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CASE NO.: Appeal (crl.)  756 of 1999

PETITIONER: Harjit  Singh                                                            

RESPONDENT: State of Punjab                                          

DATE OF JUDGMENT: 08/12/2005

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA :                  Jasbir Kaur, a young woman, in her prime age of 22-23 years, died  on 26.7.1988.  She died of poisoning.  The poison is said to be aluminum  phosphide which is a common  pesticide.  She was married with the respondent  on 05.10.1986  in a village known as Maur Khurd.  Her matrimonial home was  at Bhatinda, which is at a distance of 40 k.m. from  Maur Khurd.   She delivered  a male child at her parents house i.e. at Maur Khurd on 23.4.1988.  The child,  however, died on 25.4.1988.  The mother of the deceased P.W.-3 (Mukhtiar  Kaur) disclosed the said fact to her after about 20 days.  The deceased came  back to her matrimonial home soon thereafter.   A day prior to the date of  occurrence i.e. on 25.07.1988, her father Gurlal Singh (P.W.-2) came to see her  at Bhatinda and found her to be hale and hearty.  He received the information of  her death on 26.07.1988 at about 1.00 PM at Maur Khurd.  He took a bus and  reached Bhatinda  at about 2.00 PM.  He allegedly found the appellant, his  mother and brother sitting there.  They allegedly slipped away from the house  one by one.  He sent for his other relatives and after they came he left the house  for going to the Police Station.  He on his way met the Inspector of Police at the  bus stand at about 11.00 PM.  His statement  was recorded at the bus station.   

The mother of the  appellant at the relevant time was said to be residing  with her husband at Ferozepur which is situated at a distance of 132 Km.          The defence of accused was that they were not present at the time of death  of the deceased.  According to the appellant, he was at his work place till 12.30  PM while according to his brother Jaspal Singh, he at the relevant time was at   Ludhiana undergoing training.  The defence of mother Mohinder Kaur was that  she at the relevant time had been at Ferozepur.              The inquest of the dead body was held at about 11.45 PM on 26.07.1988  and the  post mortem was held on 27.7.1988.  P.W.1 (Dr. Balbir Singh) who  conducted the post mortem could not ascertain the cause of death.  The viscera  of the deceased was preserved and later on sent for chemical examination.  The  chemical examiner submitted his report on 15.11.1988 opining that  aluminum  phosphide was found therein.  

On the basis of the statements made by Gurlal Singh (P.W.-2) before the  Investigating Officer Dharam Singh (P.W.7), a case under Section 304-B of the  Indian Penal Code was registered against the appellant, his brother Jaspal Singh  and  mother Mohinder Kaur on the allegation that after solemnization of   marriage of Sarabjit Singh, the younger brother of the appellant, the accused  started taunting and harassing Jasbir Kaur for bringing less dowry as the wife of  Sarabjit Singh  had brought Refrigerator, Television and Cooler.  Allegedly, to  fulfil the said demand of the accused, the complainant paid a sum of Rs.3,000/-  around Diwali on one occasion and  Rs.1,000/- on two other occasions within  two months therefrom.  It was further alleged that in the month of March, 1988,  when Gurlal Singh went to the house of in-laws to bring her to her house as she

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was in the family way, the accused refused to send her with him.  It was further  alleged that  Raghbir Singh, the brother of the deceased came to Bhatinda when  he was informed by his sister that his father should take her away to Maur  Khurd otherwise the accused would kill her at the time of delivery.  The  appellant was arrested on 05.08.1988.  

The learned Addl. District and Sessions Judge convicted the appellant  herein as also his mother for commission of offence under Section 304-B of the  Indian Penal Code and they were sentenced to undergo rigorous imprisonment  for seven years.  The learned Judge, however, recorded a judgment of acquittal  so far as Jaspal Singh is concerned .  The learned Addl .District and Sessions  Judge in his judgment relying  upon or on the basis of the evidence of the  prosecution witnesses arrived at a finding that the dowry was paid to the  appellant and his mother Mohinder Kaur and, thus,  they were guilty of the  commission of offence.

The High Court, on the other hand, did not discuss the merit of the matter  so far as the appellant is concerned but concentrated on the role played by his  mother Mohinder Kaur and came to the finding that she did not accept any  dowry.  Curiously enough, the High Court propounded a theory which was not  the prosecution case that the deceased must have consumed poison to finish  herself allegedly on the ground that when P.W.-2 (Gurlal Singh) came to see her  on 25.7.1988, he must have been insulted or hurt that his daughter is not happy  in the house of her in-laws.   

