Full Judgment Text
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CASE NO.:
Appeal (crl.) 756 of 1999
PETITIONER:
Harjit Singh
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 08/12/2005
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA :
Jasbir Kaur, a young woman, in her prime age of 22-23 years, died
on 26.7.1988. She died of poisoning. The poison is said to be aluminum
phosphide which is a common pesticide. She was married with the respondent
on 05.10.1986 in a village known as Maur Khurd. Her matrimonial home was
at Bhatinda, which is at a distance of 40 k.m. from Maur Khurd. She delivered
a male child at her parents house i.e. at Maur Khurd on 23.4.1988. The child,
however, died on 25.4.1988. The mother of the deceased P.W.-3 (Mukhtiar
Kaur) disclosed the said fact to her after about 20 days. The deceased came
back to her matrimonial home soon thereafter. A day prior to the date of
occurrence i.e. on 25.07.1988, her father Gurlal Singh (P.W.-2) came to see her
at Bhatinda and found her to be hale and hearty. He received the information of
her death on 26.07.1988 at about 1.00 PM at Maur Khurd. He took a bus and
reached Bhatinda at about 2.00 PM. He allegedly found the appellant, his
mother and brother sitting there. They allegedly slipped away from the house
one by one. He sent for his other relatives and after they came he left the house
for going to the Police Station. He on his way met the Inspector of Police at the
bus stand at about 11.00 PM. His statement was recorded at the bus station.
The mother of the appellant at the relevant time was said to be residing
with her husband at Ferozepur which is situated at a distance of 132 Km.
The defence of accused was that they were not present at the time of death
of the deceased. According to the appellant, he was at his work place till 12.30
PM while according to his brother Jaspal Singh, he at the relevant time was at
Ludhiana undergoing training. The defence of mother Mohinder Kaur was that
she at the relevant time had been at Ferozepur.
The inquest of the dead body was held at about 11.45 PM on 26.07.1988
and the post mortem was held on 27.7.1988. P.W.1 (Dr. Balbir Singh) who
conducted the post mortem could not ascertain the cause of death. The viscera
of the deceased was preserved and later on sent for chemical examination. The
chemical examiner submitted his report on 15.11.1988 opining that aluminum
phosphide was found therein.
On the basis of the statements made by Gurlal Singh (P.W.-2) before the
Investigating Officer Dharam Singh (P.W.7), a case under Section 304-B of the
Indian Penal Code was registered against the appellant, his brother Jaspal Singh
and mother Mohinder Kaur on the allegation that after solemnization of
marriage of Sarabjit Singh, the younger brother of the appellant, the accused
started taunting and harassing Jasbir Kaur for bringing less dowry as the wife of
Sarabjit Singh had brought Refrigerator, Television and Cooler. Allegedly, to
fulfil the said demand of the accused, the complainant paid a sum of Rs.3,000/-
around Diwali on one occasion and Rs.1,000/- on two other occasions within
two months therefrom. It was further alleged that in the month of March, 1988,
when Gurlal Singh went to the house of in-laws to bring her to her house as she
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was in the family way, the accused refused to send her with him. It was further
alleged that Raghbir Singh, the brother of the deceased came to Bhatinda when
he was informed by his sister that his father should take her away to Maur
Khurd otherwise the accused would kill her at the time of delivery. The
appellant was arrested on 05.08.1988.
The learned Addl. District and Sessions Judge convicted the appellant
herein as also his mother for commission of offence under Section 304-B of the
Indian Penal Code and they were sentenced to undergo rigorous imprisonment
for seven years. The learned Judge, however, recorded a judgment of acquittal
so far as Jaspal Singh is concerned . The learned Addl .District and Sessions
Judge in his judgment relying upon or on the basis of the evidence of the
prosecution witnesses arrived at a finding that the dowry was paid to the
appellant and his mother Mohinder Kaur and, thus, they were guilty of the
commission of offence.
