advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, January 15, 2015

CRIMINAL APPEAL No. 1592 OF 2011 SHER SINGH @ PARTAPA .....APPELLANT Versus STATE OF HARYANA .....RESPONDENT

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No. 1592 OF 2011


SHER SINGH @ PARTAPA                                    .....APPELLANT

      Versus

STATE OF HARYANA                                          .....RESPONDENT



                               J U D G M E N T


VIKRAMAJIT SEN, J.


1     This Appeal has been  filed  against  the  Judgment  dated  16.12.2010
passed by the learned Single Judge of the High Court of Punjab  and  Haryana
dismissing the appeal and  affirming  the  conviction  and  sentence  passed
against the Appellant by the Trial Court under Sections  304B  and  498A  of
the Indian Penal Code.   The marriage between the deceased,  Harjinder  Kaur
and the  accused-Appellant  took  place  on  22.2.1997.   The  case  of  the
prosecution is that two months prior to her death on one of  her  visits  to
her parental home,  the  deceased  informed  her  two  brothers  of  cruelty
connected with dowry demands meted out to her by her husband and his  family
members.   They, thereafter,  conveyed  this  information  to  their  uncle-
Complainant, Angrej Singh viz. that the accused and  his  family  have  been
harassing her with a demand for a motorcycle and a fridge.  The  Complainant
advised her to return to her matrimonial house with  the  assurance  that  a
motorcycle and  a  fridge  would  be  arranged  upon  the  marriage  of  her
brothers.  On 7.2.1998, one Rajwant Singh informed the Complainant that  the
deceased had committed suicide by consuming some poisonous substance at  her
matrimonial house in  village  Danoli.   The  Complainant,  along  with  the
brothers of the deceased and other members of the  village,  rushed  to  the
matrimonial house of the deceased and after confirming her death, lodged  an
 FIR on the next day i.e., on 8.2.1998.

2     In all, four accused persons, namely, Appellant/Sher Singh  (husband),
Devinder  Singh  (brother-in-law),  Jarnail   Singh   (father-in-law),   and
Sukhvinder Kaur (mother-in-law) were tried by the  learned  Sessions  Judge,
Karnal under Sections 304B and 498A IPC.  After considering the material  on
record the  learned  Sessions  Judge  had  convicted  all  the  accused  and
sentenced them to  undergo  rigorous  imprisonment  for  seven  years  under
Section 304B; and to undergo rigorous imprisonment for three  years  and  to
pay a fine of Rs.5,000/- and,  in  default  of  payment  of  such  fine,  to
further undergo rigorous imprisonment for  a  period  of  six  months  under
Section 498A.

3     Two separate appeals were filed before the High Court  of  Punjab  and
Haryana at Chandigarh, one by Devinder  Singh  (brother-in-law)  along  with
Jarnail Singh (father-in-law) and another  by  the  Appellant  herein.   The
High Court allowed the appeal filed by Devinder Singh and Jarnail Singh  and
acquitted them with an observation that the prosecution has failed to  prove
any torture committed by them and, therefore, Sections  304B  and  498A  IPC
were not attracted.  Quite palpably, unlike the Trial Court, the High  Court
construed even Section 304B  requires  the  prosecution  to  'prove'  beyond
reasonable doubt in contradistinction to 'show' the  participative  role  of
the husband's relatives as a prelude to the deemed guilt  kicking   in.   It
was also observed by the High Court that in such cases there is  a  tendency
of roping in all the family members disregarding the fact that they  resided
separately.  However, the  Appeal  filed  by  the  Appellant  was  dismissed
holding that it was for the accused/Appellant to explain that the  unnatural
death of his wife Harjinder Kaur was not due to cruelty meted out to her  in
the matrimonial home and that he has failed in doing so.

4     Learned Counsel appearing on behalf of  the  Appellant  has  submitted
that the conviction of the Appellant is liable to be set aside as  there  is
a specific finding of the learned Sessions Court that there is  no  positive
evidence on record to the effect that the  accused  persons  ever  raised  a
demand for a motorcycle and a fridge and that both  the  Courts  below  have
failed to fully appreciate the inconsistencies in the depositions of  PWs  4
and 7, which could not be relied upon as  both  were  interested  witnesses.
It is further submitted that the High Court, on same set  of  pleadings  and
evidence, was  not  justified  in  acquitting  the  other  accused  persons,
namely, Devinder Singh (brother-in-law) and Jarnail  Singh  (father-in-law),
while convicting the  Appellant.   In  support  of  this  argument,  learned
Counsel for the Appellant has relied  on  the  decision  of  this  Court  in
Narayanamurthy v. State  of  Karnataka  (2008)  16  SCC  512.   It  is  also
contended that the prosecution has not  established  that  soon  before  her
death, the deceased had been subjected  to  any  cruelty  or  harassment  in
connection with any demand for dowry.   Support has been  drawn  from  Durga
Prasad v. State of Madhya Pradesh (2010) 9 SCC 73.

