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CASE NO.: Appeal (crl.)  1161 of 2003

PETITIONER: Baljeet Singh & Anr.                                     

RESPONDENT: State of Haryana         

DATE OF JUDGMENT: 24/02/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: JUDGMENT

SANTOSH HEGDE,J.

       The appellant herein and three others were charged for  offences punishable under Sections 304-B, 306, 498-A and  201 of the IPC before the Addl. Sessions Judge, Sonepat who  after trial came to the conclusion that the prosecution has  failed to established its case against A-1 Sukhbir and A-4  Krishna and acquitted them of the said charges, while it came  to the conclusion that A-2 Baljeet, who is the appellant  before us, was guilty of offences punishable under Section  304-B IPC as also Section 498-A IPC. The said court found  A-3 Ganga Dutt guilty of offence punishable under Section  201 of IPC. The trial court sentenced the first appellant  herein for the offence punishable under Section 304-B IPC to  undergo 7 years RI and to pay a fine of Rs.500/- while it  sentenced him to undergo 2 years RI for an offence  punishable under Section 498-A IPC. It convicted the second  appellant for an offence punishable under Section 201 IPC  and sentenced him to undergo 2 years RI. The sentences  imposed on the first appellant Baljeet Singh were directed to  run concurrently. Being aggrieved by the said conviction and  sentence, the said convicted accused preferred an appeal  before the High Court of Punjab & Haryana at Chandigarh  which by its impugned judgment confirmed the said  conviction and sentence and dismissed the appeal.           It is against the said judgment of the High Court the  two appellants filed the above criminal appeal. During the  pendency of this appeal, A-3 Ganga Dutt died, hence, his  appeal abated and the present appeal is confined to first  appellant only.         Brief facts necessary for the disposal of this appeal are  as follows:         It is the case of the prosecution as stated by PW-4  Baldeva in his complaint lodged on 14.2.1987 as also in his  evidence before the court that his daughter Darshana was  married to the appellant herein about 5 years before the filing  of the said complaint and he had spent about Rs. 30,000/- in  the said marriage. He also alleged that he had given clothes  and utensils, apart from ornaments. It is stated by this witness  that about one and half months after the marriage, Darshana  told her mother that her in-laws were not happy with the  dowry given, therefore, they were always taunting her in this  regard. PW-4 also alleged that Darshana’s father-in-law and  other members of her family including her husband used to  beat her. The further case of the complainant is that a year  after her marriage, the appellant herein demanded a scooter

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and about 4 months prior to the filing of the complaint, the  appellant had demanded Rs.10,000/- for securing  employment for his brother, but PW-4 could not fulfil these  demands. It is further stated that about 2 weeks after  Darshana went to her marital home, a cousin of Darshana, by  name, Dilbagh (PW-7) had gone to the village of the  appellant to enquire about the welfare of Darshana and he  came to know that Darshana had died as a result of taking  pills of insecticide. This witness had also come to know that  the accused persons had disposed of Darshana’s body  without informing her parents and other members of the  family. The written complaint in question was filed before  the Superintendent of Police which was transferred for  investigation to the jurisdictional Police on 14.2.1987. In the  said written complaint date of death of Darahsna was given  as 6.2.1987. On completion of the investigation, charge sheet  for offences punishable under Sections 498-A, 306 and 201  IPC was filed against four accused persons before the Addl.  Sessions Judge, Sonepat. At the time of framing of charges,  the court also included Section 304-B as an additional charge  against the accused persons. After the trial, A-1, Sukhbir, the  younger brother of the appellant and A-4 Krishna, sister of  the appellant were acquitted of the charges while the  appellant and his father were convicted as stated above and  their appeal having been dismissed by the High Court, they  approached this Court by way of above criminal appeal.  After the death of the second appellant, the present appeal is  confined to the appellant Baljeet only. Shri Sushil Kumar, learned senior counsel appearing for  the appellant contended that both the courts below seriously  erred in drawing a presumption under Section 113B of the  Evidence Act and shifting the onus of proof on the accused  without the prosecution having proved the basic requirement  under the said section. He also contended that the evidence  led on behalf of the prosecution to establish either the  demand of dowry or harassment meted out to deceased  Darshana cannot be accepted at all because it is an  afterthought of PW-4 to harass the family of the appellant  after his daughter Darshana committed suicide. Learned  counsel pointed out that though the death of Darshana took  place on 6.2.1987 and her parents and relatives were present  at the cremation, no complaint was immediately filed but a  well drafted complaint making false allegations against the  appellant was made by PW-4 on 14.2.1987. He also  contended that the courts below erred in relying upon such a  belated complaint. He further contended that the prosecution  has failed to establish that Darshana’s death had occurred  within 7 years of her marriage and the evidence led by the  prosecution to establish demand of dowry and harassment  have all emanated from interested sources, hence, the courts  below erred in convicting the appellant and his father.   Ms. Avneet Toor, learned counsel appearing for the  respondent, however, contended that the courts below were  justified in drawing a presumption against the accused  because the appellants had failed to establish their case that  the marriage of Darshana had taken place 11 years before her  death. Learned counsel also contended that it is clear from  the evidence of PW-4 and other prosecution witnesses that  the appellant and his father were constantly nagging  Darshana for not bring sufficient dowry, therefore, the courts  below were justified in coming to the conclusion that the  prosecution has established its case against the appellant and  his deceased father.         A perusal of the judgment of the two courts below  clearly shows that they have heavily relied upon the

