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It is the case of the defense that the deceased would have tried to commit suicide by consuming poison and when she was apprehensive whether she would die or not, she set fire to herself. Assuming, without conceding, that Smt. Prema had committed suicide, then under Section 113A of the Indian evidence Act, onus is shifted on the accused to dislodge the presumption of having committed abetment of suicide by a married woman. Unlike as in Section 304- B where the court “shall presume” dowry death, when the prosecution has established the ingredients, under Section 113A of the Evidence Act, discretion has been conferred upon the Court wherein it has been provided that the Court may presume abetment of suicide. Therefore the onus lies on the accused to rebut the presumption, and in case of Section 113-B of the Evidence Act relatable to Section 304B of IPC, the onus to prove shifts exclusively and heavily on the accused as held in Bansilal v. State of Haryana (2011) 11 SCC 359.The circumstantial evidence leads to the guilt of the accused persons, as the prosecution has proved that the accused had the opportunity to administer the poison and the doctors in the medical examination have also reported that the deceased was a healthy woman who, along with her family, was trying to reconcile matters with the accused persons. The fact that the death occurred in the house of the accused persons, leads to their guilt. They have not discharged the onus of disproving the presumptions under Sections 113A and 113B. Thus, the question of suicide is ruled out. The Court in this case is obliged to take the presumption raised under Section 113B of the Evidence Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2146 OF 2009

BHIM SINGH & ANR. … APPELLANTS

:Versus:

STATE OF UTTARAKHAND …RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.:

This appeal, by special leave, has been filed against the judgment and
order dated 23.03.2009 passed by the High Court of Uttarakhand at Nainital
in Criminal Appeal No.1706 of 2001 whereby the High Court while acquitting
the two co-accused (appellant Nos.2 & 3 herein), upheld the conviction and
sentence of appellant Nos.1 & 2 herein, as awarded by learned Special Judge
(CBI)/Additional Sessions Judge, Nainital, and dismissed their appeal. The
learned Special Judge (CBI)/Additional Sessions Judge, Nainital, by its
judgment and order dated 25.04.2000 passed in Sessions Trial No.36 of 1998
convicted appellant Nos.1 & 2 herein under Section 304-B of IPC and
sentenced them to imprisonment for life, and further convicted all the
appellants under Section 498-A IPC and sentenced them to rigorous
imprisonment for one year and a fine of Rs.500/- to each of them. All the
appellants were also convicted under Sections 3 & 4 of the Dowry
Prohibition Act, 1961 and sentenced each of them to three months’ simple
imprisonment and fine.

The facts leading to this appeal are that one Bhim Singh S/o of Govind
Singh, resident of Village Naliana in District Nainital got married to
Prema Devi (deceased) on 4.5.1997. Appellants Nos.2 & 3, namely Aan Singh
and Nain Singh are brothers of Bhim Singh and Appellant No.4, namely Janki
Devi is the wife of Aan Singh (appellant No.2 herein). Prema Devi died
unnatural death in her in-laws’ house on 26.9.1997. Soon after the death of
Prema Devi, Pushpa Joshi, Village Pradhan of Jeolikot made a complaint
telephonically to Sub-Divisional Magistrate about the unnatural death of
Prema Devi. Upon receiving this information, the Magistrate along with Sub-
Inspector Shiv Singh Gusain (PW-7) reached the village and took the dead
body in their possession and an inquest report was prepared on the same
day. Post-mortem examination of the deceased was conducted on the same day
at about 4.55 p.m. by Dr. D.K. Joshi (PW-5) and one Dr. H.C. Bhatt who
prepared the Autopsy Report. Post-mortem report reveals that there were 90%
burn injuries on the body of the deceased. Since the cause of death was not
ascertained by the medical officers, therefore, vicera was preserved for
chemical examination.