5     Out the outset we shall briefly analyse the  cauldron  of  legislation
passed by Parliament on the subject which we  are  presently  engaged  with.
Confronted with the  pestilential  proliferation  of  incidents  of  married
women being  put  to  death  because  of  avaricious  and  insatiable  dowry
demands, and/ or of brides being driven to take their own lives  because  of
cruelty meted out to them by their husband and his family  also  because  of
dowry expectations, Parliament enacted the Dowry Prohibition Act, 1961  (for
short 'the Dowry Act') in an endeavour  to  eradicate  the  social  evil  of
giving and taking of dowry.  Section 2 thereof defines 'dowry' as  including
any property or valuable security given or agreed to be given by  one  party
to the other party around  the  time  of  marriage.    Section  3  makes  it
punishable to give or take or abet  the  giving  or  taking  of  dowry;  the
punishment for the offence being not less than five years, and with  a  fine
of Rs.15,000/- or the amount of the value of such dowry, whichever is  more.
  Sub-section (2)  thereof understandably makes an exclusion in  respect  of
presents given at the time of marriage provided they  are  of   a  customary
nature and  the  value  thereof  is  not  excessive  having  regard  to  the
financial status of the concerned parties.   This Section also mandates  the
drawing up of a list of presents  received  in  contemplation  of  marriage.
Section 4 makes it punishable even to demand dowry and if any  agreement  is
entered into for the giving or taking of dowry, Section  5  makes  it  void.
Section 6 clarifies that where any dowry is received  by  any  person  other
than the woman in connection with whose marriage it is  given,  it  must  be
transferred to her within three months of marriage or receipt of the  dowry.
 The passing of this statute, however, did  not  eradicate  the  scourge  of
dowry demands, resulting in Parliament devoting its attention yet  again  to
what was required to free society of this pernicious practice.

6     As is evident from a perusal of the Statement of Objects  and  Reasons
to the  Criminal  Law  (Second  Amendment)  Act,  1983  [Act  46  of  1983],
Parliament continued to be concerned with the  increasing  number  of  dowry
deaths.   By this legislation Chapter XX A was introduced  into  the  Indian
Penal Code (IPC) containing the solitary Section 498A,  in  order  to  "deal
effectively not only with cases of dowry deaths, but also cases  of  cruelty
to married women by their in-laws."   Conspicuously, this Section  does  not
employ  the  word  'dowry'  at  all.    In  essence,  the  amendment   makes
matrimonial cruelty to the wife punishable  with  imprisonment  for  a  term
which may extend to three years together with  fine.    The  Explanation  to
Section 498A defines 'cruelty' in Clause (a) to  the  Explanation  to  first
mean wilful conduct as is likely to drive the woman to commit suicide or  to
cause grave injury or danger to her life.  Since there  is  no  allusion  to
dowry it converts cruelty, which would ordinarily entitle the wife  to  seek
a dissolution of her marriage, into a  criminal  act.    Parliament  rightly
restricted the subject offence to only cruelty perpetuated  on  women  since
their emancipation, in meaningful terms, largely  remains  a  mirage.    One
can only optimistically hope that the increasing literacy  amongst  females,
as also amendments in Hindu Law granting a daughter a share in her  father's
estate, will sooner than later put an end to this malaise.   As we  are  not
concerned in this Appeal with events falling within the ambit of Clause  (a)
of the Explanation, we shall desist from recording  any  further  reflection
on the sweep and intent and  possible  incongruities  contained  therein  as
such an exercise on our part would avoidably add to the  bludgeoning  burden
of obiter dicta, which  invariably  causes  confusion.    Secondly,  broadly
stated, Clause (b) to  the  Explanation  of  Section  498A  IPC,  postulates
harassment meted out to the woman  with  a  view  to  coercing  her  or  her
relatives  to  meet  any  unlawful  demand  for  any  property  or  valuable
security.  Although this Clause does not employ  the  word  'dowry',  it  is
apparent that its object is to  combat  this  odious  societal  excrescence.
Act 46 of 1983 simultaneously incorporated changes in Section 174(3) of  the
Cr.P.C. pertaining to the suicide or death of a woman within seven years  of
her marriage; it mandated the examination by the nearest  Civil  Surgeon  of
the body of the unfortunate woman.   In addition thereto, Section  113A  was
introduced into the Indian Evidence Act, 1872.   [Although not  relevant  to
the present context, it is poignant that even though Section 113  was  under
its active scrutiny, Parliament did not think it  necessary  to  excise  the
existing and entirely irrelevant Section 113 which speaks of the cession  of
'British' territory to any 'Native State'].  Section 113A,  introduced  into
the Evidence Act by Clause 7 of Act 46 of  1983,  specifies  that  when  the
question is whether the commission of suicide by a woman  had  been  abetted
by her husband or his relative  and it  is  shown  that  she  has  committed
suicide within a period of seven years from the date  of  her  marriage  and
that her husband or such relative  of  her  husband  had  subjected  her  to
cruelty,  the  Court  may  presume,  having  regard   to   all   the   other
circumstances of the case,  that  such  suicide  had  been  abetted  by  her
husband or by relatives of her husband.

