Whether without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained.
On this aspect this Court in the case of Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 held as under: “12. …….It is to be noted that Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The 12 Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.” (emphasis supplied) 20. Therefore, the argument raised by the counsel on behalf of the appellant cannot be accepted as the offences under Section 498-A and Section 304-B, IPC are distinct in nature. Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.
The Trial Court, after a thorough examination of the evidences- both oral and documentary, concluded that the accused-appellant, who was working as a technician in a hospital, has forged the hospital records to prove the existence of cordial relationship between the families of the deceased and the accused. The relevant observations of the Trial Court on this point are as follows: “Gurmeet Singh accused was working as O.T. Technician. Gurmit Singh brought Baksho Devi to the hospital and he examined her and given Chemotherapy. He has further stated that photo copy of the entries in the file are Ex.Dl and she was treated upto 17.8.2008. This witness in his cross-examination has admitted that it is correct that in the entries in the file it is not recorded as to who brought the patient. He has also admitted that remarks column of Ex.Dl is blank and it does not bear his signatures any where. He also stated that what treatment was to be given is mentioned 10 in the treatment file. He also stated that patient was also treated by other doctors. So this witness has stated that the patient was treated upto 17.8.08. Ex.Dl is dated 18.8.08. Admittedly Rama Devi has expired on 8.8.08. The case against accused Gurmit Singh was registered on 9.8.08. As per the statement of PW-11 SI Dharam Pal, accused Gurmit Singh was arrested in this case on 10.8.08. The personal search memo of the accused is Ex.P26, grounds of arrest memo is Ex.P-27 and ground of information memo is Ex.P-28 which was prepared by him and signed by accused and ASI Sukhdev Singh. So, if the accused was in custody since 10.8.08 till date, then how he could take her mother-in-law for treatment before Dr. K.K. Nayak DW-2 or got her treated from there. So, the defence evidence appears to have been crated and the same has been manipulated by the accused that he had been getting treatment of his mother-in-law to show that his relations were cordial with the family of the victim or with the victim falls to the ground.”
Therefore, the prosecution having satisfied the necessary ingredients under Section 304B of IPC, the presumption under Section 113-B, Evidence Act takes full effect in this particular case, which has not been rebutted by the accused-appellant herein. The appellant has failed to make out a case for us to interfere in the concurrent opinions of the Courts below, convicting the accused-appellant under Section 304-B, IPC.
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1731 OF 2010
GURMEET SINGH …APPELLANT
Versus
STATE OF PUNJAB …RESPONDENT
JUDGMENT
N. V. RAMANA, CJI.
1. The present appeal arises out of the impugned judgment dated
15.03.2010 passed by the High Court of Punjab and Haryana
at Chandigarh in Criminal Appeal No. 2298-SB of 2009,
wherein the High Court dismissed the appeal preferred by the
appellant herein and upheld the order of the Trial Court
convicting him under Section 304-B, IPC and sentencing him
to undergo rigorous imprisonment for seven years and a fine
of Rs.5000/-.
2. The facts as per the prosecution are as follows: the deceased,
daughter of the complainant was engaged to the appellant in
REPORTABLE
RE
2
2004. Subsequent to the engagement, the complainant left for
Abu Dhabi in April, 2004 and in his absence the marriage
between the appellant and the deceased was solemnized on
23.11.2004. In 2006, a child was born out of the wedlock.
When the complainant returned from abroad in 2007, the
deceased informed him that the mother-in-law, father-in-law
and the appellant-husband used to physically assault her
pursuant to the demand of dowry. Allegedly, the complainant
gave a gold chain to the accused persons. The complainant
thereafter went abroad and returned to India on 21.07.2008.
The deceased further disclosed that her in-laws were
demanding money for the purchase of a car. However, this
time, the complainant failed to fulfill the demand.
3. On 08.08.2008, the father-in-law of the deceased informed the
complainant that the deceased has consumed poison and lost
her consciousness and was being taken to the hospital. Upon
reaching the hospital, the complainant found his daughter to
be unconscious. Later that day she died.
4. The Trial Court, vide order dated 03.09.2009 convicted the
appellant-husband, father-in-law and mother-in-law for the
offence under Section 304-B and sentenced them to undergo
3
rigorous imprisonment for seven years each and a fine of
Rs.5000/- each. In default of payment of fine, the accused
persons were directed to undergo rigorous imprisonment for
one year each.
