scooter by way of dowry which the deceased Darshana was compelled to ask and get from her parental house. 3. Three days prior to the occurrence, the deceased was stated to have gone to her parental house, JUDGMENT met PW.2 and requested him to arrange for the cash amount of Rs.30,000/- in order to fulfill the demand, when she stated to have also told PW.2 that she was being repeatedly tortured at the instance of the accused in her matrimonial home. PW.2 stated to have promised his daughter that he Criminal Appeal No(s).915-916 of 2008 3 of 26 Page 3 would arrange for the money in three to four days time after harvesting the crops and that she can return back to her matrimonial home.

witnessed the torture meted out to the deceased Darshana at the hands of the accused in the morning and in the evening he came to know about the death of the deceased whose body was lying in the Civil Hospital at Taran Taran. PW.3 stated to have met Joginder Singh (PW.2) at his village called Nandpur and informed him about the torture meted out to his daughter in the morning and the JUDGMENT subsequent death in the evening. Thereafter, PW.2 went to the hospital along with PW.3 and after identifying the body of his daughter he lodged a complaint with the Police Station Jhabal which came to be registered as FIR No.246/87 Exhibit PE/2 for Criminal Appeal No(s).915-916 of 2008 4 of 26 Page 4 offences under Section 304B read with 34 IPC as well as under Section 498A IPC.

Singh as well as Jagir Kaur alias Jagire, mother-in- law of the deceased, who in the meantime passed away. PW.1 was the doctor who conducted the postmortem issued Exhibit ‘PA’ the postmortem certificate under Exhibit PA/1 PW.1 stated to have prepared a pictorial diagram showing the seat of injuries. He also stated that stomach and its contents along with a portion of small intestine with JUDGMENT its contents, a portion of large intestine with its contents, a portion of liver, spleen and kidney were handed over to police along with letter dated 04.11.1987 addressed to Chemical Examiner, Patiala in five Jars sealed with the seal bearing Criminal Appeal No(s).915-916 of 2008 5 of 26 Page 5 impression ‘KS’ for its report. The Chemical Examiner Reports were marked as Exhibit ‘PF’ to Exhibit ‘PG’.

deceased which was marked as Exhibit ‘PH’. There were other letters produced by PW.2 said to have been written by the deceased addressed to him which were marked as Exhibit ‘PH’ to ‘PK’. 7. The trial Court after detailed consideration of the evidence placed before it, both oral as well as documentary, found the appellant as well as her JUDGMENT husband Lakha Singh guilty of the offences falling under Section 304B read along with 34 IPC as well as under Section 498A IPC. The trial Court after reaching the said finding convicted them for the abovesaid offences and imposed the sentence of seven years rigorous imprisonment each for the Criminal Appeal No(s).915-916 of 2008 6 of 26 Page 6 offence under Section 304B IPC and two years rigorous imprisonment for the offence under Section 498A IPC apart from a fine of Rs.1000/- each and in

for three months. The sentences were directed to run concurrently. 8. On the appeal preferred by the appellant as well as her husband having been rejected and the conviction and sentence having been confirmed, the present appeals have been preferred before us. 9. We heard Mr. R.K. Kapoor, learned counsel for the JUDGMENT appellant and Mr. Kuldip Singh, learned counsel for the respondent-State. We also perused the judgment of the trial Court, as well as, the High Court and the material records placed before us. Before dealing with the facts involved in these appeals, we feel it appropriate to state the Criminal Appeal No(s).915-916 of 2008 7 of 26 Page 7 requirement of law in regard to offences falling under Sections 304B and 498A of IPC while convicting the accused for the said offences. In this

the earlier decisions of this Court where the legal principles in regard to the abovesaid provisions have been dealt with and the principles of law laid down therein. As we are concerned with Sections 304B and 498A IPC, the said provisions along with Section 113B of the Evidence Act are relevant. The same are extracted hereinunder: “ 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. JUDGMENT Explanation.-For the purpose of this sub- section, “dowry” shall have the same meaning Criminal Appeal No(s).915-916 of 2008 8 of 26 Page 8 as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

Explanation.-For the purpose of this section, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to derive 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. JUDGMENT 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 has been subjected by such person to Criminal Appeal No(s).915-916 of 2008 9 of 26 Page 9 cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