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presumption available under Section 113-B of the Evidence  Act. This is done by shifting the onus of proving the date of  marriage on the accused. Therefore, we will first consider the  argument addressed on behalf of the parties in regard to the  availability of presumption under Section 113-B of the  Evidence Act.  Section 304-B of the IPC which defines "Dowry death"  reads thus:- "Dowry death \026 (1) Where the death of a woman  is caused by any burns or bodily injure 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 \026 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."            A perusal of this section clearly shows that if a married  woman dies otherwise than under normal circumstances  within 7 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 in connection  with demand for dowry, such death shall be called "dowry  death" and such husband or relative shall be deemed to have  caused the death. The conditions precedent for establishing  an offence under this Section are as follows: (a) that a  married woman had died otherwise than under normal  circumstances; (b) such death was within 7 years of her  marriage; (c) and the prosecution has established that there  was cruelty and harassment in connection with demand for  dowry soon before her death.         Section 113-B permits a presumption to be drawn  against the accused in regard to dowry death provided the  prosecution establishes that soon before her death the woman  was subjected to cruelty or harassment.         The explanation to said section says the word "dowry  death" shall have the same meaning as in Section 304-B of  the IPC which means such death should be otherwise than in  normal circumstances and within 7 years of marriage. On a  conjoint reading of these sections, it is clear that for drawing  a presumption under Section 113-B of the Evidence Act  firstly there should be a death of a woman otherwise than in  normal circumstances, within 7 years of marriage and the  prosecution having shown that soon before her death she was  subjected to cruelty or harassment in connection with any  demand for dowry by persons accused of having committed  the offence. Unless and until these preliminary facts are  established by the prosecution, it is not open to the courts to  draw a presumption against the accused invoking Section  113-B of the Evidence Act. We are supported in this view of  ours by a judgment of a three-Judge Bench of this Court in  the case of Ramesh Kumar vs. State of Chhattisgarh (2001  (9) SCC 618) wherein this Court held thus:

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       "Before the presumption may be raised, the  foundation thereof must exist. A bare reading of  Section 113-A shows that to attract applicability  of Section 113-A, it must be shown that (i) the  woman has committed suicide, (ii) such suicide  has been committed within a period of seven  years from the date of her marriage, (iii) the  husband or his relatives, who are charged had  subjected her to cruelty. On existence and  availability of the above said circumstances, the  court may presume that such suicide had been  abetted by her husband or by such relatives of her  husband. Parliament has chosen to sound a note of  caution. Firstly, the presumption is not  mandatory; it is only permissive as the  employment of expression "may presume"  suggests. Secondly, the existence and availability  of the abovesaid three circumstances shall not,  like a formula, enable the presumption being  drawn; before the presumption may be drawn the  court shall have to have regard to "all the other  circumstances of the case". A consideration of all  the other circumstances of the case may  strengthen the presumption or may dictate the  conscience of the court to abstain from drawing  the presumption. The expression \026 "the other  circumstances of the case" used in Section 113-A  suggests the need to reach a cause-and-effect  relationship between the cruelty and the suicide  for the purpose of raising a presumption. Last but  not the least, the presumption is not an  irrebuttable one. In spite of a presumption having  been raised the evidence adduced in defence or  the facts and circumstances otherwise available on  record may destroy the presumption. The phase  "may presume" used in Section 113-A is defined  in Section 4 of the Evidence Act, which says \026  "Whenever it is provided by this Act that the court  may presume a fact, it may either regard such fact  as proved, unless and until it is disproved, or may  call for proof of it."  