5. Aggrieved, the accused persons approached the High Court in
appeal. Vide impugned judgment dated 15.03.2010, the High
Court acquitted the father-in-law and the mother-in-law, but
upheld the order of conviction and sentence passed against
the accused-appellant. Challenging the aforesaid judgment of
the High Court, the accused-appellant has approached this
Court.
6. The counsel appearing on behalf of the accused-appellant
argued that the Courts below have, as a matter of routine,
applied the presumption u/s 113B of Evidence Act in the
instant case wherein even the basic and essential ingredient
of Section 304-B, IPC are not satisfied. It was submitted that
just because the death of the deceased occurred within seven
years of marriage, by no stretch of imagination can it be said
that the deceased soon before her death was subjected to
cruelty in connection with the demand of dowry. The fact that
the deceased was happy with the appellant is clearly evident
4
as she lived with him and bore his child, and never mentioned
any harassment or cruelty being meted out by the appellant.
Furthermore, the gifts received by the appellant-husband were
voluntarily given by the complainant and his family. Lastly,
without any charges under Section 498A, IPC a conviction
under Section 304-B, IPC cannot be sustained.
7. On the contrary, the counsel on behalf of the State argued that
it was undeniable that the death in the present case has
occurred within four years of marriage, under suspicious
circumstances i.e., due to poisoning. Moreover, fifteen days
before the incident, the deceased had specifically told her
father about the latest demand of money for the purchase of a
car. Lastly, it was established before the Courts below that the
accused had forged the medical records of his mother-in-law
to show cordial relationship between the two families.
Therefore, owing to all the aforesaid circumstances, the
presumption under Section 113B, Evidence Act operates
against the accused-husband, which has not been rebutted.
8. Heard the counsel appearing for both sides. Section 304-B,
IPC, which defines and provides the punishment for dowry
death, reads as under:
5
“304-B. 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 subsection, ‘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.”
9. Section 304-B(1), IPC defines ‘dowry death’ of a woman. It
provides that ‘dowry death’ is where death of a woman is
caused by burning or bodily injuries or occurs otherwise than
under normal circumstances, within seven years of 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, in connection with demand for dowry. Further,
Section 304-B(2), IPC provides punishment for the aforesaid
offence. This Court, in the recent judgment of Satbir Singh v.
6
State of Haryana, Criminal Appeal Nos. 1735-1736 of 2010
summarised the law under Section 304-B, IPC and Section
113B, Evidence Act as under:
“i. Section 304-B, IPC must be interpreted
keeping in mind the legislative intent to curb
the social evil of bride burning and dowry
demand.
ii. The prosecution must at first establish
the existence of the necessary ingredients
for constituting an offence under Section
304-B, IPC. Once these ingredients are
satisfied, the rebuttable presumption of
causality, provided under Section 113-B,
Evidence Act operates against the accused.
iii. The phrase “soon before” as appearing in
Section 304-B, IPC cannot be construed to
mean ‘immediately before’. The prosecution
must establish existence of “proximate and
live link” between the dowry death and
cruelty or harassment for dowry demand by
the husband or his relatives.
iv. Section 304-B, IPC does not take a
pigeonhole approach in categorizing death
as homicidal or suicidal or accidental. The
reason for such non categorization is due to
the fact that death occurring “otherwise than
under normal circumstances” can, in cases,
be homicidal or suicidal or accidental.”
10. In the present case, admittedly, the marriage between the
deceased and the accused-appellant took place on 23.11.2004,
and the death of the deceased occurred in 2008 after she
consumed poison in her matrimonial home. Therefore, the first
7
two ingredients as to death under otherwise than ‘normal
circumstances’ within seven years of marriage stand satisfied.
11. The next important ingredient which needs to established is
the existence of dowry demand “soon before her death”. This
Court in catena of judgments have held that, “soon before”
cannot be interpreted to mean “immediately before”, rather the
prosecution has to show that there existed a “proximate and
live link” between the cruelty and the consequential death of
the victim. [See Satbir Singh v. State of Haryana (supra);
Kans Raj v. State of Punjab, (2000) 5 SCC 207; Rajinder
Singh v. State of Punjab, (2015) 6 SCC 477]
12. Here, the evidence of the father of the deceased (P.W.4)-
Sarwan Singh, assumes great importance. He has clearly
stated that after the marriage the deceased had telephonically
informed him about the consistent demand of a car or of
equivalent cash by the accused. In 2007, when this witness
visited India, the deceased had also expressed her
unhappiness due to the constant harassment. Moreover, when
he returned to the country in July, 2008, the deceased had
reiterated the factum of demands before him. The witness also
stated as to how the families attempted to mediate the dispute
8
themselves and on multiple occasions the father of deceased
gave certain gifts to the accused and his family to ameliorate
the situation. Another important circumstance which comes to
our attention is that the mother of the deceased had informed
the father 15-20 days prior to the incident about the
continuing harassment of the deceased on account of dowry.