7      Within  the  short  span  of  three  years  Parliament  realized  the
necessity to make the  law  more  stringent  and  effective  by  introducing
amendments to the Dowry Act, as well as the IPC by enacting Act 43 of  1986.
  These amendments, inter alia, made the offences dealt with  in  the  Dowry
Act cognizable for certain purposes and also made them non-bailable as  well
as non-compoundable.   By the introduction of Section 8A of  the  Dowry  Act
the burden of proof was reversed in respect of prosecutions  for  taking  or
abetting the taking or demanding  of  any  dowry  by  making  the  concerned
person responsible for proving that he had not committed any  such  offence.
Contemporaneously Section 304B was inserted into the IPC.   The newly  added
Section stipulates that 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.  Sub-section (2)  makes  this  offence  punishable
with imprisonment for a term which shall not be less than  seven  years  and
which may extend to  imprisonment  for  life.    Section  113B  was  further
incorporated into the Evidence Act; [yet again  ignoring  the  futility,  if
not ignominy, of retaining  the  withered  appendage  in  the  form  of  the
existing Section 113, and further perpetuating an anachronism.]     Be  that
as may be, the newly introduced Section 113B states that when  the  question
is whether a person has committed the death of a married  woman  and  it  is
shown that soon before her death such  woman  had  been  subjected  by  such
person to cruelty or harassment or in connection with any demand for  dowry,
the Court shall presume that  such  person  has  caused  dowry  death.   The
Explanation harks back to the simultaneously added Section 304B of  the  IPC
for the definition of  dowry  death,  clarifying  thereby  that  the  person
alluded to in this Section is her husband or any relative  of  her  husband.
It is noteworthy that whilst  Section  113A  of  the  Evidence  Act  reposes
discretion in the Court to draw  a  presumption  so  far  as  the  husband's
abetment in his wife's suicide, Parliament has mandated the  Court  to  draw
at least an adverse inference under Section 113B in the  event  of  a  dowry
death.   It seems to us that where a wife is driven to the extreme  step  of
suicide it would be reasonable to assume an  active  role  of  her  husband,
rather than leaving it to the discretion of the Court.

8     The legal regime pertaining to the  death  of  a  woman  within  seven
years of her marriage thus has numerous features, inter alia:

the meaning of "dowry" is as placed in Section 2 of  the  Dowry  Prohibition
Act.
dowry death stands defined for all purposes in Section 304B of the  IPC.  It
does exclude death in normal circumstances.
 If death is a result of burns or bodily injury,  or  otherwise  than  under
normal circumstances, and it occurs within seven years of the marriage  and,
it is 'shown' in contradistinction to 'proved' that soon  before  her  death
she was subjected to cruelty or harassment by her husband or his  relatives,
and the cruelty or harassment is connected with a demand of dowry, it  shall
be a dowry death, and the husband  or  relative  shall  be  deemed  to  have
caused her death.
To borrow from Preventive Detention jurisprudence - there  must  be  a  live
link between the cruelty emanating from a dowry demand and the  death  of  a
young married woman, as is sought to be indicated by the words "soon  before
her death", to bring  Section  304B  into  operation;  the  live  link  will
obviously be broken if the said cruelty does not  persist  in  proximity  to
the untimely and abnormal death.   It cannot be confined in terms  of  time;
the query of this Court in the context of condonation of delay in filing  an
appeal - why not minutes and second - remains apposite.
(v)   the deceased woman's body has to be forwarded for examination  by  the
nearest Civil Surgeon.
(vi)   once the elements itemised in (iii) above  are  shown  to  exist  the
husband or relative   shall be deemed to have caused her death.
(vii)   the consequences and ramifications of this 'deeming'  will  be  that
the prosecution does not have to prove anything  more,  and  it  is  on  the
husband or his concerned  relative  that  the  burden  of  proof  shifts  as
adumbrated in Section  113B,  which  finds  place  in  Chapter  VII  of  the
Evidence Act.    This Chapter  first  covers  'burden  of  proof'  and  then
"presumption", both being constant bed-fellows.    In  the  present  context
the deeming or presumption of responsibility of death are synonymous.

9     Death can be accidental, suicidal or homicidal.   The first type is  a
tragedy and no criminal complexion is conjured  up,  unless  statutorily  so
devised, as in Section 304A; but even there the culpable act is that of  the
person actually causing the death.  It seems to us that Section 304B of  the
IPC, inasmuch as it also takes within its  contemplation  "the  death  of  a
woman ..... otherwise than under normal circumstances", endeavours to  cover
murders masquerading as accidents.    Justifiably, the suicidal death  of  a
married woman who was meted out with  cruelty  by  her  husband,  where  her
demise occurred within seven years of marriage in connection  with  a  dowry
demand should lead to prosecution and punishment under Sections 304B  and/or
306 of the IPC.    However, if the perfidious harassment and cruelty by  the
husband is conclusively proved by him to have had no causal connection  with
his cruel behaviour based on  a  dowry  demand,  these  provisions  are  not
attracted as held in  Bhagwan  Das  v.  Kartar  Singh  (2007)  11  SCC  205,
although some reservation may remain regarding the reach of Section 306.

