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Wednesday, September 4, 2013

for conviction under Section 304B of IPC, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Sans the requirement of seven years, in this case, the offence would fall only under Section 498A of IPC. And for that matter, sans any of the five ingredients discussed at Paragraph 6 above herein, the offence will fall out of Section 304B of IPC. It has to be noted that the deceased had two children, the son had died earlier and there is a surviving daughter who is stated to be around seven years. Whether the said age of the daughter is at the time of evidence or at the time of the death of the deceased, is not clear. Neither PW-1, father of the deceased nor PW- 2 Sarpanch or any other witness has given any evidence with regard to the date of marriage. No document whatsoever has been produced with regard to the marriage. There is no evidence even with regard to the date of birth of the children. Also, according to PW-1 father of the deceased, the marriage had taken place five to seven years back. It has to be noted that DW-1 elder devrani/sister-in-law of the deceased had stated in her evidence that the marriage had taken place around eleven years back. Nobody has even spoken on the exact date of marriage. The death reportedly took place on 06.04.1990. The evidence was recorded in 1996. The High Court counted the eleven years from the date of recording of the evidence. However, on going through the evidence, it is not at all clear as to whether the same is with respect to the date of tendering evidence or with respect to the date of the incident. Hence, we set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The conviction under Section 498A of the Indian Penal Code (45 of 1860) is confirmed. However, taking note of the late evening age of the appellant, the substantive sentence is limited to the period undergone by him during the investigation/trial.

                       published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40720
 IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                      CRIMINAL APPEAL NO. 1308 OF 2013


Gurdip Singh                                 … Appellant (s)

                                   Versus

State of Punjab                              … Respondent (s)


                               J U D G M E N T


KURIAN, J.:



1.    Close  to  be  called  a  centenarian,  the  appellant  is  before  us
challenging the conviction and sentence  under  Sections  498A/304B  of  the
Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’).

2.    Appellant is the second accused in Sessions Case No.  41/1991  on  the
file of Additional Sessions Judge, Amritsar. First accused is his  son.  The
prosecution case as succinctly summarized by the High Court in the  impugned
judgment is extracted below:

      “Harjit Kaur, daughter of Mohinder Singh was married with Mohan  Singh
      accused. Mohinder Singh along with Hari Singh Sarpanch,  who  was  his
      brother from the brotherhood, had gone to village Gharyala to see  his
      daughter Harjit Kaur because the in-laws of Harjit Kaur  were  in  the
      habit of picking up quarrels with her for bringing less dowry. The in-
      laws  of  Harjit  Kaur  used  to  pressurize  her  to  bring  scooter,
      refrigerator and cash from her parents. On her failure to do so,  they
      after conspiring with each other, threatened to  kill  her  by  giving
      some poisonous substance. Gurdip Singh, father-in-law of Harjit  Kaur,
      on many occasions told Harjit Kaur that in case she  failed  to  bring
      the above said articles before Rabi crop, then after murdering her, he
      will re-marry his son. This fact was disclosed to  Mohinder  Singh  by
      Harjit Kaur on many occasions but he ignored the same  with  the  hope
      that Harjit Kaur may settle in her in-laws house.

      The prosecution story further is  that  on  6.4.1990,  Mohinder  Singh
      along with Hari Singh had gone to the residential farm house of  Mohan
      Singh accused here the dead body of  Harjit  Kaur  was  lying  on  the
      ground. No one was present in the house. Mohinder Singh suspected that
      his daughter Harjit Kaur had consumed some poisonous substance out  of
      frustration or the accused have murdered her by administering her some
      poisonous substance. Hari Singh was deputed to  look  after  the  dead
      body.

      Mohinder Singh made his statement before the police on 6.4.1990 on the
      basis of which the present case was registered.

      The investigation in the case was conducted and after  the  completion
      of investigation, challan was presented against the appellants in  the
      Court.

      The accused were charge-sheeted under  Sections   498-A/304-B  IPC  to
      which they pleaded not guilty and claimed trial.

      To substantiate  the  charge  against  the  accused,  the  prosecution
      examined PW-1 Mohinder Singh, PW-2 Hari Singh, PW-3  Gurcharan  Singh,
      PW-4 Rishi Ram, PW-5 ASI Gulbag Singh, PW-6 Harbhajan Singh,  PW-7  SI
      Amrik Singh and PW-8 Dr. Ram Krishan Sharma.”