The High Court, on the other hand, did not discuss the merit of the matter
so far as the appellant is concerned but concentrated on the role played by his
mother Mohinder Kaur and came to the finding that she did not accept any
dowry. Curiously enough, the High Court propounded a theory which was not
the prosecution case that the deceased must have consumed poison to finish
herself allegedly on the ground that when P.W.-2 (Gurlal Singh) came to see her
on 25.7.1988, he must have been insulted or hurt that his daughter is not happy
in the house of her in-laws.
We would proceed on the basis that in this case the prosecution has
established the case of payment of dowry to the extent of Rs.5,000/-. The
question, however, would remain as to whether the demand of dowry was soon
before the deceased was treated cruelly or harassed by the appellant. The
brother of the deceased was not examined. It was, therefore, not proved that
any apprehension was expressed by the deceased that she would be killed
during delivery of the child. The fact remains that she delivered the child at her
parents place. It is also accepted that she at the time of delivery had developed
certain complications as a result of which she had to be shifted to a nursing
home. There exists a dispute as who took her to the nursing home, the husband
or her father. But the fact remains that the delivery of the child was premature,
and the child expired within two days of its birth.
At this juncture, we may notice the deposition of the prosecution
witnesses.
P.W.-1 (Dr. Balbir Singh) opined that the death was due to taking of
poison. A contusion was also found on the dead body. The said witness,
however, explained the presence thereof stating "Contusion in question on the
right side of the neck which are faintly appears could be due to the irritation in
the mouth and neck as a result of irritation."
P.W.-2 (Gurlal Singh), father of the deceased, merely stated "My daughter
had died due to non-payment of dowry to the satisfaction of accused, by me."He
did not say that any other demand was made or his daughter was subjected to
any other form of cruelty or harassment. In cross-examination, he contended
that he had stated before the Investigating Officer that the accused persons
started taunting his daughter for not bringing Refrigerator, Cooler and
Television but such a statement was not found to have been made before the
Investigating Officer. He even did not make any statement before the police
that the accused persons either in unison or individually demanded dowry.
His statement was also recorded by a Magistrate holding the post of
D.O.R.G. It stands accepted that he did not make any statement before him in
regard to the demand of or taking of Rs.3,000/- by Harjit Singh for purchase of
Refrigerator, Cooler and Television although he made such a statement in court.
It appears from the records that he also made a statement before the D.O.R.G. to
the effect that his daughter and son-in-law collected Rs.3,000/- for purchasing a
stereo and two months thereafter, his daughter took Rs.1,000/- for installation of
hand-pump. He, thus, in a way contradicted himself as regard nature and
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purpose of demand. This belies the genesis of the prosecution case. Although
Sarabjeet Singh’s marriage and bringing of luxury items by his wife were said to
be the ground for demand of dowry, as we have noticed hereinbefore, he
contended that he paid Rs.3,000/- and Rs.1,000/- on two occasions as dowry
within two months thereafter i.e. between October and December, 1987 whereas
according to the defence, Sarabjeet Singh was married on 24.01.1988.
Curiously enough, P.W.3 (Mukhtiar Kaur) categorically admitted that she had
no grievance as against her son-in-law, nor did she ever make any complaint.
P.W.-4 (Ajaib Singh) is the brother of the complainant whose evidence is
not material for our purpose. P.W.7 (Dharam Singh) is the Investigating
Officer.
Concededly, there is no evidence on records to show that the deceased
was subjected to any cruelty or harassment between April, 1988 and the date of
his death. In the light of the above-mentioned evidence, the question which
arises for consideration is as to whether a case under Section 304-B of the
Indian Penal Code can be said to have been made out.
Section 304-B of the Indian Penal Code reads as under:-
"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."
A legal fiction has been created in the said provision to the effect that in
the event it is established that soon before the death, the deceased was
subjected to cruelty or harassment by her husband or any of his relative; for or
in connection with any demand of dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to have caused her death.
The Parliament has also inserted Section 113 B of the Indian Evidence Act by
Act No.43 of 1986 with effect from 1.5.1986 which reads as under :-
"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)."
From a conjoint reading of Section 304-B of the Indian Penal Code and
Section 113-B of the Indian Evidence Act, it will be apparent that a presumption
arising thereunder will operate if the prosecution is able to establish the
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circumstances as set out in Section 304-B of the Indian Penal Code.
