REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 476 OF 2005

TARSEM SINGH      … APPELLANT

Versus

STATE OF PUNJAB                … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Appellant was prosecuted for committing murder of his wife Amriko.

They were married in the year 1983.  Appellant was employed in the Army

as a Naik.  Indisputably, the parents of the deceased came from the lower

strata of the society.  They were very poor.  The father of the deceased was

working as a Mate in the Canal Department at Jaura Kothi.  They were not

in  a  position  to  give  sufficient  dowry to  their  daughter.   At  the time of

marriage, they had given only few items, such as, utensils, beddings, clothes

etc.  After the marriage also, they had not been able to give anything to the

deceased Amriko by way of dowry or otherwise.   

Allegedly, on the ground that insufficient dowry had been brought by

the deceased, she was tortured.  The harassment increased as she was unable

to bear a child.  She used to be thrown out of the house.  However, she used

to be sent back by her parents.  Her visit  to the matrimonial home, when

appellant visited the village upon obtaining leave, was mandatory.  Some

disputes appeared to have arisen as to whether the appellant himself on all

the  occasions  should  visit  her  parents’  house  to  bring  her  back  to  the

matrimonial  home. On most  of  the occasions,  the father  of the  appellant

used to go to their place and bring her back.   

A few days prior to the date of occurrence, appellant is said to have

addressed a few letters,  two of  which were marked as Exhibit  PJ & PH

respectively; one of them was in ‘Gurumukhi’ language, the other being in

English vernacular.    

One letter was addressed by the appellant to his father and another

which is  in Gurumukhi script  was addressed to the brother-in-law of the

deceased.   The common thread  in  both the letters appears  to be that  the

appellant was unwilling to keep the deceased with him.  It was stated that

during his visit she should come herself or her parents must get her there.   

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Indisputably again, the deceased had mostly been residing with her

parents.  Ten days prior to the date of occurrence, the deceased came to her

house and disclosed that Tarsem Singh had written a letter to her parents

asking them to turn her out of the house or otherwise he would kill  her.

However, as appellant was to come home on leave, Harnam Singh, father of

the appellant, came to her parents’ place.  When asked to allow Amriko to

go with her, an apprehension was expressed by PW-5-Dato (mother of the

deceased) in regard to the said letter  and expressed  her  unwillingness  to

allow Amriko to go with him.  She insisted that she would send Amriko

only with Tarsem Singh.  However, on assurance by Harnam Singh that no

such  threatening  letter  had  been  received  and  he  treats  her  as  his  own

daughter, she was allowed to go with him.  After a few days, Sukhwinder

Singh,  brother  of  the  deceased was sent  to  enquire  about  the  welfare  of

Amriko and to find out whether Tarsem Singh had come on leave or not.

He left his house at 11.00 a.m. but he came back some time thereafter to

inform his mother that Amriko had been murdered by her in-laws.  At about

4.00  p.m.,  a  First  Information  Report  (FIR)  was  lodged  against  Parmjit

Kaur,  Manjit   Kaur,  sisters  of  appellant,  Mohinder  Singh,  cousin  of

appellant and Tarsem Singh, appellant.  

2. Before the learned Sessions Judge, charges under Section 302 and in

the alternative under Section 304B of the Indian Penal Code were framed.

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3. All the four accused were found guilty for the offences punishable

under Section 304-B of the Indian Penal Code and convicted by the learned

Sessions  Judge.   The High  Court,  however,  while  dismissing  the  appeal

preferred  by the  appellant  recorded a  judgment  of  acquittal  in  favour  of

Parmjit Kaur, Manjit Kaur and Mohinder Singh.

4. Mr. Mahabir Singh, learned Senior Counsel appearing on behalf of

the appellant would submit that the learned Sessions Judge as also the High

Court  committed  a  serious  error  in  passing  the  impugned  judgments  of

conviction and sentence insofar as they failed to take into consideration that

neither in the FIR nor in the evidence of PW-5, any allegation was made to

the effect that any dowry was demanded by the appellant.  It was urged that

in any view of the matter as the prosecution had not been able to show that

any dowry was demanded soon before the commission of the offence, the

impugned judgment is liable to be set aside.   

5. Mr. Kuldip Singh, learned counsel appearing on behalf of the State,

however, supported the impugned judgment.  