3.    The Sessions Court convicted both the accused under  Section  498A  of
IPC for rigorous imprisonment for a period of two years and fine of Rs.500/-
 each and, in default of payment of fine,  for  another  three  months,  and
under Section 304B of IPC for rigorous imprisonment  for  a  period  of  ten
years and fine of Rs.500/- each and, in default  of  payment  of  fine,  for
another three months. The sentences were ordered to run  concurrently.   The
High Court, in appeal, maintained the conviction but  reduced  the  sentence
under  Section  304B  of  IPC  to  seven  years  rigorous  imprisonment  and
confirmed the rest.
4.    It is reported that the husband-first accused Mohan Singh is no more.
5.    “Dowry death” in the Indian Penal Code was  introduced  under  Section
304B as per Act 43 of 1986. Under the said provision,  if  a  married  woman
dies,
(i)   on account of burns or bodily injury  or  dies  otherwise  than  under
      normal circumstances,
(ii)  such death occurs within seven years of marriage,
(iii) it is shown that she was subjected to cruelty  or  harassment  by  her
      husband or any relative,
(iv)  such cruelty or harassment be soon before her death and
(v)   such cruelty or harassment by the husband or his relative  be  or  for
      or in connection with demand for dowry,

such death is called dowry death under Section 304B of IPC and  the  husband
or relative shall be presumed to have caused the dowry death.  Section  498A
of IPC deals with the offence of cruelty by the husband or  relative.  If  a
married woman is subjected to cruelty by the husband or his relative, he  is
liable for conviction under Section 498A.  There  is  no  requirement  under
Section 498A that the cruelty should be within seven years of  marriage.  It
is also not invariably necessary under Section 498A that the cruelty  should
be in connection with the demand for dowry. It is interesting to  note  that
Section 498A was introduced  as  per  Act  46  of  1983  to  “suitably  deal
effectively not only with cases of dowry deaths but also  cases  of  cruelty
to married women by their in-laws” and Section 304B was  introduced  as  per
Act 43 of 1986 to make the penal provisions “more stringent and effective”.
                                                         (Emphasis supplied)

6.    In this  context,  the  background  for  the  amendments  would  be  a
relevant reference. In the 91st  Report  on  Dowry  Deaths  and  Law  Reform
submitted by Justice K. K. Mathew, Chairman, Law  Commission  of  India,  on
10.08.1983, it is stated at Paragraphs 1.3 to 1.5 as follows:
      “1.3  If, in a particular incident of dowry death, the facts are  such
      as to satisfy the legal ingredients of an offence already known to the
      law, and if those facts can be proved  without  much  difficulty,  the
      existing criminal law can be resorted to for bringing the offender  to
      book. In practice, however, two main impediments arise-


                 i) either the facts do not fully fit into  the  pigeon-hole
                    of any known offence: or
                ii) the peculiarities of the situation are such  that  proof
                    of directly  incriminating  facts  is  thereby  rendered
                    difficult.


           The first impediment mentioned above is aptly illustrated by the
      situation where a woman takes her life with her own hands, though  she
      is driven to it by ill-treatment. This situation may not fit into  any
      existing pigeon-hole in the list of offences recognized by the general
      criminal law of the country, except where there is definite  proof  of
      instigation, encouragement or other conduct that amounts to “abetment”
      of suicide. Though, according to newspaper reports,  there  have  been
      judgments of lower courts which seem to construe  “abetment”  in  this
      context widely, the position is not beyond doubt.

            The second situation mentioned above finds illustration in those
      incidents in which  even  though  the  circumstances  raise  a  strong
      suspicion that  the  death  was  not  accidental,  yet,  proof  beyond
      reasonable doubt may not be forthcoming that the case was  really  one
      of homicide. Thus, there is need to address oneself to the substantive
      criminal law as well as to the law of evidence.


      1.4   Speaking of the law of evidence, it may be mentioned that one of
      the devices by which the law usually tries to bridge the gulf  between
      one fact and another, where the gulf is so  wide  that  it  cannot  be
      crossed with the help of the normal rules of evidence, is  the  device
      of inserting presumptions. In this sense, it is possible  to  consider
      the question whether, on the topic under discussion,  any  presumption
      rendering the proof of facts in issue  less  difficult,  ought  to  be
      inserted into the law.


      1.5   Coming to substantive criminal law, if a deficiency is found  to
      exist in such law, it can be filled up only by creating a new offence.
      Before doing so, of course, the wise law maker  is  expected  to  take
      into account a number of aspects, including the nuances of ethics, the
      ever-fluctuating  winds  of  public  opinion,  the  Demands   of   law
      enforcement and practical realities.”
                                                         (Emphasis supplied)

7.    Though the expression “presumed” is not used  under  Section  304B  of
IPC, the words “shall be deemed” under Section  304B  carry,  literally  and
under law, the same meaning since  the  intent  and  context  requires  such
attribution. Section 304B of IPC on dowry death  and  Section  113B  of  the
Indian Evidence Act, 1872, on presumption, were introduced by the same  Act,
i.e., Act 43 of 1986, with effect from 19.11.1986, and Section 498A  of  IPC
and Section 113A of the Evidence Act were introduced  by  Act  46  of  1983,
with effect from 25.12.1983.