First Information Report was lodged on 27.9.1997 at around 1830 Hrs., at
Police Station Jyolikot, Police Station Tallital, District Nainital by one
Sri. Birbal Singh Sambhal, inter alia, stating that the marriage of his
sister Smt. Prema Devi was solemnized with Bhim Singh son of Govind Singh,
in the month of May, 1997 in Village Jyolikot, Nainital. The elder brother
of Bhim Singh, namely Aan Singh played the role of mediator in finalizing
the marriage. Several items were given in the aforesaid marriage. FIR
states that Prema Devi, complainant’s sister, told him that when she went
to the house of her in-laws after marriage, her husband Bhim Singh, Aan
Singh, Nain Singh, all sons of Govind Singh and Smt. Janki Devi wife of
Aan Singh, used to taunt and torture her by saying that she had brought
nothing in dowry. When she narrated these events to her parents they
persuaded Prema and told her to adjust with her family and live with them
cordially. Father of the complainant however convinced Prema that he would
himself talk to her in-laws and settle things. They went to the house of
the in-laws of Prema and tried their best to persuade them, but instead of
settling matters, they exhorted to taunting. Consequently, Prema was
advised to adjust herself to the situation. Thereafter when she came to her
parents’ house on the occasion of Rakhi, she told them that Bhim Singh,
Aan Singh, Nain Singh and Janki Devi are repeatedly taunting and torturing
her. She further told that the elder brother, Aan Singh threatened to
insult her before the entire village and pressurised her for getting
clothes and other items from her parents’ house. On 27.9.1997 the
complainant received information that his sister had died due to burning.
Upon receiving this information, they immediately went to the house of
Prema’s in-laws and they found her dead. She was completely burnt. They
were told that she had set herself on fire.

Investigation was done by Bimla Gunjyal, Deputy Superintendent of Police
(PW-6) and after the investigation was complete, charge-sheet against all
the four accused persons was filed before the Chief Judicial Magistrate
and the case was committed to the Sessions Court for trial.

The Trial Court on finding that the prosecution has succeeded in proving
the guilt of the appellants, convicted them for offences under Section 498-
A of IPC and sentenced them to undergo rigorous imprisonment for three
years each with a fine of Rs.500/-, and in the event of default in payment
of fine, further simple imprisonment for fifteen days each. Accused Bhim
Singh and Aan Singh (appellants Nos.1 & 2 herein) were also held guilty of
offence 304-B of IPC and both of them were sentenced to undergo rigorous
imprisonment for life. Appellants were also convicted for the offences
under Sections 3 & 4 of the Dowry Prohibition Act, 1961 and sentenced to
undergo three months’ rigorous imprisonment along with fine of Rs.500/-.
In the event of default in payment of fine, they were to undergo further
simple imprisonment for fifteen days. However, all these sentences were
directed to run concurrently.