6. Before us, the translated version of the FIR has been produced by Mr.

Mahabir Singh to show that no allegation as regards demand of dowry had

been made against the appellant.   However, Mr. Kuldip Singh contended

that upon reading of the FIR in its entirety it  would appear that after the

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name of Tarsem Singh, the names of his parents, namely, Harnam Singh and

Parsin Kaur had been mentioned and, thus, it is clear that all of them had

been  ill-treating  Amriko  for  non-bringing  of  sufficient  dowry  and  not

bearing a child.  The learned counsel appears to be correct.

7. It is, therefore, not correct to contend that FIR does not contain any

statement  of  cruelty  or  harassment  of  the  deceased  for  non-bringing  of

dowry.  The marriage took place in the year 1983.  The occurrence took

place on 18.3.1987.  The dead body was found in the matrimonial home of

the deceased.  

The  post-mortem  report  showed  that  the  following  injuries  were

noticed on the person of the deceased:

“1. An abrasion 1 cm x .5 cm present on the left cheek.  On dissection wound was skin deep.

2. A bluish contusion 3 cm x 2 cm present on the back of left wrist joint.”

3. On dissection underlying skin and muscles were  normal  and underlying bone was not fractured.”

8. It  is  not  in  dispute  that  death  of  Amriko  took  place  due  to

consumption  of  organo  phosphorus  compound.   Endocel,  which  is  an

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insecticide of the chloroco compound group, was recovered.  It is now not

in dispute that Amriko died of consuming phosphorus compound.   

9. Before embarking on further discussions on this issue, we may place

on record that the appellant examined Niranjan Dass as DW-1, who is said

to  have  examined  the  deceased  before  her  death.  He  found  her  to  be

suffering from pain in her chest and breathlessness.  According to him, she

was suffering from pneumonia.  Some medicines were allegedly prescribed

for the said disease. Whether any medicine was administered to her or not is

not  clear.    Although  there  are  doubts  about  the  veracity  of  the  said

statement,  the  fact  that  the appellant  and  his  family tried  to  conceal  the

reason for the death of the deceased is of some significance.  

10. The materials on record are not sufficient to bring home the charges

under Section 304B of the Indian Penal Code.   

Section 304B 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.

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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.”

The essential ingredients of the said offence are: (i) death of a woman

must  have  been  caused  by any burns  or  bodily  injury  or  otherwise  than

under normal circumstances; (ii) such death must have been occurred within

seven years of  marriage (iii)  soon before her  death she was subjected  to

cruelty or harassment by her husband or relative of her husband; (iv) such

cruelty or harassment must be in connection with the demand of dowry; and

(v) such cruelty is shown to have been meted out to the woman soon before

her death.

Explanation  appended  to  Section  304B defines  dowry to  have  the

same meaning  as  contained  in  Section  2  of  the  Dowry Prohibition  Act,

1961, which reads as under:

“2. Definition of ‘dowry’.-  In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or  

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(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,  

at  or  before  or  any  time  after  the  marriage  in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons  to  whom  the  Muslim  Personal  Law (Shariat) applied.”

11. Parliament  has  inserted  Section  113B  in  the  Evidence  Act,  which

reads as under:  

“113B. 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 has 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  304B  of  the  Indian  Penal  Code  (45  of 1860)”

12. The  necessity  for  insertion  of  the  two  provisions  has  been  amply

stated by the Law Commission of India in its 21st Report dated 10-8-1988

on "Dowry Deaths and Law Reform".  

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Keeping in view the impediments in the pre- existing law in securing

evidence  to  prove  dowry-related  deaths,  the  Parliament  in  its  wisdom

thought  to  insert  a  provision  relating  to  presumption  of  dowry death  on

proof of certain essentials.  

It is in this background that a provision of presumptive evidence by

way of Section 113B in the Evidence Act has been inserted.  

As per the definition of "dowry death" in Section 304B IPC and the

wording in the presumptive provision of Section 113B of the Evidence Act,

one of the essential ingredients, amongst others, is that the ‘woman’ must

have been "soon before her death" subjected to cruelty or harassment "for,

or in connection with, the demand for dowry".  

Presumption in terms of Section 113B is one of law. On proof of the

essentials mentioned therein, it becomes obligatory on the court to raise a

presumption  that  the  accused  caused  the  dowry  death.  The  presumption

shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has

committed the dowry death of a woman. (This means that the

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presumption can be raised only if the accused is being tried for

the offence under Section 304B IPC.)

