Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.408 OF 2017
JAGJIT SINGH ...APPELLANT(S)
VERSUS
STATE OF PUNJAB ...RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.
1. The appeal after granting special leave to
appeal is filed by the appellant against the judgment of
the High court of Punjab and Haryana affirming the
judgment of the trial Court convicting the appellant
under Section 304-B IPC but reducing the sentence from 8
years rigorous imprisonment to a period of 7 years under
the aforesaid section. The appellant who was tried along
with his parents and two brothers was acquitted of the
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2018.09.26
16:49:49 IST
Reason:
charge under Section 406 of the Indian Penal Code by the
trial Court. In view of his conviction under Section
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304-B IPC, the trial Court did not find it necessary to
record a separate conviction under Section 498-A IPC.
2. We heard Dr. J.P. Dhanda, learned counsel for
the appellant and Ms. Jaspreet Gogia, learned counsel for
the respondent-State.
3. There is no dispute that the marriage between
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the appellant and his deceased wife took place on 24
January, 1998. It is also not in the region of
controversy that she died well within seven years of her
marriage. It is undisputed that the death of the
appellant’s wife was unnatural and she died along with
her child by way of drowning in a river. In fact, PW8 -
ASI in his deposition stated that both the dead bodies
were secured together with one chunni. The only question
is whether the death is to be attributed to
cruelty/harassment on the part of the appellant arising
out of demand for dowry as contemplated under Section
304-B of the IPC.
4. Learned counsel for the appellant pointed out
that the Court did not consider the evidence given by the
appellant and that neither cruelty nor any demand for
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dowry is made out. It is contended that the appellant’s
wife apparently took her life along with that of her
daughter on account of the fact that she was consistently
taunted by PW3 – the sister of the appellant’s wife who
was married to an industrialist. The appellant was
earning a sum of Rs.3000/- per month. However,
notwithstanding the same, the appellant had taken care of
her by fulfilling the desire of the deceased wife to
pursue education and she was, in fact, doing her Post-
Graduation at the time of her untimely death. The
appellant’s father (we note that the appellant along with
his two brothers and mother were tried by the trial Court
and the trial Court convicted the appellant and his
mother under Section 304-B but appellant’s mother stood
acquitted by the High Court) had in fact financed the
education of the deceased wife.
5. Learned counsel for the State pointed out that
no reliance is to be placed on the evidence of the DW6
and DW8. They were neighbours. Their evidence supporting
the case of the appellant should be perceived as born out
of their need to maintain cordial relationship with their
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neighbours. As to what happened within the four walls of
the house, she would question as to how could they depose
before the Court. She sought support from the evidence
of PW1 and PW3. The evidence would indicate that there
is a proximity in a point of time between the acts, as
complained of, against the appellant and the untimely
death of the deceased.
6. Before we embark on the examination of the case
it becomes necessary to remind ourselves of the contours
of the jurisdiction of this Court in an appeal which is
maintained after grant of special leave under Article 136
of the Constitution of India. Does the Court have the
duty as a regular court to consider an appeal or is its
jurisdiction circumscribed by the consideration that this
Court is dealing with the appeal on the basis of grant of
special leave.
7. We may profitably advert to the views of the
majority expressed in Saravanabhavan and Govindaswamy Vs.
State of Madras AIR 1966 SC 1273 , which is as under:-
“7. This is an appeal under Article 136 of
the Constitution and we shall first state what
this Court will ordinarily consider in such an
appeal. It is not to be forgotten that this
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Court’s ordinary appellate jurisdiction in
criminal cases is to the extent laid down in
Article 134 of the Constitution. Some of the
appeals in that article are available as of
right and others lie if a special certificate
is granted by the High Court. This appeal
belongs to neither class. It is not as of
right and no special certificate has been
granted by the High Court. There is in our
jurisdiction no “sacred right of appeal” as
the French Canadian law assumes(See Mayor etc.
of Montreal v. Brown, (1876) 2 AC 168 (184).
