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

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40720

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1308 OF 2013
Gurdip Singh … Appellant (s)

Versus

State of Punjab … Respondent (s)
J U D G M E N T
KURIAN, J.:

 

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

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

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

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

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

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

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

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

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

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

6. In this context, the background for the amendments would be a
relevant reference. In the 91st Report on Dowry Deaths and Law Reform
submitted by Justice K. K. Mathew, Chairman, Law Commission of India, on
10.08.1983, it is stated at Paragraphs 1.3 to 1.5 as follows:
“1.3 If, in a particular incident of dowry death, the facts are such
as to satisfy the legal ingredients of an offence already known to the
law, and if those facts can be proved without much difficulty, the
existing criminal law can be resorted to for bringing the offender to
book. In practice, however, two main impediments arise-
i) either the facts do not fully fit into the pigeon-hole
of any known offence: or
ii) the peculiarities of the situation are such that proof
of directly incriminating facts is thereby rendered
difficult.
The first impediment mentioned above is aptly illustrated by the
situation where a woman takes her life with her own hands, though she
is driven to it by ill-treatment. This situation may not fit into any
existing pigeon-hole in the list of offences recognized by the general
criminal law of the country, except where there is definite proof of
instigation, encouragement or other conduct that amounts to “abetment”
of suicide. Though, according to newspaper reports, there have been
judgments of lower courts which seem to construe “abetment” in this
context widely, the position is not beyond doubt.

The second situation mentioned above finds illustration in those
incidents in which even though the circumstances raise a strong
suspicion that the death was not accidental, yet, proof beyond
reasonable doubt may not be forthcoming that the case was really one
of homicide. Thus, there is need to address oneself to the substantive
criminal law as well as to the law of evidence.
1.4 Speaking of the law of evidence, it may be mentioned that one of
the devices by which the law usually tries to bridge the gulf between
one fact and another, where the gulf is so wide that it cannot be
crossed with the help of the normal rules of evidence, is the device
of inserting presumptions. In this sense, it is possible to consider
the question whether, on the topic under discussion, any presumption
rendering the proof of facts in issue less difficult, ought to be
inserted into the law.
1.5 Coming to substantive criminal law, if a deficiency is found to
exist in such law, it can be filled up only by creating a new offence.
Before doing so, of course, the wise law maker is expected to take
into account a number of aspects, including the nuances of ethics, the
ever-fluctuating winds of public opinion, the Demands of law
enforcement and practical realities.”
(Emphasis supplied)

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

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

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

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

12. The appeal is allowed as above.

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

 

 

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

 
———————–
REPORTABLE
———————–
9

 

 

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