10    It is already empirically evident that the  prosecution,  ubiquitously
and in dereliction of duty, in the case of an  abnormal  death  if  a  young
bride confines its  charges  to  Section  304B  because  the  obligation  to
provide proof becomes least burdensome for  it;  this  is  the  significance
that attaches to a deeming provision.  But,  in  any  death  other  than  in
normal circumstances, we see no justification for not citing either  Section
302 or Section 306, as the circumstances of the case call for.    Otherwise,
the death would logically fall in the category of an  accidental  one.    It
is not sufficient  to  include  only  Section  498A  as  the  punishment  is
relatively light.   Homicidal  death  is  chargeable  and  punishable  under
Sections 302 and 304B if circumstances prevail triggering these  provisions.
  This Court has repeatedly reiterated this position, including in State  of
Punjab v. Iqbal Singh, 1991 (3) SCC  1  and   quite  recently  in  Jasvinder
Saini v. State (Govt. of NCT of Delhi) 2013 (7) SCC 256.

11    Some doubts remain on the aspect of presumption of  innocence,  deemed
culpability and burden of proof.  One of our Learned Brothers has in  Pathan
Hussain  Basha  v.  State  of  Andhra  Pradesh  (2012)  8  SCC  594,   after
extensively extracting from the  previous  judgment  authored  by  him  (but
without indicating so) expressed two opinions - (a) that Article 20  of  the
Constitution of India contains a presumption of innocence  in  favour  of  a
suspect and, (b) that the concept of deeming fiction  is  hardly  applicable
to  criminal  jurisprudence.    The  logical  consequence  of   both   these
conclusions would lead to the striking down of Section 8A of the Dowry  Act,
Section 113B of the Evidence Act, and possibly Section 304B of the IPC,  but
neither decision does so.  So far as  the  first  conclusion  is  concerned,
suffice it to reproduce Article 20 of the Constitution:

20. Protection in respect of conviction for offences.-(1)  No  person  shall
be convicted of any offence except for violation of a law in  force  at  the
time of the commission of the act charged as an offence,  nor  be  subjected
to a penalty greater than that which might have  been  inflicted  under  the
law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for  the  same  offence  more
than once.
(3) No person accused of any offence shall be  compelled  to  be  a  witness
against himself.


Even though there may not be any Constitutional protection  to  the  concept
of presumption of innocence, this is so deeply ingrained in all  Common  Law
legal systems so as to render it ineradicable even in India, such  that  the
departure or deviation from this  presumption  demands  statutory  sanction.
This is what the trilogy of dowry legislation has endeavoured to ordain.

12    In our opinion, it is beyond cavil that where the same  word  is  used
in a  section  and/or  in  sundry  segments  of  a  statute,  it  should  be
attributed the same meaning, unless  there  are  compelling  reasons  to  do
otherwise.  The obverse is where  different  words  are  employed  in  close
proximity, or in the same section, or in the same enactment, the  assumption
must be that the legislature intended them to depict  disparate  situations,
and  delineate  dissimilar  and  diverse  ramifications.   Ergo,  ordinarily
Parliament could not have proposed to ordain  that  the  prosecution  should
"prove" the existence of a vital sequence of facts, despite having  employed
the word "shown" in Section 304B.  The question is whether these  two  words
can be construed as synonymous.  It seems to us that if the  prosecution  is
required to prove, which always means beyond reasonable doubt, that a  dowry
death has been committed, there is a risk that  the  purpose  postulated  in
the provision may  be  reduced  to  a  cipher.   This  method  of  statutory
interpretation has consistently been disapproved and  deprecated  except  in
exceptional instances where the syntax permits reading down  or  reading  up
of some words of the subject provisions.

13    In Section 113A of the Evidence Act Parliament has, in the case of   a
wife's suicide, "presumed" the guilt of the husband and the members  of  his
family.   Significantly, in Section 113B which  pointedly  refers  to  dowry
deaths, Parliament has again employed the  word  "presume".     However,  in
substantially similar circumstances, in the  event  of  a  wife's  unnatural
death, Parliament has in Section 304B "deemed" the guilt of the husband  and
the members of his family.   The Concise Oxford Dictionary defines the  word
"presume" as: supposed to be true, take  for  granted;  whereas  "deem"  as:
regard, consider; and whereas "show" as: point out and prove.   The  Black's
Law Dictionary (5th Edition) defines the word "show" as-  to  make  apparent
or clear by  the  evidence,  to  prove;  "deemed"  as-  to  hold,  consider,
adjudge, believe, condemn, determine, construed as if  true;  "presume"  as-
to believe or accept on probable evidence; and  "Presumption",  in  Black's,
"is a rule of law, statutory or judicial, by which finding of a  basic  fact
gives rise to existence of presumed fact, until  presumption  is  rebutted."
The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive  yet
succinct definition of burden of proof which is worthy of reproduction:

