Gurdeep Singh vs State Of Punjab & Ors

Crl.A. No. 1085 of 2003 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1085 OF 2003

GURDEEP SINGH ..... APPELLANT

VERSUS

STATE OF PUNJAB & ORS. ..... RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

1.1 The appellant Gurdeep Singh was the husband of

the deceased Rajender Kaur. The couple had got married

on the 14th of October, 1989 and it is the case of the

prosecution that a substantial amount of money far

beyond the means of the bride's family had been spent at

that time though the appellant, his parents, sisters and

other relatives remained dissatisfied. It appears that

the demands for dowry continued unabated and about one

year before the death the appellant demanded a sum of

`25,000/- for the purchase of a motorcycle, and this

amount was indeed handed over to the appellant but was

utilised for purchasing a plot instead. It is further

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the prosecution story that despite having received the

aforesaid amount, the deceased continued to suffer at

the hands of her husband and his relatives and that

despite the efforts of a panchayat in the matter no

suitable result followed. It is further the prosecution

story that the appellant and his relatives administered

poison to Rajinder Kaur on the 27th July, 1995 which

caused her death and that three days thereafter

information was received by Gurdev Singh P.W. 2, her

brother, and Satnam Singh, P.W. 3 her father on which

they alongwith others rushed to the matrimonial home of

Rajinder Kaur but found that the dead body had been

hurriedly cremated. Gurdev Singh P.W.2 thereupon gave

an application Exhibit PB to the Station House Officer,

Police Station, Gidderbaha and on its basis a daily

diary entry was recorded and after a preliminary probe,

a First Information Report for offences punishable under

Section 304B and 498A IPC was registered on the 8th

August, 1995. After investigation, Gurdeep Singh, the

appellant herein, his brothers, Harbhajan Singh and

Daljit Singh, parents, Jit Singh and Satnam Kaur, and

sisters Darshan Kaur and Daljit Kaur were brought to

trial for the aforesaid offences. The trial court vide

its judgment dated 15th July, 2000, found the charge

under Section 304B proved against the appellant, Jit

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Singh and Satnam Kaur and the three were, accordingly,

sentenced to undergo rigorous imprisonment for ten

years. The trial court, however, gave the benefit of

doubt to Harbhajan Singh, Daljit Singh, Darshan Kaur and

Daljit Kaur and acquitted them of the charge. The

matter was thereafter taken in appeal by the convicted

accused, and the High Court, has, by the impugned

judgment dismissed the appeal of Gurdeep Singh and

allowed the appeal of Jit Singh and Satnam Kaur. The

solitary appellant now before us is Gurdeep Singh.

2. Mr. Sudhir Walia, the learned counsel for the

appellant has raised several arguments before us during

the course of the hearing. He has first pointed out

that the presumption under Section 113B of the Indian

Evidence Act could be drawn with respect to a dowry

death only if the ingredients of Section 304B of the

Indian Penal Code were spelt out and in the light of the

uncertain evidence that had come on record, more

particularly, as there was no evidence of an unnatural

death or demands being made for dowry or other articles

soon before the death, the said provision was

inapplicable. It has also been pointed out that the

prosecution story that `25,000/- had been spent to buy a

plot was on the face of it wrong in the light of the

documentary evidence proved by D.W. 2 Ram Chand, an

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employee of the bank who deposed to the effect that a

sum of `93,000/- had been withdrawn from the bank on the

27th of July, 1994, and the statement of DW 4-

Pushpinder Singh, Junior Assistant, Tehsil Office,

Gidderbaha from the Sub-Registrar's office who deposed

that a sale deed for a plot priced at `54,000/- had been

executed and as such the facts indicated that the entire

amount for the sale had come from the account of Gurdeep

Singh the appellant herein. He has, accordingly,

pointed out that there was no evidence with respect to

any demand being made soon before the death. The

learned counsel has also placed reliance on a judgment

of this Court in Suresh Kumar Singh v. State of Uttar

Pradesh (2009) 17 SCC 243. He has, in addition, argued

that the prosecution story that P.W. 2, P.W. 3 and other

relatives had not been called to attend the cremation

was in clear contradiction vis-a-vis their statements

recorded under Section 161 Cr.P.C. and the evidence in

Court and that this contradiction had been pointed out

during the course of the cross examination. In the

alternative, it has been submitted that assuming for a

moment that no statements of P.Ws. 2 and 3 under

Section 161 Cr.P.C. had been recorded, as deposed by

them in their evidence, the prosecution would still not

gain any advantage as a statement recorded in Court for

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the first time would have very limited evidentiary

value.