The ingredients of the aforementioned provisions are :
(1) That the death of the woman caused by any burns or bodily injury or
in some circumstances which is not normal; (2) Such death occurs within 7
years from the date of her marriage (3) That the victim was subjected or cruelty
or harassment by her husband or any relative of her husband; (4) Such cruelty or
harassment should be for or in connection with demand of dowry; and (5) is
established that such cruelty and harassment was made soon before her death.
In the case of unnatural death of a married woman as in a case of this
nature, the husband could be prosecuted under Section 302, Section 304-B and
Section 306 of the Indian Penal Code. The distinction as regards commission of
an offence under one or the other provisions as mentioned hereinbefore came up
for consideration before a Division Bench of this Court in Satvir Singh & Ors.
v. State of Punjab and another, [(2001) 8 SCC 633], wherein it was held :
"Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and
the third is "at any time" after the marriage. The third
occasion may appear to be an unending period. But the
crucial words are "in connection with the marriage of
the said parties". This means that giving or agreeing to
give any property or valuable security on any of the
above three stages should have been in connection with
the marriage of the parties. There can be many other
instances for payment of money or giving property as
between the spouses. For example, some customary
payments in connection with birth of a child or other
ceremonies are prevalent in different societies. Such
payments are not enveloped within the ambit of "dowry".
Hence the dowry mentioned in Section 304-B should be
any property or valuable security given or agreed to be
given in connection with the marriage.
It is not enough that harassment or cruelty was
caused to the woman with a demand for dowry at some
time, if Section 304-B is to be invoked. But it should
have happened "soon before her death." The said phrase,
no doubt, is an elastic expression and can refer to a
period either immediately before her death or within a
few days or even a few weeks before it. But the
proximity to her death is the pivot indicated by that
expression. 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, have been the aftermath of such cruelty
or harassment. In other words, there should be a
perceptible nexus between her death and the dowry-
related harassment or cruelty inflicted on her. If the
interval elapsed between the infliction of such
harassment or cruelty and her death is vide the court
would be in a position to gauge that in all probabilities
the harassment or cruelty would not have been the
immediate cause of her death. It is hence for the court to
decide, on the facts and circumstances of each case,
whether the said interval in that particular case was
sufficient to snuff its cord from the concept "soon before
her death"."
Yet again in Hira Lal and Others v. State (Govt. of NCT ) Delhi,
[(2003) 8 SCC 80], this Curt observed that "The expression "soon before her
death" used in the substantive Section 304-B IPC and Section 113-B of the
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Evidence Act is present with the idea of proximity test. No definite period has
been indicated and the expression "soon before" is not defined. A reference to
the expression "soon before" used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court may presume that a man who
is in the possession of goods "soon after the theft, is either the thief or has
received the goods knowing them to be stolen, unless he can account for their
possession". The determination of the period which can come within the term
"soon before" is left to be determined by the courts, depending upon facts and
circumstances of each case. Suffice, however, to indicate that the expression
"soon before" would normally imply that the interval should not be much
between the cruelty or harassment concerned and the death in question. There
must be existence of a proximate and live link between the effect of cruelty
based on dowry demand and the death concerned. If the alleged incident of
cruelty is remote in time and has become stale enough not to disturb the mental
equilibrium of the woman concerned, it would be of no consequence."
The same opinion was expressed by the same learned Judge in Kaliya
Perumal and Another v. State of Tamil Nadu, [(2004) 9 SCC 157 Para 4] and
Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar, [(2005) 2 SCC
388, Para 10] See also State of A.P. v. Raj Gopal Asawa and Another,
[(2004) 4 SCC 470, Paras 10 and 11].
In the aforementioned situation, the presumption arising either under
Section 304-B of the Indian Penal Code or Section 113-B of the Indian
Evidence Act could not be invoked against the Appellant. The prosecution,
therefore, must be held to have failed to establish any case against the Appellant
herein.