"Burden of Proof: The duty of a party to  litigation  to  prove  a  fact  or
facts in issue.  Generally the burden of proof  falls  upon  the  party  who
substantially asserts the truth of a particular  fact  (the  prosecution  or
the plaintiff).  A distinction is drawn between the  persuasive  (or  legal)
burden, which is carried by the party who as a matter of law will  lose  the
case if he fails to prove the fact  in  issue;  and  the  evidential  burden
(burden of adducing evidence or burden of going forward), which is the  duty
of showing that there is sufficient evidence to raise an issue fit  for  the
consideration of the trier of fact as to the existence or  non-existence  of
a fact in issue.
      The normal rule is that a defendant is presumed to be  innocent  until
he is proved guilty; it is therefore the duty of the  prosecution  to  prove
its case by establishing both the actus reus of the crime and the mens  rea.
 It must first satisfy the evidential burden to show  that  its  allegations
have something to support them.  If  it  cannot  satisfy  this  burden,  the
defence may submit or the judge may direct that there is no case to  answer,
and the  judge  must  direct  the  jury  to  acquit.   The  prosecution  may
sometimes rely on presumptions of fact to satisfy the evidential  burden  of
proof (e.g. the fact that a woman was subjected to  violence  during  sexual
intercourse will normally raise a presumption to support a  charge  of  rape
and prove that she did not  consent).   If,  however,  the  prosecution  has
established a basis for its case, it  must  then  continue  to  satisfy  the
persuasive burden by proving its case beyond  reasonable  doubt  (see  proof
beyond reasonable doubt).  It is the duty of the  judge  to  tell  the  jury
clearly that the prosecution must prove its case and that it must  prove  it
beyond reasonable doubt; if he does  not  give  this  clear  direction,  the
defendant is entitled to be acquitted.
      There are some exceptions to the normal rule that the burden of  proof
is upon the prosecution.  The main exceptions are as follows. (1)  When  the
defendant admits the elements of the crime (the actus  reus  and  mens  rea)
but pleads a special defence, the evidential burden is  upon  him  to  prove
his defence.  This may occur, the example, in a prosecution  for  murder  in
which  the  defendant  raises  a  defence  of  self-defence.  (2)  When  the
defendant pleads automatism, the evidential burden is  upon  him.  (3)  When
the defendant pleads insanity, both the  evidential  and  persuasive  burden
rest upon him.  In this case, however, it is sufficient  if  he  proves  his
case on a balance of probabilities (i.e. he must persuade the jury  that  it
is more likely that he is telling the truth than not).  (4)  In  some  cases
statute expressly places a persuasive burden on the defendant; for  example,
a person who carries an offensive weapon in public is guilty of  an  offence
unless he proves that he had lawful authority or  a  reasonable  excuse  for
carrying it".


14    As is already noted above,  Section  113B  of  the  Evidence  Act  and
Section 304B of the IPC  were  introduced  into  their  respective  statutes
simultaneously  and,  therefore,  it  must  ordinarily   be   assumed   that
Parliament  intentionally  used  the  word  'deemed'  in  Section  304B   to
distinguish this provision from the others.   In actuality, however,  it  is
well nigh impossible to give a sensible and legally  acceptable  meaning  to
these provisions, unless the word 'shown' is used as synonymous  to  'prove'
and the word 'presume' as freely interchangeable  with  the  word  'deemed'.
In the realm of civil and fiscal law, it is  not  difficult  to  import  the
ordinary meaning of the word 'deem' to denote a set of  circumstances  which
call to be construed contrary to  what  they  actually  are.    In  criminal
legislation, however, it is unpalatable to adopt this approach by rote.   We
have the high authority of the Constitution Bench  of  this  Court  both  in
State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953  SC
333 and State of Tamil Nadu v. Arooran Sugars  Limited  (1997)  1  SCC  326,
requiring the Court to ascertain the purpose behind  the  statutory  fiction
brought about by the use of the word 'deemed' so as to give full  effect  to
the legislation and carry it to its logical conclusion.   We  may  add  that
it is generally posited that there are rebuttable as  well  as  irrebuttable
presumptions, the latter oftentimes assuming an artificiality  as  actuality
by  means  of  a  deeming  provision.    It   is   abhorrent   to   criminal
jurisprudence to adjudicate a person guilty of an  offence  even  though  he
had  neither  intention  to  commit  it  nor  active  participation  in  its
commission.   It is after deep cogitation that we consider it imperative  to
construe the word 'shown' in Section  304B  of  the  IPC  as  to,  in  fact,
connote 'prove'.   In other words, it is for the prosecution to  prove  that
a 'dowry death' has occurred, namely, (i) that the  death  of  a  woman  has
been caused in abnormal circumstances by her having been  burned  or  having
been bodily injured, (ii) within seven years of a marriage, (iii)  and  that
she was subjected to cruelty or harassment by her husband  or  any  relative
of her husband, (iv) in connection with any demand for dowry  and  (v)  that
the cruelty or harassment meted out  to  her  continued  to  have  a  causal
connection or a live link with the demand of dowry.  We are aware  that  the
word 'soon' finds place in Section 304B; but we would  prefer  to  interpret
its use not in terms  of  days  or  months  or  years,  but  as  necessarily
indicating that the demand for dowry should not be stale  or  an  aberration
of the past, but should be the continuing cause for the death under  Section
304B or the suicide under Section 306 of the  IPC.   Once  the  presence  of
these concomitants are established or shown or proved  by  the  prosecution,
even by preponderance of possibility, the initial presumption  of  innocence
is  replaced  by  an  assumption  of  guilt  of   the   accused,   thereupon
transferring the heavy burden  of  proof  upon  him  and  requiring  him  to
produce evidence dislodging his guilt, beyond reasonable  doubt.   It  seems
to us that what Parliament intended by using  the  word  'deemed'  was  that
only preponderance of  evidence  would  be  insufficient  to  discharge  the
husband or his family members of their guilt.  This interpretation  provides
the accused  a  chance  of  proving  their  innocence.   This  is  also  the
postulation of Section 101 of the Evidence  Act.   The  purpose  of  Section
113B of the Evidence Act and Section 304B of the IPC, in our opinion, is  to
counter what is commonly encountered - the lack or the absence  of  evidence
in the case of suicide or death of a woman within seven years  of  marriage.
  If the word "shown" has to be given its ordinary  meaning  then  it  would
only require the prosecution to merely present its evidence  in  Court,  not
necessarily through oral deposition, and thereupon  make  the  accused  lead
detailed  evidence  to  be  followed  by  that  of  the  prosecution.   This
procedure is unknown to Common Law systems, and beyond the contemplation  of
the Cr.P.C.