We would proceed on the basis that in this case the prosecution has  established the case of payment of dowry to the extent of Rs.5,000/-.  The  question, however, would remain as to whether the demand of dowry was soon  before the deceased was treated cruelly or harassed by the appellant.  The  brother of the deceased was not examined.  It was, therefore, not proved that  any apprehension was expressed by the deceased that she would be killed  during delivery of the child.  The fact remains that she delivered the child at her  parents place.  It  is also accepted  that she at the time of delivery had developed  certain complications as a result of which she had to be shifted to a nursing  home.  There exists a dispute  as who took her to the nursing home, the husband  or her father.  But the fact remains that the delivery of the child was premature,  and the child expired within two days of its birth.  

At this juncture, we may  notice the deposition of the prosecution  witnesses.

P.W.-1 (Dr. Balbir Singh) opined that the death was due to taking of  poison.  A contusion was also found on the dead body.  The said witness,  however, explained the presence thereof stating "Contusion in question on the  right side of the neck which are faintly appears could be due to the irritation in  the mouth and neck as a result of irritation."            P.W.-2 (Gurlal Singh), father of the deceased, merely stated "My daughter  had died due to non-payment of dowry to the satisfaction of accused, by me."He  did not say that any other demand was made or his daughter was subjected to  any other form of cruelty or harassment.  In cross-examination, he contended  that he had stated before the Investigating Officer that the accused persons  started taunting his daughter for not bringing Refrigerator, Cooler and  Television but such a statement was not found to have been made before  the  Investigating Officer.  He even did not make any statement before the police  that the accused persons either in unison or individually demanded dowry.   

His statement was also recorded by a Magistrate holding the post of  D.O.R.G.  It stands  accepted that he did not make any statement before him in  regard to the demand of or taking of Rs.3,000/- by Harjit Singh  for purchase of  Refrigerator, Cooler and Television although he made such a statement in court.   It appears from the records that he also made a statement before the D.O.R.G. to  the effect  that his daughter and son-in-law collected Rs.3,000/- for purchasing a  stereo and two months thereafter, his daughter took Rs.1,000/- for installation of  hand-pump.  He, thus, in a way contradicted himself  as regard nature and

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purpose of demand. This belies the genesis of the prosecution case.   Although  Sarabjeet Singh’s marriage and bringing of luxury items by his wife were said to  be the ground for demand of dowry, as we have noticed hereinbefore, he  contended that he paid  Rs.3,000/-  and Rs.1,000/-  on two occasions as dowry  within two months thereafter i.e. between October and December, 1987 whereas  according to the defence, Sarabjeet Singh was married on 24.01.1988.    Curiously enough, P.W.3 (Mukhtiar Kaur) categorically admitted that she had   no grievance as against her son-in-law, nor did she ever make any complaint.   

P.W.-4 (Ajaib Singh) is the brother of the complainant whose evidence is  not material for our purpose.  P.W.7 (Dharam Singh) is the Investigating  Officer.   

Concededly, there is no evidence on records to show that the deceased  was subjected to any cruelty or harassment between April, 1988 and the date of  his death.  In the light of the above-mentioned evidence, the question which  arises for consideration is as to whether a case under Section 304-B of the  Indian Penal Code can be said to have been made out.   

Section 304-B of the Indian Penal Code reads as under:-

"304B. 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."

        A legal fiction has been created in the said provision to the effect that in  the event it is established  that soon before the  death, the deceased was  subjected to cruelty or harassment by her husband or any of his relative; for or   in connection with any demand of dowry,  such death shall be called "dowry  death",  and such husband or relative shall be deemed to have caused her death.   The Parliament has also inserted Section 113 B of the Indian Evidence Act by  Act No.43 of 1986 with effect from 1.5.1986 which reads as under :-

"113.B- Presumption as to dowry death.- When the  question is whether a person has committed the dowry  death of a woman and it is shown that soon before her  death such woman had been subjected by such person to  cruelty or harassment for, or in connection with, any  demand for dowry, the Court shall presume that such  person had caused the dowry death.

Explanation.-   For  the purposes of this section, "dowry  death", shall have the same meaning as in section 304-B  of the Indian Penal Code  (45  of 1860)."