(2) The  woman  was  subjected  to  cruelty  or  harassment  by  her

husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with, any

demand for dowry.

(4) Such cruelty or harassment was soon before her death.

13. Harassment caused to the deceased was on three counts:

1. Insufficient dowry;

2. Inability to bear a child; and  

3. Insistence by her parents that every time appellant must go to

her parents’ house for bringing her back.

14. It  appears  that  FIR (Exhibit-PF/2)  lodged  by PW-5 emphasizes  on

two reasons of harassment, namely, (1) previously on the pretext of bringing

in insufficient dowry, and (2) thereafter for not bearing a child.  

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15. There is, thus, nothing on record to show that any demand of dowry

was made soon before her death.  The cause of action for committing the

offence appears to be an ego problem on the part of the appellant, namely,

the deceased had not been coming to her matrimonial home on her own,

while he had been coming  to his home on leave.   

The High Court also in its judgment recorded:

“It  is  proved  from  the  evidence  of  PW-1  Dr. Manjit Singh that the death of Amriko had taken place due to consumption of Organo Phosphorus Compound.  The prosecution has led evidence to prove that Endocel was got recovered by Parmjit Kaur, appellant, by making a disclosure statement. According  to  the  Chemical  report,  Ex.  PN, Endocel  is  an  insecticide  of  the  chloroco compound group.  Thus, this poison has not been consumed by Smt. Amriko and as such, it cannot be said that Parmjit Kaur or other appellants had given this  poison forcibly to  Smt. Amriko.   The evidence shows that  Smt. Amriko used to  reside most  of  the  time with  her  mother  and whenever Tarsem Singh visited his house on leave from the Army, then he used to take Amriko from the house of her mother to the matrimonial home.  The letter, Ex. PH, shows that Tarsem Singh was aggrieved of the fact that he had to go to take Amriko from the house of her mother.  He had also made clear that  he  would  not  keep  Smt.  Amriko  any more. Thus, it  was Tarsem Singh, appellant, alone who used to harass her. The other reason must be for harassing her was that she was not able to bear a child.

The statements of PW-5 Smt. Dato and PW- 7  Sukhwinder  Singh  show  that  they  have  not

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stated  in  their  police  statements  specifically  that the appellants except Tarsem Singh used to harass her on account of dowry or that she was unable to bear a  child.   The very fact  that  Harnam Singh, father  of  Tarsem Singh,  had  taken  her  from the house of her mother about 8-10 days prior to the arrival  of  Tarsem Singh suggests  that  parents  of Tarsem Singh wanted to keep her.”

16. What the High Court failed to notice in arriving at the said findings is

that  no  evidence  was  brought  on  record  to  show  that  the  cruelty  or

harassment was meted out to her for bringing insufficient dowry, in absence

whereof the ingredients of Section 304B of the Indian Penal Code cannot be

said to have been proved.  The legal fiction sought to be created must be

raised  only  on  fulfillment  of  the  conditions  precedent  therefor.   All  the

requisite  ingredients  of  the  offence  must  be  brought  home  before  the

presumptive evidence  is  put  to  use  by the court  for  holding  the accused

guilty of an offence under Section 304B of the Indian Penal Code.

17. In Hira Lal & Ors. v. State (Govt. of NCT), Delhi [(2003) 8 SCC 80],

this Court held:

“9. A conjoint  reading  of  Section  113-B of  the Evidence Act and Section 304-B IPC 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

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otherwise  than  in  normal  circumstances”.  The expression  “soon before”  is  very relevant  where Section  113-B of  the  Evidence  Act  and  Section 304-B  IPC  are  pressed  into  service.  The prosecution is obliged to show that soon before the occurrence  there  was  cruelty  or  harassment  and only in that case presumption operates. Evidence in  that  regard  has  to  be  led  by the  prosecution. “Soon  before”  is  a  relative  term  and  it  would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would  constitute  a  period  of  soon  before  the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under  Section  113-B  of  the  Evidence  Act.  The expression  “soon  before  her  death”  used  in  the substantive Section 304-B IPC and Section 113-B of  the  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

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the  woman  concerned,  it  would  be  of  no consequence.”