Once a decision is given by the High Court,
that is final unless an appeal is allowed by
special leave of this Court. No doubt this
Court has granted special leave to the
appellants but the question is one of the
principles which this Court will ordinarily
follow in such an appeal. It has been ruled in
many cases before that this Court will not
reassess the evidence at large, particularly,
when it has been concurrently accepted by the
High Court and the court or courts below. In
other words this Court does not form a fresh
opinion as to the innocence or the guilt of
the accused. It accepts the appraisal of the
evidence in the High Court and the court or
courts below. Therefore, before this Court
interferes something more must be shown, such
as, that there has been in the trial a
violation of the principles of natural justice
or a deprivation of the rights of the accused
or a misreading of vital evidence or an
improper reception or rejection of evidence
which, if discarded or received, would leave
the conviction unsupportable, or that the
court or courts have committed an error of law
or of the forms of legal process or procedure
by which justice itself has failed. We have,
in approaching this case, borne these
principles in mind. They are the principles
for the exercise of jurisdiction in criminal
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cases, which this Court brings before itself
by a grant of special leave.”
(E mphasis supplied )
8. In Mst. Dalbir Kaur and Others Vs. State of
Punjab 1976 (4) SCC 158, the Bench of two learned Judges
laid down as follows:-
“3. As to the principles on which special
leave is granted by this Court, the same have
been clearly and explicitly enunciated in a
large number of decisions of this Court. It
has been pointed out that the Supreme Court is
not an ordinary court of criminal appeal and
does not interfere on pure question of fact.
It is only in very special cases where the
court is satisfied that the High Court has
committed an error of law or procedure as a
result of which there has been a serious
miscarriage of justice that the court would
interfere with the concurrent findings of the
High Court and the trial Court. It has also
been pointed out by this Court more than once
that it is not in the province of this Court
to reappraise the evidence and to go into the
question of credibility of the witnesses
examined by the parties, particularly when the
courts below have after considering the
evidence, given their findings thereon. In
other words, the assessment of the evidence by
the High Court would be taken by this Court as
final, unless it is vitiated by any error of
law or procedure, by the principles of natural
justice, by errors of record or misreading of
evidence, non-consideration of glaring
inconsistencies in the evidence which demolish
the prosecution case or where the conclusion
of the High Court is manifestly perverse and
unsupportable and the like. As early as 1950
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this Court in Pritam Singh v. State , 1950 SCR
453: AIR 1950 SC 169: 51 Cri LJ 1270,
speaking through Fazl Ali, J. (as he then was)
observed as follows:
The obvious reply to all these
arguments advanced by the learned Counsel
for the appellant, is that this Court is
not an ordinary court of criminal appeal
and will not, generally speaking, allow
facts to be reopened, especially when two
courts agree in their conclusion in regard
to them and when the conclusions of fact
which are challenged are dependent on the
credibility of witnesses who have been
believed by the trial Court which had the
advantage of seeing them and hearing their
evidence.
In arguing the appeal, Mr. Sethi
proceeded on the assumption that once an
appeal had been admitted by special leave,
the entire case was at large and the
appellant was free to contest all the
findings of fact and raise every point which
could be raised in the High Court or the
trial Court. This assumption is, in our
opinion, entirely unwarranted.
The rule laid down by the Privy Council
is based on sound principle, and, in our
opinion, only those points can be urged at
the final hearing of the appeal which are
fit to be urged at the preliminary stage
when leave to appeal is asked for, and it
would be illogical to adopt different
standards at two different stages of the
same case.
On a careful examination of Article 136
along with the preceding article, it seems
clear that the wide discretionary power
with which this Court is invested under it
is to be exercised sparingly and in
exceptional cases only,....
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Generally speaking, this Court will not
grant special leave, unless it is shown
that exceptional and special circumstances
exist, that substantial and grave injustice
has been done and that the case in question
presents features of sufficient gravity to
warrant a review of the decision appealed
against.
Analysing this decision, two principles appear
to have been clearly laid down by this Court:
“(1) that in appeals by special leave
against the concurrent findings of the
courts below, this Court would not go into
the credibility of the evidence and would
interfere only when exceptional and special
circumstances exist which result in
substantial and grave injustice having been
done to the accused; and
(2) that even after special leave has been
granted the appellant is not free to
contest all the findings of fact, but his
arguments would be limited only to those
points, even at the final hearing, which
could be urged at the stage when the
special leave to appeal is asked for.”
