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
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.
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