10. As regards the principles concerning the above referred to provisions we wish to refer to the decisions reported in K. Prema S. Rao and another V. Yadla Srinivasa Rao and others - (2003) 1 SCC 217, Kaliyaperumal and another V. State of Tamil Nadu – (2004) 9 SCC 157, Devilal V. State of Rajasthan – (2007) 14 SCC 176, and Ashok Kumar JUDGMENT V. State of Haryana – (2010) 12 SCC 350. 11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16: “……To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to Criminal Appeal No(s).915-916 of 2008 10 of 26 Page 10 cruelty and harassment “in connection with the demand for dowry”.”…… 12. In Kaliyaperumal (supra) paragraph 5 is relevant

5. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The 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 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section JUDGMENT Criminal Appeal No(s).915-916 of 2008 11 of 26 Page 11

JUDGMENT 13. In Devilal (supra) the ingredients of the provisions of Section 304B as laid down in Harjit Singh V. State of Punjab – (2006) 1 SCC 463 and Ram Badan Sharma V. State of Bihar – (2006) 10 SCC Criminal Appeal No(s).915-916 of 2008 12 of 26 Page 12 115 have been clearly set out in paragraph 20 which reads as under:

14. In Ashok Kumar , to which one of us was a party JUDGMENT (Hon’ble Dr. Justice B.S. Chauhan), paragraphs 19, 20, 21 and 23 are relevant for our purpose which read as under: “ 19 . We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is “soon before her death”. In our view, the expression “soon before her death” cannot be given a restricted or a narrower meaning. Criminal Appeal No(s).915-916 of 2008 13 of 26 Page 13

20 . We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v. State of Punjab , held that the legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasise the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry- related cruelty or harassment inflicted on her. JUDGMENT 21. Similar view was expressed by this Court in Yashoda v. State of M.P. , where this Court stated that determination of the period would depend on the facts and circumstances of a Criminal Appeal No(s).915-916 of 2008 14 of 26 Page 14

JUDGMENT 23. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Criminal Appeal No(s).915-916 of 2008 15 of 26 Page 15

15. The decision in Ashok Kumar (supra) was subsequently followed in Pathan Hussain Basha V. State of A.P. - JT 2012 (7) SC 432, to which again one of us was a party (Hon’ble Mr. Justice Fakkir JUDGMENT Mohamed Ibrahim Kalifulla). 16. From the above decisions the following principles can be culled out: (a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty Criminal Appeal No(s).915-916 of 2008 16 of 26 Page 16 and harassment in connection with the demand of dowry.

(e) Such cruelty or harassment should be for or in connection with demand of dowry. (f) It should be established that such cruelty and harassment was made soon before her death. (g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. JUDGMENT (h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. (i) Therefore, 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. Criminal Appeal No(s).915-916 of 2008 17 of 26 Page 17

(k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B. JUDGMENT (l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. (m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was Criminal Appeal No(s).915-916 of 2008 18 of 26 Page 18 in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence. 17. Keeping the above principles in mind, when we examine the case on hand, we find the following uncontroverted facts: (i) The death of the deceased occurred 11 months after her marriage thereby the main condition prescribed under Section 304B, namely, within seven years of the marriage was fulfilled. (ii) The death of the deceased was not normal as evidenced by the version of PW.1 postmortem doctor, the postmortem certificate and also Exhibit ‘PG’, the report of Chemical Examiner. JUDGMENT (iii) The evidence of PWs.2 and 3 read along with Exhibit ‘PH’ to ‘PK’ disclose that there was a demand for payment of cash of Rs.30,000/- apart from a stereo set and a scooter. (iv) According to PW.2, father of the deceased 3 to 4 days prior to the unfortunate death of the deceased his daughter came to his house and expressed her dire need for payment of Rs.30,000/- as demanded by her in-laws and that she was being harassed on that score. Criminal Appeal No(s).915-916 of 2008 19 of 26 Page 19 (v) The evidence of PW.3 was to the effect that on the date of the death of the deceased, namely, 03.11.1987 he happened to witness the torture meted out to the deceased at the hands of her in-laws.