       The above case, of course, deals with Section 113-A of  the Evidence Act. However, the principle laid down therein  squarely applies to cases involving Section 113-B of the said  Act also in so far as they relate to the proof of facts  enumerated in the section before a presumption is drawn.          From the above, it is clear that certain conditions  precedent by way of proved facts should be brought on  record before the courts can draw a presumption under  Sections 113-A or 113-B of the Evidence Act.  We will now examine whether the prosecution in this  case has discharged its initial burden so as to attract the  presumption under Section 113-B of the Evidence Act and  whether the courts below have correctly applied that law to  the facts of this case.  The trial court in the course of its judgment while  dealing with the presumption available under Section 113-A  and 113-B held thus :         "In this case, now in view of new statutory  provisions, onus also lies on the accused to rebut  the presumption which may be raised under  Section 113-A of the Indian Evidence Act or  under Section 113-B of the Indian Evidence Act."  

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       A reading of this part of the judgment clearly shows  that the trial court proceeded as if a presumption is available  against the accused merely because an allegation of death  within 7 years of the marriage was made, without even the  prosecution having proved the required preliminary fact.  Having so erroneously shifted the onus the court then  proceeded to hold that the accused had not discharged the  said onus, hence, convicted the accused primarily based on  the presumption under Section 113-B of the Evidence Act.         The High Court also put the onus of proving the date of  marriage on the accused by stating that since a specific plea  was taken by the accused persons that the marriage had taken  place 11 years prior to the death of Darshana, there was an  obligation cast upon the accused to prove this aspect of their  assertion and since they had not proved this fact, it held that  the trial court rightly drew an adverse presumption against  the accused persons.          Having noticed the requirement of law both under  Section 304-B of the IPC as also under Section 113-B of the  Evidence Act, we are of the considered opinion that both the  courts below erred in drawing an adverse presumption  against the accused by shifting the onus on them to prove the  date of marriage, which, in our opinion, is not the  requirement of law. On the contrary, the law requires the  prosecution to establish first by cogent evidence that the  death in the case occurred within 7 years of the marriage.  Therefore, we will have to consider whether the prosecution  has established the factum of Darshana having died within 5  years of her marriage as contended by PW-4. A perusal of his  evidence shows that according to him marriage of Darshana  was solemnized in the year 1982 but he was not aware which  Sambat it was. He says it was the month of Jaistha but was  not sure whether it was Sambat 2035. He specifically states  that a Bahi entry was made by his nephew Satbir in regard to  the date of marriage and expenses incurred in connection  therewith, but this document was not produced in the court.  Existence of such a document is established not only from  the evidence of PW-4 but also from the evidence of the  Investigating Officer PW-10 who says that he was made  known of the existence of such a document but he did not  either seize the said document or verify the date of marriage  from the said document. He also states that he made an  inquiry about the year of marriage of Darshana and nobody  was able to tell the date but year of marriage was told to him.  He goes further to state that he did not record the statement  of those persons who told him about the year of marriage.  Therefore, it is clear that the prosecution has failed to  produce the available evidence regarding the date of  Darshana’s marriage thereby failed to discharge its initial  onus of proof. The defence in this case has unequivocally  challenged the correctness of the date of marriage, as stated  by the prosecution. It even examined defence witnesses in  this regard. Be that as it may the question whether the  defence has been able to establish its version of the date of  marriage is immaterial because in the first instance it was for  the prosecution to establish this fact which for reasons stated  above, it has failed to do. Both the courts below, thus, have  clearly erred in shifting the onus of proving the date of  marriage on the defence and drawing a presumption against  it. This is evident from the finding of the trial court which is  as follows : "Accused Baljeet in this case has not been able to  rebut the mandatory presumption under Section 113-B of the  Indian Evidence Act thus prosecution has been able to prove  him the guilt". This finding which is concurred to by the  High Court, in our opinion, is wholly erroneous and