8. Thus the principles governing
interference by this Court in a criminal
appeal by special leave may be summarised as
follows:
“(1) that this Court would not interfere
with the concurrent finding of fact based
on pure appreciation of evidence even if it
were to take a different view on the
evidence;
(2) that the Court will not normally enter
into a reappraisement or review of the
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evidence, unless the assessment of the High
Court is vitiated by an error of law or
procedure or is based on error of record,
misreading of evidence or is inconsistent
with the evidence, for instance, where the
ocular evidence is totally inconsistent
with the medical evidence and so on;
(3) that the Court would not enter into
credibility of the evidence with a view to
substitute its own opinion for that of the
High Court;
(4) that the Court would interfere where
the High Court has arrived at a finding of
fact in disregard of a judicial process,
principles of natural justice or a fair
hearing or has acted in violation of a
mandatory provision of law or procedure
resulting in serious prejudice or injustice
to the accused;
(5) this Court might also interfere where
on the proved facts wrong inferences of law
have been drawn or where the conclusions of
the High Court are manifestly perverse and
based on no evidence.
It is very difficult to lay down a rule of
universal application, but the principles
mentioned above and those adumbrated in the
authorities of this Court cited supra provide
sufficient guidelines for this Court to decide
criminal appeals by special leave. Thus in a
criminal appeal by special leave, this Court
at the hearing examines the evidence and the
judgment of the High Court with the limited
purpose of determining whether or not the High
Court has followed the principles enunciated
above. Where the Court finds that the High
Court has committed no violation of the
various principles laid down by this Court and
has made a correct approach and has not
ignored or overlooked striking features in the
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evidence which demolish the prosecution case,
the findings of fact arrived at by the High
Court on an appreciation of the evidence in
the circumstances of the case would not be
disturbed.”
(Emphasis supplied)
9. We may also notice the judgment rendered by this
Court in Sushil Ansal v. State Through Central Bureau of
Investigation 2014 (6) SCC 173. Therein, in the
judgment rendered by the T.S. Thakur,J. as His Lordship
then was, it is inter alia held in para 55 as follows:
“55. ....Perversity in the findings,
illegality or irregularity in the trial that
results in injustice or failure to take into
consideration an important piece of evidence
are some of the situations in which this
Court may reappraise the evidence adduced at
the trial but not otherwise...."
(Emphasis supplied)
10. We lastly notice a recent judgment of this Court
in the case of Mohd. Ali alias Guddu v. State of Uttar
Pradesh 2015 (7) SCC 272 wherein the Court inter alia
held as follows:
“17. In Ganga Kumar Srivastava v. State of
Bihar, (2005)6 SCC 211 : 2005 SCC (Cri) 1424,
the Court after referring to a series of
decisions on exercise of the power of this
Court under Article 136 of the Constitution,
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culled out the following principles: (SCC p.
217, para 10)
“(i) The powers of this Court under
Article 136 of the Constitution are very
wide but in criminal appeals this Court
does not interfere with the concurrent
findings of fact save in exceptional
circumstances.
(ii) It is open to this Court to
interfere with the findings of fact given
by the High Court, if the High Court has
acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke
the power under Article 136 only in very
exceptional circumstances as and when a
question of law of general public
importance arises or a decision shocks the
conscience of the Court.
(iv) When the evidence adduced by the
prosecution fell short of the test of
reliability and acceptability and as such
it is highly unsafe to act upon it.
(v) Where the appreciation of evidence
and finding is vitiated by any error of
law of procedure or found contrary to the
principles of natural justice, errors of
record and misreading of the evidence, or
where the conclusions of the High Court
are manifestly perverse and unsupportable
from the evidence on record.”
(Emphasis supplied)
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11. Learned counsel for the appellant drew our
attention to the recent judgment of this Court in the
case of Major Singh and Another v. State of Punjab
reported in 2015 (5) SCC 201 . It was a case of
unnatural death. Therein the prosecution witnesses, the
complainant-father and brother of the deceased deposed
that they saw the accused dragging the deceased towards
the room inside the house and that she was trembling and
on seeing the witnesses, all the four accused ran away
and the deceased breathed her last. The father had
spoken about the information he had given to the village
panchayat. The Court proceeded inter alia as follows:
“10. To sustain the conviction under
Section 304-B IPC, the following essential
ingredients are to be established:
(i) the death of a woman should be
caused by burns or bodily injury or
otherwise than under a 'normal
circumstance';
(ii)such a death should have occurred
within seven years of her marriage;
(iii) she must have been subjected
to cruelty or harassment by her
husband or any relative of her
husband;
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(iv)such cruelty or harassment should
be for or in connection with demand of
dowry; and
(v) such cruelty or harassment is
shown to have been meted out to the
woman soon before her death.”