18. On behalf of the appellant, it was contended that Exhibit ‘PK’ which was stated to have been recovered by PW.5, Sub-Inspector of Police, from the brassier of the deceased was not proved to the satisfaction of the Court. For the sake of argument JUDGMENT even if such a contention can be accepted and the said Exhibit ‘PK’ is eschewed from consideration there were other exhibits such as Exhibits ‘PH’ to ‘PK’ which were all letters written by the deceased addressed to PW.2 her father which were written prior to her death and were sent by post. It is not Criminal Appeal No(s).915-916 of 2008 20 of 26 Page 20 in dispute and as noted by the trial Court, those exhibits bore the postal stamp impressions with relevant dates mentioned therein. Though DW.3 a

was a variation in the hand-writing of the deceased as between the admitted one and those found in Exhibits ‘PH’, ‘PK’ and ‘PJ’, he himself admitted in the cross-examination that some variation in the hand- writing can occur with the passage of time after the learning stage and also at the old age or due to clinical or any disease or accident which affect the muscular control of the person while writing a letter. JUDGMENT To yet another question, he also admitted that it was correct that the portion of the disputed signatures ‘Q1’ to ‘Q3’ which may read as Darshana is similar to the corresponding words of standard signature ‘A1’. Therefore, it will be highly unsafe to rely upon the evidence of DW.3 in order to exclude Criminal Appeal No(s).915-916 of 2008 21 of 26 Page 21 the letters said to have been written by the deceased to her father.

found that the alleged harassment at the hands of the in-laws of the deceased immediately before her death was true. Before us nothing was pointed out to hold that the said conclusion was perverse or was there any illegality or irregularity. The evidence of PW.1 doctor, who conducted the postmortem, has stated in his evidence that as per his report Exhibit ‘PA’ the following antemortem injuries and JUDGMENT other abnormalities were found on the body of the deceased: “Six abrasions varying from 0.5 cm to 1 cm were present on the left side of the cheek, 2 cm away from the angle of the mouth. Larynx and trachea showed congestion and blood stained froth was present. Right and left lungs were congested and frothy material was coming out of lung after squeezing. Blood from the heart was sent for chemical examination. Criminal Appeal No(s).915-916 of 2008 22 of 26 Page 22 Mouth pharynx and essofigus did not show any abnormality. But blood stained froth was present. Stomach and its contents were sent to the C/Examiner for the Chemical Examination”

mouth of the deceased girl was swollen and there were other injuries on other parts of her body. Along with Exhibit ‘PF’ the Chemical Examiner covering letter Exhibit ‘PG’ made it clear that although no poison was found in the viscera, there were causes or reasons for non-detection of poison such as the poison having been excreted from the body, detoxicated, matabolised by the system or JUDGMENT the poison being such as test for the same do not exist in view of countless number of poisons. He also opined “the circumstantial evidence goes a long way to prove the facts of the case regardless of the report indicating that the no poison was found”. “From postmortem findings and police Criminal Appeal No(s).915-916 of 2008 23 of 26 Page 23 history it appears that death has occurred due to some poison”.

that the deceased was harassed from last night, namely, 02.11.1987 and her miserable condition was created at the instance of her mother-in-law, wife of her husband’s brother, the appellant herein and the brother himself, namely, second accused, who is no more. In Exhibit ‘PJ’ she while referring to such harassment meted out to her by her mother- in-law, brother-in-law and his wife also mentioned JUDGMENT about the demands made by them, namely, cash, scooter and other articles. 22. All the above factors clearly established the legal requirements for an offence falling under Sections 304B and 498A IPC with the aid of Section 113B were conclusively proved and the conviction and Criminal Appeal No(s).915-916 of 2008 24 of 26 Page 24 sentence imposed, therefore, do not call for interference.

forthwith to serve out the remaining part of sentence, if any. The appeal so far as appellant No.1 is concerned stands dismissed. 24. The appeal so far as appellant No.2 i.e. accused Lakha Singh @ Lakhiwinder Singh is concerned, as held by us in the opening part of this judgment stands dismissed as having become infructuous even at the JUDGMENT time it came to be filed. Accordingly, the application for substitution also stands dismissed. …..……….……………………………..J. [Dr.B.S. Chauhan] Criminal Appeal No(s).915-916 of 2008 25 of 26 Page 25 …………….………………………………J. [Fakkir Mohamed Ibrahim Kalifulla] New Delhi; December 12, 2012 JUDGMENT Criminal Appeal No(s).915-916 of 2008 26 of 26 Page 26