Finally, on 08.08.2008, the father-in-law of the deceased
informed this witness about the consumption of poison by the
deceased.
13. It is necessary to highlight that both the Trial Court and the
High Court found the above evidence of P.W.4- the father of
the deceased to be reliable and consistent despite a thorough
cross-examination. No evidence was produced by the appellant
to disregard the aforesaid testimony. On perusing the
testimony of PW4, we are also of the considered opinion that
the same is consistent and inspires confidence. Taking into
account the evidence on record, particularly the testimony of
the father of the deceased, we are of the opinion that the
prosecution has proved the necessary ingredients under
Section 304-B, IPC against the accused-appellant.
9
14. Now, that necessary ingredients under Section 304-B, IPC
stands satisfied, a presumption of causation arises against the
accused under Section 113-B, Evidence Act and the accused
has to rebut this statutory presumption.
15. The defence of the accused is that his family and family of the
deceased shared a cordial relationship, and in fact, the
appellant had helped the mother of deceased in getting
treatment of cancer. The Trial Court, after a thorough
examination of the evidences- both oral and documentary,
concluded that the accused-appellant, who was working as a
technician in a hospital, has forged the hospital records to
prove the existence of cordial relationship between the families
of the deceased and the accused. The relevant observations of
the Trial Court on this point are as follows:
“Gurmeet Singh accused was working as O.T.
Technician. Gurmit Singh brought Baksho
Devi to the hospital and he examined her and
given Chemotherapy. He has further stated
that photo copy of the entries in the file are
Ex.Dl and she was treated upto 17.8.2008.
This witness in his cross-examination has
admitted that it is correct that in the entries in
the file it is not recorded as to who brought the
patient. He has also admitted that remarks
column of Ex.Dl is blank and it does not bear
his signatures any where. He also stated that
what treatment was to be given is mentioned
10
in the treatment file. He also stated that
patient was also treated by other doctors. So
this witness has stated that the patient was
treated upto 17.8.08. Ex.Dl is dated 18.8.08.
Admittedly Rama Devi has expired on 8.8.08.
The case against accused Gurmit Singh was
registered on 9.8.08. As per the statement of
PW-11 SI Dharam Pal, accused Gurmit Singh
was arrested in this case on 10.8.08. The
personal search memo of the accused is Ex.P26, grounds of arrest memo is Ex.P-27 and
ground of information memo is Ex.P-28 which
was prepared by him and signed by accused
and ASI Sukhdev Singh. So, if the accused was
in custody since 10.8.08 till date, then how he
could take her mother-in-law for treatment
before Dr. K.K. Nayak DW-2 or got her treated
from there. So, the defence evidence appears
to have been crated and the same has been
manipulated by the accused that he had been
getting treatment of his mother-in-law to show
that his relations were cordial with the family
of the victim or with the victim falls to the
ground.”
(emphasis supplied)
16. The aforesaid conclusion reached by the Trial Court is based
on a detailed analysis of the evidence on record, and does not
warrant any interference. The appellant has not brought to our
attention any material to suggest that the above finding of the
Trial Court was perverse or without any basis. Hence, this
defence of the appellant merits rejection as being untenable.
17. The next submission of the appellant was that the deceased
was suffering from depression owing to the health of her
11
mother. However, no evidence has been produced on record by
the appellant to indicate that the deceased was depressed due
to the alleged poor health condition of her mother. In fact, no
evidence was produced to even show that her mother’s health
was deteriorating.
18. Therefore, the prosecution having satisfied the necessary
ingredients under Section 304B of IPC, the presumption under
Section 113-B, Evidence Act takes full effect in this particular
case, which has not been rebutted by the accused-appellant
herein. The appellant has failed to make out a case for us to
interfere in the concurrent opinions of the Courts below,
convicting the accused-appellant under Section 304-B, IPC.