15    The width and amplitude of a provision deeming the guilt of  a  person
in a legal system founded on a Constitution needs to  be  briefly  reflected
on.   The Constitution is the grundnorm on which the legal framework has  to
be erected and its  plinth  cannot  be  weakened  for  fear  of  the  entire
structure falling to the ground.   If the Constitution expressly affirms  or
prohibits  particular state of affairs, all statutory provisions  which  are
incongruent  thereto must be held as ultra vires and,  therefore,  must  not
be adhered to.   We have already noted that Article 20 of  our  Constitution
while not affirming the presumption  of  innocence  does  not  prohibit  it,
thereby, leaving it to Parliament to ignore it whenever found by  it  to  be
necessary or expedient.   A percutaneous scrutiny reveals  that  some  legal
principles such as presumption of innocence  can  be  found  across  a  much
wider  legal  system,  ubiquitously  in   the   Common   Law   system,   and
restrictively in the Civil Law system.  It seems to us that the  presumption
of innocence is one such legal principle which strides the  legal  framework
of several countries owing allegiance to the Common Law; even  International
Law  bestows  its  imprimatur  thereto.   Article  11.1  of  the   Universal
Declaration of Human Rights, 1948 states - "Everyone charged  with  a  penal
offence has the right to be presumed innocent until proved guilty  according
to law in a public trial at which he has had all  the  guarantees  necessary
for his defence."   Article 14(3)(g) of the International Covenant on  Civil
and Political Rights, 1966, assures as a  minimum  guarantee  that  everyone
has a right not to be compelled to testify against  himself  or  to  confess
guilt.   Article 6 of the European Convention for the Protection  of   Human
Rights and Fundamental Freedoms, firstly,  promises  the  right  to  a  fair
trial and secondly, assures that anyone  charged  with  a  criminal  offence
shall be presumed innocent until proved guilty according to  law.    We  may
immediately emphasise that the tenet of presumed innocence will always  give
way to explicit legislation to the contrary.   The presumption of  innocence
has also been recognised in certain  circumstances  to  constitute  a  basic
human right.   Parliament, however, has been tasked with the  responsibility
of locating myriad competing, if not conflicting,  societal  interests.   It
is  quite  apparent  that  troubled  by  the  exponential  increase  in  the
incidents of bride burning, Parliament thought  it  prudent,  expedient  and
imperative to shift the burden of proof in contradistinction to the onus  of
proof on to the husband and his relatives in the cases  where  it  has  been
shown that a dowry death has occurred.   The inroad into or dilution of  the
presumption  of  innocence  of  an  accused  has,  even  de  hors  statutory
sanction, been recognised by Courts in those cases where death occurs  in  a
home where only the other spouse is present; as also where an individual  is
last seen with the deceased.   The deeming provision  in  Section  304B  is,
therefore, neither a  novelty  in  nor  an  anathema  to  our  criminal  law
jurisprudence.[See Mir Mohammad Omar and Subramaniam v. State of Tamil  Nadu
(2009) 14 SCC 415.

16    It has already been pointed out that both in Pathan Hussain  Basha  as
well as in Ashok Kumar v. State of Haryana 2010 (12) SCC  350,  authored  by
our same learned Brother, the use  of  word  "shown"  in  Section  304B  has
palpably not been given  due  weightage  inasmuch  as  it  has  been  freely
substituted by  the  word  "proved".    To  the  contrary  in  Nallam  Veera
Stayanandam v. Public Prosecutor 2004 (10) SCC 769, it has been opined  that
"it is for the defence in this case to satisfy the Court  that  irrespective
of the prosecution case in regard to dowry demand and harassment, the  death
of the deceased has not occurred because of that and that the same  resulted
from a cause totally alien to such dowry demand or harassment."