From a conjoint reading of Section 304-B of the Indian Penal Code and  Section 113-B of the Indian Evidence Act, it will be apparent that a presumption  arising thereunder will operate if the prosecution is able to establish the

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circumstances as set out in Section 304-B of the Indian Penal Code.          The ingredients of the aforementioned provisions are :  

(1) That the death of the woman caused by any burns or bodily injury or  in some circumstances which is not normal; (2) Such death occurs within 7  years from the date of her marriage (3) That the victim was subjected or cruelty  or harassment by her husband or any relative of her husband; (4) Such cruelty or  harassment should be for or in connection with demand of dowry;  and (5) is  established that such cruelty and harassment was made soon before her death.  

In the case of unnatural death of a married woman as in a case of this  nature, the husband could be prosecuted under Section 302, Section 304-B and  Section 306 of the Indian Penal Code.  The distinction as regards commission of  an offence under one or the other provisions as mentioned hereinbefore came up  for consideration before a Division Bench of this Court in Satvir Singh & Ors.   v.  State of Punjab and another, [(2001) 8 SCC 633], wherein it was held :          "Thus, there are three occasions related to dowry.  One is  before the marriage, second is at the time of marriage and  the third is "at  any time" after the marriage.  The third  occasion may appear to be an unending period.  But the  crucial words are "in  connection with   the marriage of  the said parties".  This means that giving or agreeing to  give any property or valuable security on any of the  above three stages should have been in connection with  the marriage of the parties.  There can be many other  instances for payment of money or giving property as  between the spouses. For example, some customary  payments in connection with birth of a child or other  ceremonies are prevalent in different societies.  Such  payments are not enveloped within the ambit of "dowry".   Hence the dowry  mentioned in Section 304-B should be  any property or valuable security given or agreed to be  given in connection with the marriage.            It is not enough that harassment or cruelty was  caused to the woman with a demand for dowry at some  time, if Section 304-B is to be invoked.  But it should  have happened "soon before her death."  The said phrase,  no doubt, is an elastic expression and can refer to a  period either immediately before her death or within a  few days or even a few weeks before it.  But the  proximity to her death is the pivot indicated by that  expression.  The legislative object in providing such a  radius  of time by employing the words "soon  before her  death" is to emphasise the idea that her death should, in  all probabilities, have been the aftermath of such cruelty  or harassment.  In other words, there should be a  perceptible nexus between her death and the dowry- related harassment  or cruelty inflicted on her.  If the  interval elapsed between the infliction of such  harassment or cruelty and her death is vide the court  would be in a position to gauge that in all probabilities  the harassment or cruelty would not have been the  immediate cause of her death.  It is hence for the court to  decide, on the facts and circumstances of each case,  whether the said interval in that particular case was  sufficient to snuff its cord from the concept "soon before  her death"."

Yet again in Hira Lal and Others v. State (Govt. of NCT ) Delhi,  [(2003) 8 SCC 80], this Curt observed that "The  expression  "soon  before her  death" used in the substantive Section 304-B  IPC and Section 113-B of the

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Evidence Act is present with the idea of proximity test.  No definite period has  been indicated and the expression "soon  before" is not defined.  A reference to  the expression  "soon  before" used in Section 114 Illustration (a) of the  Evidence Act is relevant.  It lays down that a court may presume that a man who  is in the possession of goods "soon  after the theft, is either the thief or has  received the goods knowing them to be stolen, unless he can account for their  possession".  The determination of the period which can come within the term  "soon  before" is left to be determined by the courts, depending upon facts and  circumstances of each case.  Suffice, however, to indicate that the expression  "soon  before" would normally imply that the interval should not be much  between the cruelty or harassment concerned and the death in question.  There  must be existence of a proximate and live link between the effect of cruelty  based on dowry demand  and the death concerned.  If the alleged incident of  cruelty is remote in time and has become stale enough not to disturb the mental  equilibrium of the woman concerned, it would be of no consequence."           The same opinion was expressed by the same learned Judge in Kaliya  Perumal and Another v. State of Tamil Nadu, [(2004) 9 SCC 157 Para 4] and  Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar, [(2005) 2 SCC  388, Para 10] See also  State of A.P. v. Raj Gopal Asawa and Another,  [(2004) 4 SCC 470, Paras 10 and 11].  

In the aforementioned situation, the presumption arising either under  Section 304-B of the Indian Penal Code  or Section 113-B of the Indian  Evidence Act could not be invoked against the Appellant.  The prosecution,  therefore, must be held to have failed to establish any case against the Appellant  herein.      