19. Lastly, the counsel on behalf of the appellant argued that
without any charges under Section 498A, IPC a conviction
under Section 304-B, IPC cannot be sustained. On this aspect
this Court in the case of Kamesh Panjiyar v. State of Bihar,
(2005) 2 SCC 388 held as under:
“12. …….It is to be noted that Sections 304-
B and 498-A IPC cannot be held to be
mutually inclusive. These provisions deal
with two distinct offences. It is true that
cruelty is a common essential to both the
sections and that has to be proved. The
12
Explanation to Section 498-A gives the
meaning of “cruelty”. In Section 304-B there is
no such explanation about the meaning of
“cruelty”. But having regard to the common
background to these offences it has to be taken
that the meaning of “cruelty” or “harassment”
is the same as prescribed in the Explanation
to Section 498-A under which “cruelty” by
itself amounts to an offence. Under Section
304-B it is “dowry death” that is punishable
and such death should have occurred within
seven years of marriage. No such period is
mentioned in Section 498-A. If the case is
established, there can be a conviction under
both the sections.”
(emphasis supplied)
20. Therefore, the argument raised by the counsel on behalf of the
appellant cannot be accepted as the offences under Section
498-A and Section 304-B, IPC are distinct in nature. Although
cruelty is a common thread existing in both the offences,
however the ingredients of each offence are distinct and must
be proved separately by the prosecution. If a case is made out,
there can be a conviction under both the sections.
21. Before parting with this matter, we are of the opinion that it
would be beneficial to reiterate the guidelines issued by this
Court in Satbir Singh v. State of Haryana (supra) relating
to trial under Section 304-B, IPC:
13
“v. Due to the precarious nature of Section 304-
B, IPC read with 113-B, Evidence Act, Judges,
prosecution and defence should be careful during
conduction of trial.
vi. It is a matter of grave concern that, often, Trial
Courts record the statement under Section 313,
CrPC in a very casual and cursory manner,
without specifically questioning the accused as to
his defense. It ought to be noted that the
examination of an accused under Section 313,
CrPC cannot be treated as a mere procedural
formality, as it based on the fundamental principle
of fairness. This aforesaid provision incorporates
the valuable principle of natural justice “audi
alteram partem” as it enables the accused to offer
an explanation for the incriminatory material
appearing against him. Therefore, it imposes an
obligation on the court to question the accused
fairly, with care and caution.
vii. The Court must put incriminating
circumstances before the accused and seek his
response. A duty is also cast on the counsel of the
accused to prepare his defense since the inception
of the Trial with due caution, keeping in
consideration the peculiarities of Section 304-B,
IPC read with Section 113-B, Evidence Act.
viii. Section 232, CrPC provides that, “If, after
taking the evidence for the prosecution, examining
the accused and hearing the prosecution and the
defence on the point, the Judge considers that there
is no evidence that the accused committed the
offence, the Judge shall record an order of
acquittal”. Such discretion must be utilized by the
Trial Courts as an obligation of best efforts.
ix. Once the Trial Court decides that the accused
is not eligible to be acquitted as per the provisions
of Section 232, CrPC, it must move on and fix
hearings specifically for ‘defence evidence’, calling
upon the accused to present his defense as per the
14
procedure provided under Section 233, CrPC,
which is also an invaluable right provided to the
accused.
x. In the same breath, Trial Courts need to
balance other important considerations such as
the right to a speedy trial. In this regard, we may
caution that the above provisions should not be
allowed to be misused as delay tactics.
xi. Apart from the above, the presiding Judge
should follow the guidelines laid down by this
Court while sentencing and imposing appropriate
punishment.
xii. Undoubtedly, as discussed above, the
menace of dowry death is increasing day by day.
However, it is also observed that sometimes family
members of the husband are roped in, even
though they have no active role in commission of
the offence and are residing at distant places. In
these cases, the Court need to be cautious in its
approach.”
22. In light of the above findings, after perusing the relevant
material and the evidence available, we find that the High
Court and Trial Court have not committed any error in
convicting the appellant under Section 304-B, IPC as the
appellant failed to discharge the burden under Section 113-
B, Evidence Act. The appellant has not brought any material
on record which merits the interference of this Court in the
impugned judgment.
15
23. Appeal dismissed. Pending applications, if any, are
disposed of accordingly.
………………………..CJI.
(N.V. RAMANA)
………………………… J.
(SURYA KANT)
…………………………. J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 28.05.2021