An appeal was preferred by the appellants under Section 374 of Code of
Criminal Procedure, 1973 (“Cr.P.C.” for short) against the judgment and
order dated 25.04.2000 passed by the Special Judge (C.B.I)/ Additional
Sessions Judge, Nainital in Sessions Trial No.36 of 1998. After hearing
the counsel for the parties and perusing the Trial Court’s record, the High
Court relied, firstly on the finding by the team of two doctors who after
post-mortem examination prepared the autopsy report. The said report
disclosed that there were 90% burns and all these burns were skin deep. As
to the cause of death, the two officers Dr. D.K. Joshi and Dr. H.C. Bhatt
opined that the cause of death could not be ascertained, hence the viscera
was preserved. The viscera report on the Trial Court record disclosed that
pieces of stomach, intestine, liver, kidney and spleen contained Organo
Chloro Insecticide and Ethile Alcohol poisons. The Autopsy report and
chemical examiner’s report with statement of Dr. D.K. Joshi clearly
established the fact that the deceased died an unnatural death. Secondly
the High Court also relied on the statements of Virbal Singh, brother of
the deceased (PW- 1), Maan Singh, father of the deceased (PW-2) and Trilok
Singh, uncle of the deceased (PW-3) that the deceased got married to Bhim
Singh on 07.05.1997 and died an unnatural death on 26.9.1997, within 5
months of marriage. It also noted that the accused had themselves admitted
in their replies recorded under Section 313 of Cr.P.C. that the marriage
took place on the said date and Prema Devi died an unnatural death. The
only question in dispute as framed by the High Court was whether the
deceased was subjected to cruelty by the accused appellants before her
death or not. The High Court found that firstly the prosecution had
sufficiently shown as required under Section 304-B IPC that the deceased
was subject to cruelty and harassment by Bhim Singh and Aan Singh by
relying on the statements made on oath by PW-1 Virbal Singh, PW-2 Maan
Singh and PW-3 Trilok Singh where they specifically stated that in the
ceremony of Durgun, Aan Singh complained that expenditure incurred by him
in the marriage had not been recovered. Their statements were corroborated
by statement of Trilok Singh. Relying on Section 113-B of the Indian
Evidence Act 1872 read with prosecution evidence, the High Court opined
that the prosecution had successfully proved charge of offence punishable
under Section 498-A and 304-B of I.P.C. and one punishable under Sections 3
and 4 of Dowry Prohibition Act, 1961 against Bhim Singh and Aan Singh.
Secondly on the point of proving proximity between the taunts and death of
the deceased, the High Court decided that five months was proximate enough
and that presumption under Section 113B was proved beyond doubt to prove
charge. Thirdly, the fact of living separately by showing ration cards was
immaterial. On being urged by the accused that the charge framed by Trial
Court is defective and alternative charge could not have been framed in the
manner it is done by Trial Court, the Court found that there was no error
in stating the offence nor in particulars stated in the charge, nor any
failure of justice as is shown by the appellants. Relying on Sections 221
and Section 464 of Cr.P.C. the High Court opined that there was no error in
the charge nor there was any failure of justice. On going through the
entire evidence on record the High Court found that though the names of
Nain Singh and Janki Devi are mentioned with Bhim Singh and Aan Singh, no
specific role in harassing the deceased is stated against them and as such
the possibility of implication of their names, on suspicion, cannot be
ruled out. Even in respect of charge of offence punishable under Section
498-A and Sections 3 and 4 of Dowry Prohibition Act, 1961, charge against
Nain Singh and Janki Devi had not been proved beyond reasonable doubt. But
as far as conviction recorded by the Trial Court in respect of Bhim Singh
and Aan Singh is concerned, the Trial Court had committed no error in law
in convicting and sentencing them under Section 498-A I.P.C., 304-B I.P.C.,
and one under Sections 3 and 4 of Dowry prohibition Act, 1961 as the charge
against them was proved on the record beyond all reasonable doubt.

The High Court in the present matter convicted appellant Nos.1 & 2, on the
basis of circumstantial evidence in the impugned judgment. It has been
established in leading judicial precedents that where the prosecution case
is based on circumstantial evidence, only the circumstantial evidence of
the highest order can satisfy the test of proof in a criminal prosecution.
To base a conviction on circumstantial evidence put forth by the
prosecution should establish a complete and unbroken chain of events so
that only one inference could be drawn out from the same and if more than
one inference could be drawn, then the accused should be entitled to the
benefit of doubt.