Faced up with this situation, the learned counsel appearing on behalf of  the State relies upon a Judgment of this Court in K.Prema S.Rao and Another   v. Yadla Srinivasa Rao and others, [(2003) 1 SCC 217], wherein  an  observation was made in the peculiar facts and circumstances of that case that  even if the accused is not found guilty for commission of an offence under  Section 304 and 304-B of the Indian Penal Code, he can still be convicted under  Section 306 IPC thereof.   

Omission to frame charges under Section 306 in terms of Section 215 of  the Code of Criminal Procedure may or may not result in failure of justice, or  prejudice the accused.

It cannot, therefore, be said that in all cases, an accused may be held  guilty of commission of an offence under Section 306 of the Indian Penal Code  wherever the prosecution fails to establish the charge against him under Section  304-B thereof.  Moreover, ordinarily such a plea should not be allowed to be  raised for the first time before the court unless the materials on record are such  which would establish the said charge against the accused.  Before invoking the provisions of Section 306 IPC, it is necessary to  establish  that : (i) the deceased committed suicide,  and  (ii) she had been  subjected to cruelty within the meaning of Section 498A IPC.   

Only in the event those facts are established, a presumption in terms of  Section 113A of the  Indian Evidence Act could be raised.  In the instant case,  the prosecution has not been able to prove that the deceased was subjected to  cruelty within the meaning of Section 498A IPC.  No case that the deceased  committed suicide was also made out.

In K. Prema S. Rao (supra), it was found as of fact :

  "Both the courts below have found the husband guilty  of cruel treatment of his wife and as a result the wife  committed suicide within seven years of their marriage. On  such evidence the presumption which arises under Section  113-A of the Evidence Act is that the husband abetted the  suicide. The word "cruelty" as mentioned in the Explanation  below Section 113-A of the Evidence Act has been given the

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same meaning as contained in the Explanation below Section  498-A IPC. On the facts found, "the wilful" conduct of the  husband in forcing the deceased to part with her land which  she had received in marriage as "stridhana" and for that  purpose concealing her postal mail was so cruel that she was  driven to commit suicide. A case of conviction and sentence  of Accused 1 under Section 306 IPC has thus clearly been  made out even though his acquittal for commission of the  offence of "dowry death" punishable under Section 304-B  IPC is not found liable to be disturbed."

In Satvir Singh (supra), it was observed :

"Learned Senior Counsel submitted that since the word  "cruelty" employed therein is a virtual importation of that  word from Section 498-A IPC, the offence envisaged in  Section 306 IPC is capable of enveloping all cases of suicide  within its ambit, including dowry-related suicide. According  to him, the second limb of the Explanation to Section 498-A  which defines the word "cruelty" is sufficient to clarify the  position. That limb reads thus:

"For the purposes of this section, ’cruelty’ means\027                        *              * * (b) harassment of the woman where such harassment is  with a view to coercing her or any person related to her to  meet any unlawful demand for any property or valuable  security or is on account of failure by her or any person  related to her to meet such demand."  At the first blush we thought that there was force in the  said contention but on a deeper analysis we found that the  contention is unacceptable. Section 306 IPC when read with  Section 113-A of the Evidence Act has only enabled the  court to punish a husband or his relative who subjected a  woman to cruelty (as envisaged in Section 498-A IPC) if  such woman committed suicide within 7 years of her  marriage. It is immaterial for Section 306 IPC whether the  cruelty or harassment was caused "soon before her death" or  earlier. If it was caused "soon before her death" the special  provision in Section 304-B IPC would be invocable,  otherwise resort can be made to Section 306 IPC."

 The ingredients of Section 306 and Section 304-B are different and  distinct.  In any event, no evidence has been brought on record to show that  there has been any act of omission or commission on the part of the accused,  before the death of the deceased to demonstrate that the appellant was  responsible for the same.  We have noticed hereinbefore that the High Court, for  the first time, in its judgment on a hypothesis observed that when her father  came to see her, he must have been insulted or felt hurt as she might have been  subjected to harassment.  Unfortunately, no  evidence whatsoever has been  brought to our notice to enable us to sustain the said finding and in that view of  the matter we  are unable to accept the submissions of the learned counsel  appearing for the Respondent State.            For the reasons aforementioned, we are of the opinion that the  impugned judgment of the High Court cannot be sustained which is set aside  accordingly.                    The appeal is allowed.  The Appellant is on bail.  He is discharged  from his bail bonds.+ 1 20471 2005