Gurmeet Singh vs The State Of Punjab

REPORTABLE RE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1731 OF 2010

GURMEET SINGH …APPELLANT

Versus

STATE OF PUNJAB …RESPONDENT

JUDGMENT

N. V. RAMANA, CJI.

1. The present appeal arises out of the impugned judgment dated

15.03.2010 passed by the High Court of Punjab and Haryana

at Chandigarh in Criminal Appeal No. 2298-SB of 2009,

wherein the High Court dismissed the appeal preferred by the

appellant herein and upheld the order of the Trial Court

convicting him under Section 304-B, IPC and sentencing him

to undergo rigorous imprisonment for seven years and a fine

of Rs.5000/-.

Signature Not Verified Digitally signed by SATISH KUMAR YADAV Date: 2021.05.28

2. 18:00:04 IST Reason:

The facts as per the prosecution are as follows: the deceased,

daughter of the complainant was engaged to the appellant in

1 2004. Subsequent to the engagement, the complainant left for

Abu Dhabi in April, 2004 and in his absence the marriage

between the appellant and the deceased was solemnized on

23.11.2004. In 2006, a child was born out of the wedlock.

When the complainant returned from abroad in 2007, the

deceased informed him that the mother-in-law, father-in-law

and the appellant-husband used to physically assault her

pursuant to the demand of dowry. Allegedly, the complainant

gave a gold chain to the accused persons. The complainant

thereafter went abroad and returned to India on 21.07.2008.

The deceased further disclosed that her in-laws were

demanding money for the purchase of a car. However, this

time, the complainant failed to fulfill the demand.

3. On 08.08.2008, the father-in-law of the deceased informed the

complainant that the deceased has consumed poison and lost

her consciousness and was being taken to the hospital. Upon

reaching the hospital, the complainant found his daughter to

be unconscious. Later that day she died.

4. The Trial Court, vide order dated 03.09.2009 convicted the

appellant-husband, father-in-law and mother-in-law for the

offence under Section 304-B and sentenced them to undergo

2 rigorous imprisonment for seven years each and a fine of

Rs.5000/- each. In default of payment of fine, the accused

persons were directed to undergo rigorous imprisonment for

one year each.

5. Aggrieved, the accused persons approached the High Court in

appeal. Vide impugned judgment dated 15.03.2010, the High

Court acquitted the father-in-law and the mother-in-law, but

upheld the order of conviction and sentence passed against

the accused-appellant. Challenging the aforesaid judgment of

the High Court, the accused-appellant has approached this

Court.

6. The counsel appearing on behalf of the accused-appellant

argued that the Courts below have, as a matter of routine,

applied the presumption u/s 113B of Evidence Act in the

instant case wherein even the basic and essential ingredient

of Section 304-B, IPC are not satisfied. It was submitted that

just because the death of the deceased occurred within seven

years of marriage, by no stretch of imagination can it be said

that the deceased soon before her death was subjected to

cruelty in connection with the demand of dowry. The fact that

the deceased was happy with the appellant is clearly evident

3 as she lived with him and bore his child, and never mentioned

any harassment or cruelty being meted out by the appellant.

Furthermore, the gifts received by the appellant-husband were

voluntarily given by the complainant and his family. Lastly,

without any charges under Section 498A, IPC a conviction

under Section 304-B, IPC cannot be sustained.

7. On the contrary, the counsel on behalf of the State argued that

it was undeniable that the death in the present case has

occurred within four years of marriage, under suspicious

circumstances i.e., due to poisoning. Moreover, fifteen days

before the incident, the deceased had specifically told her

father about the latest demand of money for the purchase of a

car. Lastly, it was established before the Courts below that the

accused had forged the medical records of his mother-in-law

to show cordial relationship between the two families.

Therefore, owing to all the aforesaid circumstances, the

presumption under Section 113B, Evidence Act operates

against the accused-husband, which has not been rebutted.