The learned counsel appearing for the State of Uttarakhand contended that
PW-1 Birbal Singh had categorically stated on oath that marriage of his
sister Smt. Prema Devi was solemnized on 7.5.1997 with Bhim Singh. Elder
brother of Bhim Singh, Aan Singh, played role of mediator in finalizing the
marriage. Loan was taken for marriage. However no demand for dowry was
made. But his sister had complained twice that his family was taunting her
and demanding dowry. This statement given by PW-1 is fully corroborated by
the father of the deceased also. Prosecution counsel also examined PW-3
Trilok Singh the uncle, who said that Bhim Singh and Aan Singh talked about
dowry before him and thereupon he expressed his displeasure. The learned
counsel also argued that she died after 4 months and some days of her
marriage in an unnatural way. Further, it is argued that since there was no
mode of transport in the village at night, they could not go to the house
of Prema Devi’s in-laws on 26.9.1997 and next day when they reached by
walking on foot for about 15 km, they came to know that the dead body had
been sent to Nainital for post-mortem. Apart from the above witnesses, Smt.
Pushpa Joshi, the Gram Pradhan of the Village was produced as PW-4. She
stated that the elder-brother Aan Singh came to her and told her that Prema
Devi had set herself on fire and thereafter she along with her neighbor,
went to their house and saw Prema Devi lying there badly burnt. PW-4
informed Darogaji Gusai Singh about the incident. The learned counsel
further stated that PW-5 Dr. D.K. Joshi examined the dead body on 26.9.1997
and in external examination found 90% burn injuries on the body. The
deceased had died 6-8 hours prior to examination. Since no cause of death
was visible from external examination, therefore, viscera of the deceased
was preserved for internal examination. Post-mortem report was prepared by
Dr. H.C. Bhatt in which it was stated that he was of the opinion that the
deceased was given some toxic substance before her death due to which she
died and later on she was burnt. Because no external reason of death was
found, the viscera was sent to the State Laboratory for chemical
examination and it was found that toxic material was present in the
viscera. The counsel for the State, thus, submitted that the accused tried
to kill Smt. Prema Devi by giving poisonous substance after torturing her
for dowry and when they became apprehensive whether she had died or not,
they set her on fire to confirm her death. Thereafter, they informed the
Gram Pradhan of the Village that Prema Devi had died due to burning so that
the deceased is not able to give her dying declaration.

On the other hand, the learned counsel for the appellants submitted that PW-
1 Birbal has admitted in his statement that no demand for dowry was made by
accused before the marriage and if at all they wanted dowry, they would
demand it before marriage itself. None of them were in a position to
demand and give dowry. Birbal admitted in his statement that the marriage
was settled voluntarily by Birbal and his father on their own accord. He
stated that “marriage of his sister was settled by his father and his
marriage was solemnized with the consent of both me and my father. My
sister came back to our house after some days of marriage. But I cannot
tell after how many days she came back. Because I was in Haldwani that
time.” Further, it was urged that PW-1 and PW-2 have admitted that no
reports were lodged by them prior to death of Prema, with respect to
torture on demand of dowry. The Counsel further said that, the conduct of
the accused was of great importance, as the information of the death was
given by Aan Singh himself to the Gram Pradhan of the Village. If they had
killed her, they would not have informed her family members and instead
would have cremated her immediately after her death. Counsel urged that, it
appears that the deceased herself committed suicide, by first consuming
poisonous substance and thereafter she thought she might not die due to its
consumption, therefore she burnt herself. Learned Counsel further argued
that Bhim Singh, husband of the deceased has two brothers. Aan Singh, elder
brother of Bhim Singh is a Chowkidar in P.W.D. and living separately with
his wife. Bhim Singh was a vehicle driver and his younger brother Nain
Singh was running a shop. Thus, there was no correlation of Aan Singh, Nain
Singh and Janki Devi with Bhim Singh. All three were doing their separate
avocations. The voter lists and ration cards of all the three brothers,
which are on record, are separate. Thus, it is not proved that all three
brothers were involved in the offence. On the other hand, they have helped
the police in this case by informing them.

Thus, the present appeal requires an evaluation and analysis of the
circumstantial evidence on record and the statements made in the course of
investigation and produced against the accused appellants.