The Court also proceeded to hold as follows:
“14. The prosecution has not examined
any independent witness or the panchayatdars
to prove that there was demand of dowry and
that the deceased was subjected to ill-
treatment. Ordinarily, offences against
married woman are being committed within the
four corners of a house and normally direct
evidence regarding cruelty or harassment on
the woman by her husband or relatives of the
husband is not available. But when PW-3 has
specifically stated that the demand of dowry
by the accused was informed to the
panchayatdars and that panchayat was taken to
Village Badiala, the alleged ill-treatment or
cruelty of Karamjit Kaur by her husband or
relatives could have been proved by the
examination of the panchayatdars. The fact
that the deceased was subjected to harassment
or cruelty in connection with demand of dowry
is not proved by the prosecution. It is also
pertinent to note that both the courts below
have acquitted all the accused for the
offence punishable under Section 498-A IPC.”
12. We noticed that it was a case where the courts
had acquitted all the accused for the offence under
Section 498-A of the IPC. The Court noted that the case
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of the prosecution is that there is a demand for scooter
and proceeded to hold inter alia as follows:
“18. Applying these principles to the instant
case, we find that there is no evidence as to
the demand of dowry or cruelty and that
deceased Karamjit Kaur was subjected to dowry
harassment “soon before her death”. Except
the demand of scooter, there is nothing on
record to substantiate the allegation of
dowry demand. Assuming that there was demand
of dowry, in our view, it can only be
attributed to the husband Jagsir Singh who in
all probability could have demanded the same
for his use. In the absence of any evidence
that the deceased was treated with cruelty or
harassment in connection with the demand of
dowry “soon before her death” by the
appellants, the conviction of the appellants
under Section 304-B IPC cannot be sustained.
The trial court and the High Court have not
analysed the evidence in the light of the
essential ingredients of Section 304-B IPC
and the conviction of the appellants under
Section 304-B IPC is liable to be set aside.”
(E mphasis supplied )
13. In this connection it is to be noticed that the
appellants in the said case was not the husband, but
they were the parents-in-law of the deceased.
14. We have already noticed that the essential
ingredients of Section 304-B IPC as noticed by this
Court in Major Singh & Another vs. State of Punjab
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(supra). Parliament has inserted Section 113-B in the
Evidence Act. In order that the presumption therein has
to be applied it must be established that soon before
her death, such woman must have been subjected by such
person to cruelty or harassment for, or in connection
with any demand of dowry. Upon this fact being
established, undoubtedly, the court is mandated to
assume that the person has indeed caused the dowry death
as contemplated in Section 304-B IPC. Therefore, the
presumption cannot apply unless it is established that
soon before her death, a woman has been subjected to
cruelty or harassment for or in connection with any
demand for dowry. The words “soon before” her death has
also been considered in a large number of cases.
15. We need only to advert to a recent judgment
rendered by a Bench consisting of three learned Judges
in Rajinder Singh v. State of Punjab reported in 2015(6)
SCC 477 only for the purpose of appreciating the words
“soon before” occurring in Section 304-B IPC. This is
what the Court has to see
“24. We endorse what has been said by
these two decisions. Days or months are not
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what is to be seen. What must be borne in
mind is that the word “soon” does not mean
“immediate”. A fair and pragmatic
construction keeping in mind the great social
evil that has led to the enactment of Section
304-B would make it clear that the expression
is a relative expression. Time-lags may
differ from case to case. All that is
necessary is that the demand for dowry should
not be stale but should be the continuing
cause for the death of the married woman
under Section 304-B.”