Faced up with this situation, the learned counsel appearing on behalf of
the State relies upon a Judgment of this Court in K.Prema S.Rao and Another
v. Yadla Srinivasa Rao and others, [(2003) 1 SCC 217], wherein an
observation was made in the peculiar facts and circumstances of that case that
even if the accused is not found guilty for commission of an offence under
Section 304 and 304-B of the Indian Penal Code, he can still be convicted under
Section 306 IPC thereof.
Omission to frame charges under Section 306 in terms of Section 215 of
the Code of Criminal Procedure may or may not result in failure of justice, or
prejudice the accused.
It cannot, therefore, be said that in all cases, an accused may be held
guilty of commission of an offence under Section 306 of the Indian Penal Code
wherever the prosecution fails to establish the charge against him under Section
304-B thereof. Moreover, ordinarily such a plea should not be allowed to be
raised for the first time before the court unless the materials on record are such
which would establish the said charge against the accused.
Before invoking the provisions of Section 306 IPC, it is necessary to
establish that : (i) the deceased committed suicide, and (ii) she had been
subjected to cruelty within the meaning of Section 498A IPC.
Only in the event those facts are established, a presumption in terms of
Section 113A of the Indian Evidence Act could be raised. In the instant case,
the prosecution has not been able to prove that the deceased was subjected to
cruelty within the meaning of Section 498A IPC. No case that the deceased
committed suicide was also made out.
In K. Prema S. Rao (supra), it was found as of fact :
"Both the courts below have found the husband guilty
of cruel treatment of his wife and as a result the wife
committed suicide within seven years of their marriage. On
such evidence the presumption which arises under Section
113-A of the Evidence Act is that the husband abetted the
suicide. The word "cruelty" as mentioned in the Explanation
below Section 113-A of the Evidence Act has been given the
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same meaning as contained in the Explanation below Section
498-A IPC. On the facts found, "the wilful" conduct of the
husband in forcing the deceased to part with her land which
she had received in marriage as "stridhana" and for that
purpose concealing her postal mail was so cruel that she was
driven to commit suicide. A case of conviction and sentence
of Accused 1 under Section 306 IPC has thus clearly been
made out even though his acquittal for commission of the
offence of "dowry death" punishable under Section 304-B
IPC is not found liable to be disturbed."
In Satvir Singh (supra), it was observed :
"Learned Senior Counsel submitted that since the word
"cruelty" employed therein is a virtual importation of that
word from Section 498-A IPC, the offence envisaged in
Section 306 IPC is capable of enveloping all cases of suicide
within its ambit, including dowry-related suicide. According
to him, the second limb of the Explanation to Section 498-A
which defines the word "cruelty" is sufficient to clarify the
position. That limb reads thus:
"For the purposes of this section, ’cruelty’ means\027
*
(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."
At the first blush we thought that there was force in the
said contention but on a deeper analysis we found that the
contention is unacceptable. Section 306 IPC when read with
Section 113-A of the Evidence Act has only enabled the
court to punish a husband or his relative who subjected a
woman to cruelty (as envisaged in Section 498-A IPC) if
such woman committed suicide within 7 years of her
marriage. It is immaterial for Section 306 IPC whether the
cruelty or harassment was caused "soon before her death" or
earlier. If it was caused "soon before her death" the special
provision in Section 304-B IPC would be invocable,
otherwise resort can be made to Section 306 IPC."
The ingredients of Section 306 and Section 304-B are different and
distinct. In any event, no evidence has been brought on record to show that
there has been any act of omission or commission on the part of the accused,
before the death of the deceased to demonstrate that the appellant was
responsible for the same. We have noticed hereinbefore that the High Court, for
the first time, in its judgment on a hypothesis observed that when her father
came to see her, he must have been insulted or felt hurt as she might have been
subjected to harassment. Unfortunately, no evidence whatsoever has been
brought to our notice to enable us to sustain the said finding and in that view of
the matter we are unable to accept the submissions of the learned counsel
appearing for the Respondent State.
For the reasons aforementioned, we are of the opinion that the
impugned judgment of the High Court cannot be sustained which is set aside
accordingly.
The appeal is allowed. The Appellant is on bail. He is discharged
from his bail bonds.+
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