The first ground of defense taken by the appellants in this appeal is that
there is no specific incident of abuse or torture for dowry and no prior
report of dowry demand was filed by the family of the deceased. It is also
stated that there was no demand of dowry made by them before marriage as is
evident from the statements of PW-1 Birbal Singh and PW-2 Man Singh.
However, as held by this Court in the State of Himachal Pradesh v. Nikku
Ram & Ors., (1995) 6 SCC 219, the demand for dowry can be made at any time,
and not necessarily before marriage. The demand can be made on three
occasions; before marriage, at the time of marriage and after marriage. The
relevant extract of the said judgment is reproduced hereunder:

“Dowry, dowry and dowry. This is the painful repetition which confronts,
and at times haunts, many parents of a girl child in this holy land of ours
where, in good old days the belief was: “Yatra Naryastu Pujyante ramente
tetra dewatah” (where woman is worshipped, there is abode of God). We have
mentioned about dowry thrice, because this demand is made on three
occasions: (i) before marriage; (ii) at the time of marriage; and (iii)
after the marriage. Greed being limitless, the demands become insatiable in
many cases, followed by torture on the girl, leading to either suicide in
some cases or murder in some.”

The accused have taken the defense that the PWs. have also stated in their
statements that no demand for dowry was made before marriage and that the
marriage was concluded by the consent of the two parties. They also took
the defense that no prior police complaint of dowry demand was made by the
family of the deceased. However, in light of the decision of this Court in
State of Himachal Pradesh v. Nikku Ram & Ors. (supra) and the social evil
of dowry that is prevalent in the Indian society, this defense does not
hold water. The demand for dowry can be made at any time and not
necessarily before marriage. The appellants have also taken the plea that
no specific incidents of abuse or torture were there. But in the present
case, PW-3 Trilok Singh has categorically stated in his statement that the
accused Aan Singh had come in the ceremony of durgud, which is celebrated
after marriage in which he had stated in the presence of all the persons
that he had not recovered the money he had spent in the marriage and became
angry. The PWs. have also stated that, the deceased, Smt. Prema Devi had
also complained to her family members twice, regarding taunts and demand
for dowry by the four accused persons. These incidents occurred “soon
before her death” as she died within 5 months of her marriage. This raises
a presumption, under Section 113-B of the Evidence Act, as to dowry death
punishable under Section 304-B of I.P.C. A conjoint reading of Section 113B
of the Evidence Act and Section 304-B of I.P.C. shows that there must be
material to show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within the purview of “death
occurring otherwise than in normal circumstances”. The prosecution is
obliged to show that soon before the occurrence there was cruelty or
harassment for or in connection with the demand for dowry. In other words,
only when the prosecution proves that soon before her death, the lady was
subjected to cruelty or harassment for or in connection with any demand for
dowry as laid down by this Court in Kaliyaperumal and Anr. Vs. State of
Tamil Nadu (2004) 9 SCC 157. The prosecution has proved by producing cogent
evidence that soon before her death the lady was subjected to cruelty or
harassment in connection with the demand for dowry. Thus, it becomes
obligatory for the Court to raise a presumption that the death is a dowry
death.

It is the case of the defense that the deceased would have tried to commit
suicide by consuming poison and when she was apprehensive whether she would
die or not, she set fire to herself. Assuming, without conceding, that Smt.
Prema had committed suicide, then under Section 113A of the Indian evidence
Act, onus is shifted on the accused to dislodge the presumption of having
committed abetment of suicide by a married woman. Unlike as in Section 304-
B where the court “shall presume” dowry death, when the prosecution has
established the ingredients, under Section 113A of the Evidence Act,
discretion has been conferred upon the Court wherein it has been provided
that the Court may presume abetment of suicide. Therefore the onus lies on
the accused to rebut the presumption, and in case of Section 113-B of the
Evidence Act relatable to Section 304B of IPC, the onus to prove shifts
exclusively and heavily on the accused as held in Bansilal v. State of
Haryana (2011) 11 SCC 359. Thus, where the death of the wife was
concurrently found to be unnatural, viz., by strangulation, and there was
demand for dowry and also cruelty on the part of the husband the
presumption under Section 113B has been rightly drawn, as held in Hemchand
v. State of Haryana AIR 1995 SC 120, 121. Even then the presumption
against the accused persons as in Section 113A of the Evidence Act is
rightly presumed as if we assume that she committed suicide, as the
circumstantial evidence shows that she might be compelled to take the
extreme steps as the alleged suicide was committed within 7 years of
marriage, as held in Gurbachan Singh v. Satpal Singh 1990 Cri. LJ 562,571
(SC). The circumstantial evidence leads to the guilt of the accused
persons, as the prosecution has proved that the accused had the opportunity
to administer the poison and the doctors in the medical examination have
also reported that the deceased was a healthy woman who, along with her
family, was trying to reconcile matters with the accused persons. The fact
that the death occurred in the house of the accused persons, leads to their
guilt. They have not discharged the onus of disproving the presumptions
under Sections 113A and 113B. Thus, the question of suicide is ruled out.
The Court in this case is obliged to take the presumption raised under
Section 113B of the Evidence Act.