16. Having regard to the aforesaid statements of the
law, we embark on a consideration of the appeal. The
prosecution case as projected through PW1 complainant –
Mohinder Singh, the father of the deceased is as
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follows:- the deceased was married on 24 January, 1998
and he had given dowry beyond his capacity in the
marriage. After some time of the marriage, all the five
accused started beating the deceased. They started
taunting her that she had brought meagre dowry and that
her parents had not given a Maruti car in the marriage
due to which they had felt belittled in their
neighbourhood. The deceased conveyed this fact to the
complainant on telephone. The daughter was aged about
1½ years at the time of her death. In December 2000, the
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deceased accompanied by her sister went to see her
parents at Amao Farm, PS Khatima. She informed the
complainant that she was being subjected to harassment
by her in-laws. She also told him that the accused had
threatened her that she could return to her matrimonial
home only if she brought a sum of Rs.2 lacs from her
parents for the purchase of a Maruti car. The
complainant then got prepared a fixed deposit receipt
for Rs.30,000/- and handed it over to the deceased. The
complainant has also informed at that time to accused
Jagjit Singh on phone that he would visit Ludhiana after
the sale of the crops and would pay the accused the sum
of Rs.2 lacs demanded by them. He also requested him not
to harass the deceased. However, even then the accused
gave beatings to the deceased and turned her out of
their house. The deceased wife then went to the house of
Avtar Singh (nephew of the complainant), and he took her
to the house of the accused and also paid them
Rs.2000/- and requested him to treat the deceased
nicely. On February 16, 2001 at about 11:30 a.m. the
deceased made a telephone call from the PCO to the
complainant that all the five accused were subjecting
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her to extensive harassment and that she was feeling
depressed also informed him that on that date also the
accused had given her beatings and turned her and her
daughter out of the matrimonial home. She also told him
that she was making this telephone call from the PCO.
The complainant consoled the deceased and told her that
he was coming to Ludhiana and advised her to return to
her matrimonial home. It is also stated that his nephew
on being contacted told them that the accused and his
mother approached the house of Avtar Singh in the
evening and enquired about the deceased from him and
from his other relations. It is alleged that Avtar Singh
told that they had not visited him nor he had any
information about them. It is the case of the
prosecution that complainant lodged the FIR on
17.02.2001.
17. PW1, father of the deceased inter alia states as
follows:
The marriage between the appellant and his daughter
(deceased) took place on 24.1.1998. After a good period
of marriage all the accused persons in the home started
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beating the deceased for not bringing sufficient dowry.
He states that they also used to taunt his daughter for
bringing insufficient dowry. The appellant also demanded
a Maruti car. This fact was brought to the notice by
his daughter on telephone. A female child was born.
Thereafter, he states that the deceased went to her
house, two months before the untimely death took place
namely in December 2000. He states that his daughter
alongwith PW3(another daughter) came to his farm. He
states that his daughter told him all the accused were
harassing and demanding Maruti car or Rupees two lacs
for purchasing the car. The deceased daughter told him
that the accused misbehaved with her and she will not go
to her in-laws house as they used to beat her and
further (it may be noted that there is no allegation
that the accused appellant used to beat her) he deposed
that she told him that they would kill her. He states
that his brother Ram Singh and daughter PW3 were
present. He further states that he send his daughter to
her in-laws house after consoling her. Also a FDR for
Rs.30,000/- (Rupees Thirty Thousand only) was given to
her. He phoned up the accused not to maltreat his
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daughter and he promised to give Rupees two lacs after
selling the crop. He next says that all the accused re-
started giving the beatings and sent away his daughter
to the house of his nephew Avtar Singh. Avtar Singh, it
is alleged brought this to his notice and gave Rupees
two lacs to the accused. PW1 states that the
maltreatment, however, continued. Thereafter, he
relates about one event that is on 16.2.2001 the
deceased daughter phoned him up from a PCO. She informed
that all the accused were maltreating and she was very
much upset and the accused threw her out from the house
and that the accused told her that the accused shall not
allow her without Maruti car. In cross examination, PW1
stated that the deceased daughter was preparing for
examination B.A. Part-I which she was doing as a private
candidate and that she did graduation after the marriage
by studying in her matrimonial home. He also states
that at the time of her death, she was preparing for the
M.A examination. He claims to have made payment of
Rs.935/- as the admission fee, which according to the
accused-appellant, was paid by his father but he does
admit that bank draft of Rs.935/- was got prepared by
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the father of the appellant. He says that he does not
know whether the appellant was working as turner. He
says he might be working but he does not know that he is
earning Rs.2000/- or Rs.2500/- per month. He admits the
photograph of his deceased daughter apparently in
connection with the marriage of the ‘Devar’ of the
daughter of Iqbal Singh (father of the appellant). He
admits that his other daughter (PW3) is married to a
person having his own industry which is being run by his
son-in-law, his brother and father. He admits that
neither his brother who is lawyer nor the sister’s son
who appears to be a Superintendent in the BPO Office,
Ludhiana made any report to the police station or
elsewhere about the harassment. He further states that
he did not convene any panchayat in this regard. He has
denied the suggestion that he used to tell his deceased
daughter to separate from the parents-in-law. He denies
the suggestion (apparently that his daughter took her
life) on the basis of the FIR lodged by him.