17     Keeping in perspective that Parliament  has  employed  the  amorphous
pronoun/noun "it" (which we think should be construed as an allusion to  the
prosecution), followed by the word  "shown"  in  Section  304B,  the  proper
manner of interpreting the Section is that "shown" has  to  be  read  up  to
mean "prove" and the word "deemed" has to be read down to  mean  "presumed".
Neither  life  nor  liberty  can  be  emasculated  without   providing   the
individual  an  opportunity   to   disclose   extenuating   or   exonerating
circumstances.   It was for this reason that  this  Court  struck  down  the
mandatory death sentence in Section 303  IPC  in  its  stellar  decision  in
Mithu vs. State of Punjab, AIR 1983  SC  473.    Therefore,  the  burden  of
proof weighs on the husband to prove his innocence by dislodging his  deemed
culpability, and that this has  to  be  preceded  only  by  the  prosecution
proving the presence of three factors, viz. (i) the  death  of  a  woman  in
abnormal circumstances (ii) within seven years of her  marriage,  and  (iii)
and that the death had a live link with cruelty connected  with  any  demand
of dowry.    The other facet is that the husband has indeed a  heavy  burden
cast on his shoulders in that  his  deemed  culpability  would  have  to  be
displaced and overturned beyond reasonable doubt. This  emerges  clearly  as
the manner in which Parliament sought to combat  the  scourge  and  evil  of
rampant bride burning or dowry  deaths,  to  which  manner  we  unreservedly
subscribe.    In  order  to  avoid  prolixity  we  shall  record  that   our
understanding of the  law  finds  support  in  an  extremely  extensive  and
erudite judgment of this Court in P.N. Krishna Lal v. Government of  Kerala,
1995 Supp (2) SCC 187, in which  decisions  spanning  the  globe  have  been
mentioned and discussed.  It is also important  to  highlight  that  Section
304B does not require the accused  to  give  evidence  against  himself  but
casts the onerous burden to dislodge  his  deemed  guilt  beyond  reasonable
doubt.  In our opinion, it would not be appropriate to lessen the  husband's
onus to that of preponderance of probability as that  would  annihilate  the
deemed guilt expressed in Section 304B, and  such  a  curial  interpretation
would defeat and neutralise the intentions and purposes of Parliament.     A
scenario  which  readily  comes  to  mind  is  where  dowry   demands   have
indubitably been made by the accused husband, where in an agitated state  of
mind, the wife had decided to leave her matrimonial home,  and  where  while
travelling by bus to her parents' home she sustained fatal burn injuries  in
an accident/collision which that bus encountered.   Surely, if  the  husband
proved that he played no role whatsoever in the accident, he  could  not  be
deemed to have caused his  wife's  death.     It  needs  to  be  immediately
clarified that if the wife had taken her life by jumping in front of  a  bus
or before a train, the husband would have no  defence.     Examples  can  be
legion, and hence we shall abjure from going any further.   All  that  needs
to be said is that  if  the  husband  proves  facts  which  portray,  beyond
reasonable doubt, that he could not have caused the death  of  his  wife  by
burns or bodily injury or not  involved  in  any  manner  in  her  death  in
abnormal circumstances,  he  would  not  be  culpable  under  Section  304B.

18    Now, to the case in hand.  It has been contended  before  us,  as  was
also unsuccessfully argued before both the Courts below  that  there  was  a
'delay' in lodging the FIR.   There  is  no  perversity  in  the  concurrent
views that its lodgement after ten hours on the day next after the  tragedy,
i.e. 8/02/98 did not constitute inordinate delay such as  would  justifiably
categorising the FIR as an after-thought or as contrived.   The  Complainant
along with family and friends had to travel to  another  village;  he  would
have had to first come  to  terms  with  the  tragedy,  make  enquiries  and
consider the circumstances, before recording the FIR.  Equally  preposterous
is the argument that once the High Court had seen fit to  acquit  the  other
accused, namely, Davinder Singh (brother-in-law) and Jarnail Singh  (father-
in-law) the husband/Appellant should have  been  similarly  acquitted.    It
cannot be ignored that the accused was  not  living  with  his  parents  and
brother, and it is justified nay necessary  to  require  stronger  proof  to
implicate the family members of the husband.   It has been  essayed  by  the
learned counsel for the Appellant  to  impress  upon  us  that  the  cruelty
postulated in this provision has not  been  shown  to  have  occurred  "soon
before her death".  This argument, assumes on  a  demurrer,  that  statutory
cruelty had, in fact, been committed.  The deceased and the  Appellant  were
married in February, 1997 and the former committed suicide within one  year;
to even conjecture that it was not soon before death, has only to be  stated
to be stoutly shot down.

19    We must consider, lastly, whether  the  prosecution  has  successfully
'shown' that the deceased was subjected to cruelty which was connected  with
dowry demands.   We may usefully reiterate here that keeping in  perspective
the use of "shown" instead of "proved" the onus  would  stand  satisfied  on
the anvil of preponderance of evidence.