The accused persons have taken the defense that they themselves had
informed the Gram Panchayat after she had died upon which the Gram Pradhan
along with other persons went to the accused persons house, where they
found the dead body of Smt. Prema. A prudent man, trying to save a person
from dying would have taken the deceased person to the nearest hospital,
and would not have waited for her to die. The argument put forward by the
learned counsel for the accused that the deceased first consumed poison and
then on being apprehensive of her death, she set herself on fire, is
further proved wrong, as any reasonable man would try to save his wife if
such a situation arise. When facts are clear, it is immaterial whether
motive was proved. Absence of motive does not break the link in the chain
of circumstances connecting the accused with the crime as held by this
Court in Mulakh Raj v. Staish Kumar, (1992) 3 SCC 43 = AIR 1992 SC 1175.
Further, proof of motive or ill-will is unnecessary to sustain conviction
where there is clear evidence.

In the present case, the guilt or innocence of the accused has to be
adduced from the circumstantial evidence. The law regarding circumstantial
evidence is more or less well settled. This Court in a plethora of
judgments has held that when the conviction is based on circumstantial
evidence solely, then there should not be any snap in the chain of
circumstances. If there is a snap in the chain, the accused is entitled to
benefit of doubt. Gurpreet Singh v. State of Haryana (2002) 8 SCC 18 is one
of such cases. On the question of any reasonable hypothesis, this Court has
held that if some of the circumstances in the chain can be explained by any
other reasonable hypothesis, then the accused is entitled to benefit of
doubt. But in assessing the evidence, imaginary possibilities have no
place. The Court considers ordinary human probabilities.

On circumstantial evidence, this Court has laid down the following
principles in Sharad Birdhichand Sardar v. State of Maharashtra, (1984) 4
SCC 116:

The circumstances from which the conclusion of guilt is to be drawn must or
should be and not merely “may be” fully established.

The facts so established should be consistent only with the hypothesis of
the guilt of the accused, that is to say they should not be explainable on
any other hypothesis except that the accused is guilty.

The circumstances should be of conclusive nature and tendency.

They should exclude every possible hypothesis except the one to be proved
and,

There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.

Whenever there is a break in the chain of circumstances, the accused is
entitled to the benefit of doubt; State of Maharashtra v. Annappa Bandu
Kavatage (1979) 4 SCC 715.

Following the decision in Sharad Birdhichand (supra), this Court in the
case of Liyakat v. State of Uttaranchal, (2008) 16 SCC 148, and in the
case of Kusuma Ankama Rao v. State of Andhra Pradesh, (2008) 13 SCC 256,
upheld the conviction as awarded by the Trial Court and affirmed by the
High Court.

Thus, in light of the above, there is no missing link in the circumstantial
evidence put forth by the prosecution, and hence the accused are not
entitled to benefit of doubt. The guilt of the accused persons i.e. the
appellant Nos.1 & 2 herein, under Section 304-B IPC has been successfully
established. We, therefore, find no infirmity in the impugned judgment
passed by the High Court. This appeal is accordingly dismissed. There shall
be no order as to costs.

……………………………………..J
(M.Y. Eqbal)
……………………………………..J
(Pinaki Chandra Ghose)
New Delhi;
February 11, 2015.

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