8.    The amendments under the Evidence Act are only  consequential  to  the
amendments under the Dowry Prohibition Act, 1961 and the Indian Penal  Code.
It is significant to note that under Section 113A, the expression is  “court
may presume” whereas under Section 113B,  the  expression  is  “court  shall
presume”. The Parliament did intend the provisions to be more stringent  and
effective in view of the growing  social  evil  as  can  be  seen  from  the
Statement of Objects and Reasons in the amending Act.
9.    Being a mandatory presumption on the  guilty  conduct  of  an  accused
under  Section  304B,  it  is  for  the  prosecution  to  first   show   the
availability of all the ingredients of  the  offence  so  as  to  shift  the
burden of proof in terms of Section 113B of the Evidence Act. Once  all  the
ingredients are present,  the  presumption  of  innocence  fades  away.  Yet
another reference to Paragraph 1.8 in the 91st Report of the Law  Commission
of India would be fruitful in this context:
      “1.8. Those who have studied crime and its incidence know that once  a
      serious crime is committed, detection is a difficult matter and  still
      more difficult is successful prosecution of the offender. Crimes  that
      lead to dowry deaths are almost invariably committed within  the  safe
      precincts of a residential house. The criminal  is  a  member  of  the
      family: other members of the family (if residing in  the  same  house)
      are either  guilty  associates  in  crime,  or  silent  but  conniving
      witnesses to it. In any case, the shackles of the family are so strong
      that truth may not come out of the chains. There would be no other eye
      witnesses, except for members of the family.”
                                                         (Emphasis supplied)

10.   Having carefully gone through the entire evidence  as  appreciated  by
both the Sessions Court as well as the High Court, we are  not  inclined  to
take a different view except on one aspect, viz., the date of  marriage.
As
far as other aspects regarding cruelty or harassment are concerned,  it  has
clearly  been  proved  in  the  evidence  of  PW-1   and   PW-2   that   the
appellant/accused was also taunting the deceased demanding dowry. They  were
all staying in the same premises. The issue had  also  been  brought  before
the Village Panchayat many times. The deceased was even sent  out  from  her
matrimonial home on this account. There is also evidence that  the  deceased
had been harassed by both accused before two weeks of her  death.  Yet  with
all these,
for conviction under Section 304B of IPC,  it  is  obligatory  on
the part of the prosecution to establish  that  the  death  occurred  within seven years of marriage. Sans the requirement of seven years, in this  case, the offence would fall only under Section 498A of IPC. And for that  matter, sans any of the five ingredients discussed at Paragraph 6 above herein,  the
offence  will  fall  out  of  Section  304B  of  IPC.  
The  Sessions  Court,
unfortunately, has not addressed this crucial aspect and has  gone  only  on
assumptions with regard to the date of marriage.
It has  to  be  noted  that
the deceased had two children, the son had  died  earlier  and  there  is  a
surviving daughter who is stated to be around seven years. 
Whether the  said
age of the daughter is at the time of evidence or at the time of  the  death
of the deceased, is not clear. Neither PW-1, father of the deceased nor  PW-
2 Sarpanch or any other witness has given any evidence with  regard  to  the
date of marriage. No document whatsoever has been produced  with  regard  to
the marriage. There is no evidence even with regard to the date of birth  of
the children. Also, according to PW-1 father of the deceased,  the  marriage
had taken place five to seven years back. It  has  to  be  noted  that  DW-1
elder devrani/sister-in-law of the deceased had stated in her evidence  that
the marriage had taken place around  eleven  years  back.  Nobody  has  even
spoken on the exact date of marriage. The death  reportedly  took  place  on
06.04.1990. The evidence was recorded in 1996. The High  Court  counted  the
eleven years from the date of recording of the evidence. However,  on  going
through the evidence, it is not at all clear as to whether the same is  with
respect to the date of tendering evidence or with respect  to  the  date  of
the incident. In view of the mandatory  presumption  of  law  under  Section
304B of IPC/113B of the Evidence Act, it is obligatory on the  part  of  the
prosecution to establish that the  death  occurred  within  seven  years  of
marriage. Section 304B of IPC permits presumption of law  only  in  a  given
set of facts and not presumption of fact. Fact is  to  be  proved  and  then
only, law will presume. In the  instant  case,  prosecution  has  failed  to
establish the crucial fact on the death  occurring  within  seven  years  of
marriage.

11.   Hence, we set aside the conviction  of  the  appellant  under  Section
304B of the Indian Penal Code (45 of 1860).  
The  conviction  under  Section
498A of the Indian Penal Code (45 of 1860)  is  confirmed.  
However,  taking
note of the late evening age of the appellant, the substantive  sentence  is
limited to the period undergone by him during the investigation/trial.

12.   The appeal is allowed as above.

                                                      ……………………………….…..…………J.
                                    (SUDHANSU JYOTI MUKHOPADHAYA)





                                                    ……….………...……..……………………J.
                                           (KURIAN JOSEPH)
New Delhi;
September 3, 2013.




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                                                                  REPORTABLE


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