18. We may also advert to what PW3 has actually
said. Sometime after the marriage, the accused started
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taunting her deceased sister by saying that she brought
insufficient dowry and that there is a demand for dowry.
She says that this is disclosed about 5 or 6 months
after the marriage. Thereafter, she repeatedly told her
about the harassment at the hands of the accused on
account of dowry. Thereafter, she refers to meeting her
parents in December 2000 along with the deceased. She
speaks along the same lines as her father. On
16.2.2001, it is alleged that the deceased came to her
house and wept bitterly. She told her that in the
preceding day, her husband (appellant) has hurled abuses
at her father on phone and at that time she was
accompanied by her daughter. That all the five (5)
accused used to beat her and she told her that when she
prevented her husband from abusing her father, the
appellant gave her more beating. She specifically says
that when the appellant went to take meal, her daughter
also started sharing meal with her and then the
appellant slapped her. The deceased also told her that
when she protested, Balwant Singh (brother of the
appellant) also beat her and abused her. It is
thereafter she goes to a PCO and makes the call which
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PW1 has spoken about. She does say that the appellant's
mother came to her house to make enquiry about the
deceased and she told her that the deceased was under
depression and has gone to make a call at the PCO and
she should take her home. The appellant's mother told
her that she would herself return home.
19. In her cross examination she does state as
follows:
Her husband and father-in-law are running their own
industry. More importantly, she says it is correct that
the status of the accused was lower than that of her in-
laws. They had represented that they had applied for
industrial connection and would start their own
industry. She admits that the deceased continued with
her studies and was preparing for M.A. Examination at
the time of her death so as to become self-reliant. She
denies the suggestion made to the effect that it is on
account of his financial status that the appellant used
to shun the company of her husband. She also states
that her uncle, an Advocate was informed about the
harassment but he never lodged any complaint or FIR with
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a view to ensure settlement of the deceased in her
matrimonial home. She states that on 16.2.2001, the
deceased spent about 5 – 7 minutes with her. She denies
the allegation that she also taunted the deceased that
the birth of her daughter has further increased the
liability and therefore, the deceased committed suicide.
20. No doubt we notice that PW5 is examined to show
that he was at the PCO from where the deceased made a
call on 16.2.2001 that he just saw but did not hear her
talk. She was weeping, the witness deposed. Though
there is a definite role for the nephew namely, Av tar
Singh, which is referred to in the deposition of both
PW1 and PW3, the prosecution has given up the said
witness as being won over by the accused.
21. Having adverted to the evidence which is the
basis for imputing the charge against the appellant, we
may now examine what is the defence evidence. DW5 is
the father-in-law of the appellant's brother (Sarabjit
Singh). Be it noted that Sarabjit Singh was also an
accused in the trial. He says that after 6 years of
marriage, his daughter and son-in-law separated from the
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parents. He states that his daughter always remained
happy in the house of her husband. He states that PW3
is married into an affluent family. PW3 used to tell
that she has been married in a poor family. The
deceased had told her that she would get higher
education and bring herself to the level of PW3. Upon a
daughter being born, again PW3 reminded her of the fact
that she is married in a poor family and asked her to
get rid of the appellant. This is how the deceased
started remaining under depression. He says that the
accused never demanded dowry from the deceased-wife of
the appellant. In cross examination he would say that he
used to visit the house of the appellant after about a
fortnight.
22. DW6 is a neighbour. His house is just opposite
the house of the Iqbal-appellant's father. He has stated
that family of the accused is a nice family. He never
heard or saw the accused harassing the deceased with the
demand of dowry. He denies the allegation that being
neighbour he tried to depose in favour of the accused.
26
He says Sarabjit Singh is also a joint resident with the
present accused.