8. Heard the counsel appearing for both sides. Section 304-B,

IPC, which defines and provides the punishment for dowry

death, reads as under:

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“304-B. Dowry death. —(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

Explanation. —For the purpose of this sub- section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

9. Section 304-B(1), IPC defines ‘dowry death’ of a woman. It

provides that ‘dowry death’ is where death of a woman is

caused by burning or bodily injuries or occurs otherwise than

under normal circumstances, within seven years of marriage,

and it is shown that soon before her death, she was subjected

to cruelty or harassment by her husband or any relative of her

husband, in connection with demand for dowry. Further,

Section 304-B(2), IPC provides punishment for the aforesaid

offence. This Court, in the recent judgment of Satbir Singh v.

5 State of Haryana, Criminal Appeal Nos. 1735-1736 of 2010

summarised the law under Section 304-B, IPC and Section

113B, Evidence Act as under:

“i. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused.

iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.”

10. In the present case, admittedly, the marriage between the

deceased and the accused-appellant took place on 23.11.2004,

and the death of the deceased occurred in 2008 after she

consumed poison in her matrimonial home. Therefore, the first

6 two ingredients as to death under otherwise than ‘normal

circumstances’ within seven years of marriage stand satisfied.

11. The next important ingredient which needs to established is

the existence of dowry demand “soon before her death”. This

Court in catena of judgments have held that, “soon before”

cannot be interpreted to mean “immediately before”, rather the

prosecution has to show that there existed a “proximate and

live link” between the cruelty and the consequential death of

the victim. [See Satbir Singh v. State of Haryana (supra);

Kans Raj v. State of Punjab, (2000) 5 SCC 207; Rajinder

Singh v. State of Punjab, (2015) 6 SCC 477]

12. Here, the evidence of the father of the deceased (P.W.4)-

Sarwan Singh, assumes great importance. He has clearly

stated that after the marriage the deceased had telephonically

informed him about the consistent demand of a car or of

equivalent cash by the accused. In 2007, when this witness

visited India, the deceased had also expressed her

unhappiness due to the constant harassment. Moreover, when

he returned to the country in July, 2008, the deceased had

reiterated the factum of demands before him. The witness also

stated as to how the families attempted to mediate the dispute

7 themselves and on multiple occasions the father of deceased

gave certain gifts to the accused and his family to ameliorate

the situation. Another important circumstance which comes to

our attention is that the mother of the deceased had informed

the father 15-20 days prior to the incident about the

continuing harassment of the deceased on account of dowry.

Finally, on 08.08.2008, the father-in-law of the deceased

informed this witness about the consumption of poison by the

deceased.

13. It is necessary to highlight that both the Trial Court and the

High Court found the above evidence of P.W.4- the father of

the deceased to be reliable and consistent despite a thorough

cross-examination. No evidence was produced by the appellant

to disregard the aforesaid testimony. On perusing the

testimony of PW4, we are also of the considered opinion that

the same is consistent and inspires confidence. Taking into

account the evidence on record, particularly the testimony of

the father of the deceased, we are of the opinion that the

prosecution has proved the necessary ingredients under

Section 304-B, IPC against the accused-appellant.

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14. Now, that necessary ingredients under Section 304-B, IPC

stands satisfied, a presumption of causation arises against the

accused under Section 113-B, Evidence Act and the accused

has to rebut this statutory presumption.

15. The defence of the accused is that his family and family of the

deceased shared a cordial relationship, and in fact, the

appellant had helped the mother of deceased in getting

treatment of cancer. The Trial Court, after a thorough

examination of the evidences- both oral and documentary,

concluded that the accused-appellant, who was working as a

technician in a hospital, has forged the hospital records to

prove the existence of cordial relationship between the families

of the deceased and the accused. The relevant observations of

the Trial Court on this point are as follows:

“Gurmeet Singh accused was working as O.T. Technician. Gurmit Singh brought Baksho Devi to the hospital and he examined her and given Chemotherapy. He has further stated that photo copy of the entries in the file are Ex.Dl and she was treated upto 17.8.2008. This witness in his cross-examination has admitted that it is correct that in the entries in the file it is not recorded as to who brought the patient. He has also admitted that remarks column of Ex.Dl is blank and it does not bear his signatures any where. He also stated that what treatment was to be given is mentioned

9 in the treatment file. He also stated that patient was also treated by other doctors. So this witness has stated that the patient was treated upto 17.8.08. Ex.Dl is dated 18.8.08. Admittedly Rama Devi has expired on 8.8.08. The case against accused Gurmit Singh was registered on 9.8.08. As per the statement of PW-11 SI Dharam Pal, accused Gurmit Singh was arrested in this case on 10.8.08. The personal search memo of the accused is Ex.P- 26, grounds of arrest memo is Ex.P-27 and ground of information memo is Ex.P-28 which was prepared by him and signed by accused and ASI Sukhdev Singh. So, if the accused was in custody since 10.8.08 till date, then how he could take her mother-in-law for treatment before Dr. K.K. Nayak DW-2 or got her treated from there. So, the defence evidence appears to have been crated and the same has been manipulated by the accused that he had been getting treatment of his mother-in-law to show that his relations were cordial with the family of the victim or with the victim falls to the ground.” (emphasis supplied)

16. The aforesaid conclusion reached by the Trial Court is based

on a detailed analysis of the evidence on record, and does not

warrant any interference. The appellant has not brought to our

attention any material to suggest that the above finding of the

Trial Court was perverse or without any basis. Hence, this

defence of the appellant merits rejection as being untenable.

17. The next submission of the appellant was that the deceased

was suffering from depression owing to the health of her

10 mother. However, no evidence has been produced on record by

the appellant to indicate that the deceased was depressed due

to the alleged poor health condition of her mother. In fact, no

evidence was produced to even show that her mother’s health

was deteriorating.

18. Therefore, the prosecution having satisfied the necessary

ingredients under Section 304B of IPC, the presumption under

Section 113-B, Evidence Act takes full effect in this particular

case, which has not been rebutted by the accused-appellant

herein. The appellant has failed to make out a case for us to

interfere in the concurrent opinions of the Courts below,

convicting the accused-appellant under Section 304-B, IPC.

19. Lastly, the counsel on behalf of the appellant argued that

without any charges under Section 498A, IPC a conviction

under Section 304-B, IPC cannot be sustained. On this aspect

this Court in the case of Kamesh Panjiyar v. State of Bihar,

(2005) 2 SCC 388 held as under:

“12. …….It is to be noted that Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The

11 Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.” (emphasis supplied)

20. Therefore, the argument raised by the counsel on behalf of the

appellant cannot be accepted as the offences under Section

498-A and Section 304-B, IPC are distinct in nature. Although

cruelty is a common thread existing in both the offences,

however the ingredients of each offence are distinct and must

be proved separately by the prosecution. If a case is made out,

there can be a conviction under both the sections.

21. Before parting with this matter, we are of the opinion that it

would be beneficial to reiterate the guidelines issued by this

Court in Satbir Singh v. State of Haryana (supra) relating

to trial under Section 304-B, IPC:

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“v. Due to the precarious nature of Section 304- B, IPC read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.

vi. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.

vii. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act.

viii. Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.

ix. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the

13 procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.

x. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.

xi. Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.”

22. In light of the above findings, after perusing the relevant

material and the evidence available, we find that the High

Court and Trial Court have not committed any error in

convicting the appellant under Section 304-B, IPC as the

appellant failed to discharge the burden under Section 113-

B, Evidence Act. The appellant has not brought any material

on record which merits the interference of this Court in the

impugned judgment.

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23. Appeal dismissed. Pending applications, if any, are

disposed of accordingly.

………………………..CJI.

(N.V. RAMANA)

………………………… J.

(SURYA KANT)

…………………………. J.

(ANIRUDDHA BOSE) NEW DELHI DATED : 28.05.2021

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