3. Mr. Kuldip Singh, learned counsel for the State

has, however, supported the judgment of the trial court

and the High Court and has submitted that as the

deceased was a young woman,a presumption had to be drawn

that she had died an unnatural death and as such the

provisions of Section 113B of the Evidence Act would be

applicable to the facts of the case.

4. We have heard the learned counsel very carefully

and have gone through the record.

5. We first find that the evidence with respect to

the appellant Gurdeep Singh is almost identical with

that of the six accused who have been acquitted of the

same charge - two by the High Court and four by the

trial court and he appears to have been singled out as

being the husband. We first take up the argument

relating to Section 304B and the presumption drawn under

Section 113B. A bare reading of Section 304B pre-

supposes several factors for its applicability, they

being:- (i) death should be of burns or bodily injury or

has occurred otherwise than under normal circumstances:

(ii) within seven years of the marriage; and (iii) that

soon before her death she had been subjected to cruelty

or harrassment by her husband or her relatives. This

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Court in Suresh Kumar Singh's case supra has held that

even if one of the ingredients is not made out, the

presumption under Section 113B of the Evidence Act would

not be available to the prosecution and the onus would

not shift to the defence.

6. We find in the present case that there is no

evidence of unnatural death. It is the prosecution

story that the deceased had been poisoned. It has,

however, come in the evidence, and in particular, in the

report of the Forensic Science Laboratory dated 21st

August, 1995, that on an analysis of the bones and ashes

no poisonous substance had been found to be present. In

this view of the matter, the mere fact that the deceased

happened to be a young woman would not lead to the

inference that she had died an unnatural death.

Likewise, we find that the evidence of demand for dowry

or goods soon before death is also lacking. Admittedly,

the only evidence of any demand was of Rs. 25,000/- made

one year prior to the incident and as per the defence

evidence of D.W. 2 and D.W. 4, the money for the

execution of the sale deed had been taken out from the

bank a day earlier. In the light of these two factors

it has been held in paragraph 25 of the above cited case

as under:

Indisputably, in order to attract Section 304B, it is imperative on the part

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of the prosecution to establish that the cruelty or harassment has been meted out to the deceased `soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as `proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim."

7. We, therefore, find that evidence clearly fails

the proximity test as laid down in the aforesaid

judgment.

8. The courts below have, however, drawn a

presumption against the accused primarily on the plea

that they had not informed the parents of the deceased

that she had died and had hurriedly cremated her dead

body. We further see from the evidence of P.Ws. 2 and 3

that in their statements recorded in Court they did say

that they had received no information about the death on

which they had been confronted with their statements

recorded under Section 161 of the Cr.P.C. in which they

had stated that they had indeed been present when the

cremation had taken place. In order to explain this

contradiction both these witnesses disowned their 161

statements and testified that they had not made any

statement to the police. These statements are, however,

falsified by the evidence of P.W. 4 ASI Gurmel Singh,

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the police officer concerned, who deposed that the

police statements had been recorded by him as per the

dictates of the two witnesses. In the alternative,

even assuming that no statements of P.Ws. 2 and 3 had

been recorded under Section 161 Cr.P.C. this factor

destroys the substratum of the prosecution story in a

far greater measure as it must then be taken that their

statements were being recorded for the first time in

Court which would rob them of much of their evidentiary

value. In this case, we find that the two witnesses

are none other than the brother and the father of the

deceased.

9. We are, therefore, of the opinion that as a

result of the cumulative discussion above, the appellant

has to succeed. We, accordingly, allow this appeal, set

aside the judgments of the courts below insofar as he is

concerned and order his acquittal. Bail bonds stand

discharged.

.....................J [HARJIT SINGH BEDI]

......................J [GYAN SUDHA MISRA]

NEW DELHI AUGUST 25, 2011.

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