23. Finally, DW8 is examined. He says that he knows
the family of the accused Iqbal (appellant's father)
very well. He states that the deceased-wife of the
appellant used to visit his house and used to address as
Mausaji. His house is opposite to the house of the
accused. He says that the deceased never complained to
him against the accused. He says that PW1 used to visit
his house sometimes and that PW3 is married at a
th
distance of 4 streets from his house. The family of
PW3 is well off whereas the family of the accused is an
average family. The deceased intended to open a private
school in the house after completing her study. He
deposed that once in his presence PW3 told the deceased
that while she was married in an affluent family, the
deceased was married in a poor family. He states that
PW1 visited the matrimonial home of the deceased once or
twice after the marriage but thereafter he never visited
their house. PW3 is alleged to have taken the deceased
away from the matrimonial home on the morning of the day
27
by telling her that father had come to visit his sister
in village Rampur. He states that the deceased
absolutely had no problem while staying with the
accused. In cross examination he would depose that the
deceased used to meet him sometime. He is not able to
remember the date of marriage of the deceased. He did
not attend the marriage either from this side of the
deceased or from the side of the complainant. He also
did not attend the marriage of PW3 from either side (In
this regard PW3 is the elder sister of the deceased).
He deposed that PW1 did not visit the house of the
appellant as they were poor.
24. A reading of Section 304-B of the IPC along with
Section 113-B of the Evidence Act would establish that
once the prosecution shows that soon before the death of
the wife, she has been subjected to cruelty or
harassment for or in connection with any demand for
dowry, the court shall presume that such person caused
the dowry death within the meaning of Section 304-B IPC.
The words 'shall presume' in Section 113-B of the
Evidence Act, while it mandates that the Court is duty
28
bound to proceed on the basis that the person has caused
the dowry death, the presumption is rebuttable and it is
open to the relative to prove that the ingredients of
Section 304-B IPC are not satisfied. See in this
regard, the following statement of law contained in the
case of G.V. Siddaramesh v. State of Karnataka 2010 (3)
SCC 152:
“26. Section 113-B of the Evidence Act raises
a presumption against the accused and reads:
“113-B. 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 had 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.
Explanation . - For the purposes of this
section, ‘dowry death’ shall have the
same meaning as in Section 304-B of the
Indian Penal Code (45 of 1860).”
A reading of Section 113-B of the Evidence Act
shows that there must be material to show that
soon before the death of woman, such woman was
subjected to cruelty or harassment for or in
connection with demand of dowry, then only a
presumption can be drawn that a person has
committed the dowry death of a woman. It is
then up to the appellant to discharge this
presumption.”
29
25. We may also notice the statement of law
contained in the decision of this Court in the case
of Ashok Kumar v. State of Haryana reported in 2010
(12)SCC 350 which reads as under:
“24. Of course, deemed fiction would introduce
a rebuttable presumption and the husband and
his relatives may, by leading their defence and
proving that the ingredients of Section 304-B
were not satisfied, rebut the same. While
referring to raising of presumption under
Section 304-B of the Code, this Court, in
Kaliyaperumal v. State of T.N.; (2004) 9 SCC
157: 2004 SCC (Cri) 1417 , stated the following
ingredients which should be satisfied: (SCC p.
162, para 4)
“(1) The question before the court must be
whether the accused has committed the dowry
death of a woman. (This means that the
presumption can be raised only if the
accused is being tried for the offence
under Section 304-B IPC).
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or
in connection with any demand for dowry.
(4) Such cruelty or harassment was soon
before her death.”
26. In the perspective of aforesaid state of the
law, two issues would arise. Whether there is material
within the meaning of Section 113-B of the Evidence Act
30
for the Court to have come to the conclusion that soon
before the death, the deceased was treated with cruelty
or harassed for or in connection with demand for dowry.
In this regard we have noticed that there is a material
in the form of testimony of PW1 and PW3. The marriage
between the accused-appellant and the deceased took place
on 24.1.1998 and it survived only for a little over three
(3) years. It is on 16.2.2001 that the deceased goes to
the house of PW3, her elder sister, spent 5 to 7 minutes,
according to the said witness, complained of cruelty or
harassment by the accused and her own daughter was with
her. On the same day, she goes to the PCO, phones her
father PW1 and tells him about the harassment. PW4 the
person working at the PCO has also stated that she was
weeping and the she made a call. PW1 has spoken about
the contents of the telephonic conversation namely, all
the accused were maltreating and taunting her and that
she was very much upset and the accused had thrown her
out from their house with the daughter and that she will
not be allowed to come back without a Maruti car or
Rupees two lakhs. If he is to be believed (In fact, two
courts have), this would amount to cruelty/harassment in
31
connection with demand for dowry. Therefore, the law
enjoins under Section 113-B of the Evidence Act drawing
of the presumption that the accused has committed the
dowry death.