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unsustainable in law.         We will now consider whether the prosecution has  established its case de hors the presumption available under  the Evidence Act. In this process, we should bear in mind the  fact that the complaint in question was filed nearly 8 days  after the incident and a perusal of the said complaint shows  that it was a well thought, deliberated and typed document  which even mentions the sections relating to the offences of   which the accused persons were said to be guilty. Though  PW-4 has denied that this was a document prepared after  consultation and on the advice of outsiders, we must note that  he admittedly is an illiterate and, in our opinion, this denial is  wholly false. The narration of facts in the complaint  enumerates even the ingredients of the offence under the  Indian Penal Code and the sections under which the offences  fall. This undoubtedly goes to show that this is a document  which has come into existence after lots of deliberation and  consultation. In this context, the admission of the informant  that he had gone to the court where the report to be lodged  was prepared, is significant.  In the above background, we will now consider the  evidence led by the prosecution. Though PW-4 says that he  had no knowledge of the death of Darshana and her  cremation was done without informing him and his family,  from the material on record, it could be seen that this  statement of PW-4 is not true. It has come in evidence that a  sketch was prepared showing the place where Darshana’s  body was kept before the funeral. This sketch admittedly was  prepared on instructions of PW-4. This sketch indicates that  firstly Darshana’s body was kept on the first floor of the  house and later brought down and kept in the courtyard on a  cot. PW-4 could not have acquired such knowledge so as to  give it to the maker of the sketch if he was not present before  Darshana’s funeral. Therefore, we think that this part of the  evidence of PW-4 that the accused did not inform Darshana’s  family about her death before her funeral cannot be believed.  The prosecution has then relied on the evidence of PWs.4 to  7 to establish their case of the demand for dowry and  harassment meted out to Darshana. We should bear in mind  that all these witnesses are close relatives of Darshana being  her mother and uncles and their evidence will have to be  considered for whatever it is worth in the background of the  findings we have given in regard to the evidence of PW-4.  PW-5 the mother of the deceased in her examination-in- chief repeats whatever her husband has stated in his evidence  which we have already considered and not found it safe to  rely on. In her cross-examination she stated that after the  death of Rohtas, who was her only brother, Darshana used to  be depressed. She further states that she was also depressed  because she had no children. This indicates that there is a  possibility of Darshana having committed suicide in a state of   depression.          PW-6 is an uncle of Darshana who also speaks about  the harassment allegedly meted out by the appellant and his  family to Darshana but these facts are not mentioned to the  I.O. in his statement under Section 161 (See Ex.DA). He  states that they came to know of the death of Darshana from  one Balwan who had told about the death of Darshana to a  cousin of Darshana, by name Dilbagh, who in turn had  informed the other members of the family about the death of  Darshana. Curiously none of the witnesses who came to  know of the incident from Balwan are able to give either the  correct address, the particulars of the caste and occupation of  Balwan which gives us an impression that this Balwan is an  imaginary person. In these circumstances, bearing in mind

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the falsity we have found in the evidence of PW-4, we do not  consider it safe to place reliance on such oral evidence led by  the prosecution to establish the fact that the appellant or his  family used to harass Darshana. There is one other aspect of  the case to be borne in mind to consider the role played by  the appellant in the alleged harassment of Darshana. It has  come in evidence that the appellant was not residing in the  village with his wife but was employed in Jagadhari in  Ambala District and was only visiting the village now and  then. This fact has been noticed by the trial court but it  rejected the same by observing that if the appellant was not  present when Darshana died the evidence under section 304- B is not effected by the factum of appellant being away from  his house at the time of death, forgetting the fact that the  argument of the defence was not merely the absence of the  appellant at the time of death of Darshana but also the  possibility of appellant’s involvement in the alleged  harassment, since most of the time he was away from the  village. That apart, we notice that the courts below have not  founded the guilt of the appellant on the oral evidence  produced by the prosecution but the same is based primarily  on a presumption drawn under Section 113-B of the Evidence  Act which we have held to be impermissible in law in view  of the prosecution’s failure to prove the basic facts which  was a condition precedent to the drawing of such a  presumption.         For the reasons stated above, this appeal succeeds. The  conviction and sentence imposed on the appellants by the  courts below are set aside. If the appellants are in custody,  they shall be released forthwith.         The appeal is allowed.