It was furthermore held:

“Consequences of cruelty which are likely to drive a  woman  to  commit  suicide  or  to  cause  grave injury or  danger  to  life,  limb or  health,  whether mental or physical of the woman are required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive  Section  498-A IPC and  presumptive Section  113-B  of  the  Evidence  Act  have  been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983.  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  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 of 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.  A  person  charged and  acquitted  under  Section  304-B  can  be convicted  under  Section  498-A  without  that charge being there, if such a case is made out. If the case is established, there can be a conviction under  both  the  sections  (See  Akula  Ravinder v. State  of  A.P. (1991  Supp.  (2)  SCC 99).  Section 498-A IPC and Section 113-A of the Evidence Act include in their  amplitude past  events  of cruelty. Period  of  operation  of  Section  113-A  of  the Evidence Act is seven years; presumption arises as

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to dowry death when a woman committed suicide within a  period  of  seven  years  from the  date  of marriage.

18. In T. Aruntperunjothi vs. State through S.H.O. Pondicherry [2006 (9)

SCC 467], this Court held:

“37. It, therefore, appears that no cogent evidence had been adduced by the prosecution to establish that  the  appellant  had  demanded  any  dowry.  It would bear repetition to state that according to the mother  of  the  deceased,  PW-7  only  PW-3 demanded dowry and only he was responsible for the death of her daughter. If that be so, he should have also been prosecuted.”

19. Mr.  Kuldip  Singh,  however,  in  our  opinion,  might  be  right  in

contending that on the materials on record it was possible for the trial court

as  also  the  High  Court  to  pass  a  judgment  of  conviction  against  the

appellant under Section 302 of the Indian Penal Code as the death occurred

in  the  matrimonial  home.   It  was  a  homicidal  death.   Appellant  in  a

statement  under  Section  313  of  the  Code of  Criminal  Procedure did  not

make  any  statement  that  the  deceased  committed  suicide  or  it  was  an

accidental one.   

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In a case of this nature, even Section 106 of the Indian Evidence Act

could be brought to use.  However, it was not done.  Appellant has been

convicted only under Section 304B of the Code.   

20. For  the  aforementioned  purpose,  the  learned  counsel  wants  us  to

invoke Section 386(b)(iii) of the Code of Criminal Procedure, which reads

as under:

“386  - Powers  of  the  Appellate  Court.-  After perusing such record and hearing the appellant or his  pleader,  if  he  appears,  and  the  Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he  appears,  the  Appellate  Court  may,  if  it considers  that  there  is  no  sufficient  ground  for interfering, dismiss the appeal, or may—

(a) …………

(b) in an appeal from a conviction—

(i) ……………

(ii) ……………

(iii) with or without altering the finding, alter the nature or the extent,  or the nature and extent,  of the sentence, but not so as to enhance the same;”

21. In  Harjit Singh  vs.  State of Punjab  [(2006) 1 SCC 463], this Court

held:

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“16.  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”

Noticing the provisions of Section 113-B of the Evidence Act, it was

opined:

“17. From a conjoint reading of Section 304B 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 circumstances as  set  out  in  Section  304B  of  the  Indian  Penal Code.

xxx xxx xxx

19.  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 304B 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  and  Ors. v.  State  of  Punjab  and  Anr., [(2001) 8 SCC 633], wherein it was held : (SCC p. 643, paras 21-22)

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"21.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 304B should be any property or valuable  security  given or  agreed to  be given in connection with the marriage.

22. It is not enough that harassment or cruelty was caused to the woman with a demand  for  dowry  at  some  time,  if Section  304B  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

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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 wide 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"."

xxx xxx xxx

30.  The  ingredients  of  Section  306  and  Section 304B 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.”

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22. It is true that two injuries were noticed on the person of the deceased

by the Autopsy Surgeon, but we could have considered this aspect of the

matter had the appellant been not the only accused.  The FIR was lodged

against  others  also.   Three more persons  being sisters  and cousin  of  the

appellant  were  also  charged  for  commission  of  the  said  offence.   If  the

deceased was forced to take poison, they must have some hand in it.  As

they have been acquitted, it is difficult for us to come to the conclusion that

it  was the appellant  and the appellant  alone who was responsible for her

death.     

23. For the  aforementioned reasons,  the impugned judgment  cannot  be

sustained  and  it  is  set  aside  accordingly.   The  appeal  is  allowed.  The

appellant  who  is  in  custody is  directed  to  be  set  at  liberty  and released

forthwith unless wanted in connection with any other case.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 12, 2008

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