27. Undoubtedly, the presumption is rebuttable at
the hands of the accused by adducing evidence and
discharging the reverse burden. Whether any such
evidence in discharge with reverse burden has been
successfully adduced and whether it has been considered,
is the next question. The judgment of the trial Court
would show that there is indeed a reference to the
contents of the deposition of PW5, PW6 and PW8.
28. Power under Article 136 seemingly, transcends
all limitations in regard to matters save where it is
expressly excluded. However, by way of self imposed
intrusions into such power, as also by way of deference
to the scheme of the Constitution, the principles we have
alluded to stand culled out. Apposite to the facts of
this appeal, the following principles must inform us:
1. Credibility of witnesses as commended to Courts
below is not ordinarily reappraised.
32
2. Is there misreading of evidence?
3. Is there any non-consideration of glaring
inconsistency in the evidence which demolishes the
prosecution’s case?
4. Are the findings inconsistent with the evidence?
5. Have the courts overlooked striking features in
the evidence or is their failure to consider
important piece of evidence?
6. Whether the evidence adduced by the prosecution
fall short of the test of reliability and
acceptability and it is therefore unsafe to act
upon it?
29. The marriage took place on 24.1.1998. According
to PW3 about 6 months after the marriage, demands were
raised for dowry. Either a Maruti car or Rs.2 lakhs was
the demand. There was physical cruelty according to PW1
father, and PW3 sister. In December, 2000 the deceased,
meet both PW1 along with PW3 and complained about threats
and beatings. The death took place in February, 2001.
33
30. The Troubling features - There is evidence, which
establishes that the father of the appellant contributed
to the continued higher education of the deceased. Is
that compatible with treating his daughter-in-law with
cruelty. The father-in-law stands acquitted by the trial
Court. The mother-in-law even according to PW3 met her
on 16.2.2001 and enquired about her daughter-in-law. PW3
told her that her sister was depressed and asked her to
take her home. PW3 states that the deceased told her
that on the night previous to 16.2.2001, the appellant
had hurled abuse on her father and when she prevented the
appellant from abusing her father, she was beaten even
more. If this be true, indeed, it is cruelty near, in
point of time and bearing a link proximate to the time of
her death immediately thereafter. (The doctor has
conducted post mortem on 28.2.2001. He has opined that
the probable time which elapsed between death and post-
mortem was about 12 days). This mean that the tragic
th th
death took place on the 16 or 17 of February, 2001. But
PW1 does not depose a word about the telephone call made
on the eve of 16.2.2001. There is evidence of PW3 that in
their estimation the status of the appellant was lower
34
and that they had represented that they had applied for
an industrial connection and would start their own
industry. That apart, Avtar Singh, the nephew of PW1,
who is referred to by PW1, as having direct knowledge of
certain aspects is not examined.
31. The trial Court has carefully discussed the two
versions canvassed. The questions which we posed as
troubling, most of them, was present in its mind. The
High Court has also referred to the defence evidence
including DW6 and DW8.
32. The trial Court, however, finds solace in
rejecting the defence version on the score that it cannot
be squared with the deceased visiting the home of PW3 on
16-02-2001, and it takes the view that she would have
been the last person for her to visit. It is also found
that the deceased did not go on being called by PW3. The
trial Court had the advantage of watching the demeanor of
the witnesses. We cannot hold that the view taken by the
trial Court as affirmed by the High Court is not
warranted as such by the materials on record. We cannot
possibly hold that the view taken by the courts is
35
manifestly perverse or that it is based on no evidence.
Even if we are persuaded to take a different view as
canvassed by the appellant we would not be justified in
interfering. See the observations in Mst. Dalbir Kaur's
case (supra).
33. The upshot of the above discussion is that we
are not persuaded to interfere. The appeal shall stand
dismissed.
…………………………….J.
(Ranjan Gogoi)
…………………………….J.
(Navin Sinha)
……………………………J.
(K.M. Joseph)
New Delhi;
September 26, 2018