20     The  two  prosecution  witnesses,  on  whom  the  entire  episode  is
predicated, are PW4 and PW7.  The Complainant/PW4-Angrez  Singh  appears  to
be the eldest in the family as he has stated  that  his  brother,  i.e.  the
father of the deceased, had already died.  He has  stated   that  sufficient
kanyadan was given at the time of marriage; that two  months  prior  to  her
death the deceased had, on one of her visits to their home, conveyed to  her
brothers that her husband and his  family  were  harassing  her  for  dowry,
especially a motorcycle and fridge.   On learning of these demands  PW4  had
told her that these goods would be provided at the time of the  marriage  of
her brothers.   PW4 was told by Rajwant Singh that his niece  had  committed
suicide.  The Complainant has admitted that there were no demands for  dowry
either at the betrothal or at the time of marriage.     Her  maternal  uncle
Gurdip Singh avowedly fixed/mediated/arranged the unfortunate marriage,  yet
he was not apprised of the dowry demands by  Angrez  Singh.    He  has  also
denied that any  panchayat  was  convened  regarding  these  dowry  demands,
whereas  Sukhwant  Singh  PW7,  the  real  brother  of  the  deceased,   has
categorically stated in cross-examination that a panchayat  comprising  both
Angrez Singh and Gurdip Singh and several others had held deliberations.

21    In cross-examination, the complainant has admitted that  the  deceased
never spoke to him about her domestic problems or regarding demand of  dowry
by the accused except once, on the last  occasion  of  her  visit.   He  has
further admitted that even her brothers had not conveyed any information  to
him in this regard.   On the fateful day PW4  stated  that  he  reached  the
village where the deceased resided and where she had  committed  suicide  at
about 7.00 pm on 7.2.1998 and that he immediately left for that place  along
with several others after  ascertaining  facts;  the  following  morning  he
lodged the report at P.S. Assandh.   What is important from  his  deposition
is that he has deposed of only one alleged demand of dowry.

22    Sukhwant Singh, the real brother of the deceased has been examined  as
PW7 and he has deposed that the deceased  visited  their  house  two  months
prior to her death and narrated that the  Appellant,  his  younger  brother,
their father and mother used to harass and torture her  and  demand    dowry
in the form of motorcycle and fridge and that he had  told  these  facts  to
their uncle, Angrez Singh, as well as to his elder  brother  Jaswant  Singh.
He has further stated that he  made  the  deceased  understand  about  their
financial difficulties and promised to give motorcycle and fridge after  his
marriage and that of her brother.    He was informed of  the  death  of  the
deceased on 7.2.98 by Angrez  Singh/PW4.   In  cross-examination  even  this
witness has admitted that no dowry demands were made  prior  to  or  at  the
time of marriage.     He has also deposed about a panchayat  which  included
Gurdeep Singh (maternal uncle) as well  as  Angrez  Singh/PW4  who,  as  has
already been noted, has categorically stated that  no  such  Panchayat  took
place.  The version of the Appellant was put  to  him  and  denied,  namely,
that the deceased was hot tempered, wanted him to  shave  his  hair,  forced
him to live separately from his parents, wanted him to shift to  Karnal  and
start a business, all of which were against  his  wishes.   The  fundamental
and vital question that the Court has to ask itself and find a solid  answer
to, is whether this evidence even preponderantly proves that  the  Appellant
had treated the deceased with cruelty connected with dowry demands.   It  is
only if the answer is in the affirmative will the Court have  to  weigh  the
evidence produced by the Appellant to  discharge  beyond  reasonable  doubt,
the assumption of his deemed guilt.   We have not lost  sight  of  the  fact
that the deceased was pregnant at the time of  her  suicide  and  that  only
extraordinary and overwhelming factors would have driven  her  to  take  her
life along with that of her unborn child.   The fact remains  that  she  did
so.  What motivated or compelled her to take this extreme and horrific  step
will remain a mystery, as we are not  satisfied  that  the  prosecution  has
proved or even shown that she was treated with such cruelty, connected  with
dowry demands, as led her to commit suicide.   In the  normal  course  dowry
demands are articulated when the marriage is agreed upon  and  is  certainly
reiterated at the time when it is performed and such demands  continue  into
a couple of years of matrimony.  In normal  course,  if  a  woman  is  being
tortured and harassed, she would  not  remain  reticent  of  this  state  of
affairs  and  would  certainly  repeatedly  inform  her  family.    This  is
specially so before she takes the extreme  step  of  taking  her  own  life.
Added to  this  are  the  inconsistencies  and  contradictions  between  the
statements of PW4 and PW7 with regard to the panchayat and the  presence  of
and knowledge of Gurdip Singh.   It is for these reasons that we are of  the
opinion that the prosecution has not shown/presented and or proved  even  by
preponderance of probabilities that  the  deceased  had  been  treated  with
cruelty emanating from or founded on dowry demands.   It is in the realm  of
a possibility that the  ingestion  of  aluminium  phosphate  may  have  been
accidental.

23    We may only observe that in his examination under Section 313  Cr.P.C.
the accused has proffered details of his  defence.    This  is  not  a  case
where he has merely denied all the questions put by the Court to  him.    As
already stated above, because of the  insufficiency  or  the  unsatisfactory
nature of the facts or circumstances shown by the  prosecution,  the  burden
of proving his innocence has not shifted to the Appellant,  in  the  present
case.

24    In this analysis, the Appeal is  allowed  and  the  impugned  Judgment
convicting and punishing the Appellant is set aside.



............................................J.
                                        [VIKRAMAJIT SEN]



............................................J.
                                        [KURIAN JOSEPH]
New Delhi;
January 09, 2015.
























-----------------------
31


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.