GURMEET SINGH versus STATE OF PUNJAB

[2021] 7 S.C.R. 153

GURMEET SINGH

STATE OF PUNJAB

(Criminal Appeal No. 1731 of 2010)

MAY 28, 2021

[N. V. RAMANA, CJI, SURYA KANT ANDANIRUDDHA BOSE, JJ.]

Penal Code, 1860 – s.304-B – Death of married woman aftershe consumed poison in her matrimonial home – Conviction ofappellant-husband by Courts below – Challenge to – Held: On facts,not acceptable – Death was caused within seven years of marriagein “otherwise than under normal circumstances” – Consistent andconfidence inspiring testimony of deceased’s father (PW4) aboutcontinuing harassment meted out to deceased on account of dowry– Prosecution having satisfied the necessary ingredients u/s.304BIPC, the presumption u/s.113-B, Evidence Act took full effect, whichwas not rebutted by the appellant – Courts below did not err inconvicting appellant u/s.304-B, IPC as appellant failed to dischargethe burden u.s.113-B, Evidence Act – Evidence Act, 1872 – s.113B.

Penal Code, 1860 – ss. 304B and 498A – Plea that convictionu/s.304B cannot be sustained without any charges u/s. 498A – Held:Is not tenable – Offences u/s.498A and s.304B, IPC are distinct innature – Although cruelty is common thread existing in both theoffences, however the ingredients of each offence are distinct andmust be proved separately by the prosecution – If case is madeout, there can be conviction under both the sections.

Penal Code, 1860 – s.304-B – Conviction under – Necessaryingredients –Ingredient as to existence of dowry demand “soon beforeher death” – Interpretation of – Held: The expression “soon before”cannot be interpreted to mean “immediately before”, rather theprosecution has to show that there existed “proximate and livelink” between the cruelty and the consequential death of the victim– Words and Phrases – Expressions “soon before”, “immediatelybefore” and “proximate and live link”.

APenal Code, 1860 – s.304-B – Guidelines issued by SupremeCourt in Satbir Singh case relating to trial u/s.304B – Re-iterated.

Evidence Act, 1872 – s.113B – Presumption of causation –Held: Once the necessary ingredients u/s.304-B, IPC stand satisfied,a presumption of causation arises against the accused u/s.113-B,BEvidence Act and the accused has to rebut this statutory presumption– Penal Code, 1860 – s.304B.

Dismissing the appeal, the Court

HELD : 1.1. Section 304-B(1), IPC defines ‘dowry death’of woman. It provides that ‘dowry death’ is where death of aCwoman is caused by burning or bodily injuries or occurs otherwisethan under normal circumstances, within seven years of marriage,and it is shown that soon before her death, she was subjected tocruelty or harassment by her husband or any relative of herhusband, in connection with demand for dowry. Further, SectionD304-B(2), IPC provides punishment for the aforesaid offence.[Para 9][159-D-F]

1.2. In the present case, admittedly, the marriage betweenthe deceased and the accused-appellant took place on 23.11.2004,and the death of the deceased occurred in 2008 after she consumedEpoison in her matrimonial home. Therefore, the first twoingredients as to death under otherwise than ‘normalcircumstances’ within seven years of marriage stand satisfied.[Para 10][160-C-D]

1.3. The next important ingredient which needs to beFestablished is the existence of dowry demand “soon before herdeath”. This court in catena of judgments have held that, “soonbefore” cannot be interpreted to mean “immediately before”,rather the prosecution has to show that there existed “proximateand live link” between the cruelty and the consequential death ofthe victim. [Para 11][160-D-E]

1.4. PW4 (Complainant), the father of the deceased, hasclearly stated that after the marriage the deceased hadtelephonically informed him about the consistent demand of caror equivalent cash by the accused. In 2007, when the complainant

visited India, the deceased had also expressed her unhappinessdue to constant harassment. Moreover, when he returned to thecountry in July, 2008, the deceased had reiterated the factum ofdemands before him. The complainant also stated as to how thefamilies attempted to mediate the dispute themselves and onmultiple occasions he gave certain gifts to the appellant and hisfamily to ameliorate the situation. Another important circumstanceis that the mother of the deceased had informed the father 15-20days prior to the incident about the continuing harassment of thedeceased on account of dowry. [Para 12][160-F-H]

1.5. Both the Trial Court and the High Court found theevidence of P.W.4 to be reliable and consistent despite thoroughcross-examination. No evidence was produced by the appellantto disregard the aforesaid testimony. The testimony of PW4 isfound to be consistent and inspiring confidence by this Court aswell. Taking into account the evidence on record, particularly thetestimony of PW4, it is clear that the prosecution has proved thenecessary ingredients under s.304-B, IPC against the accused-appellant. [Para 13][161-A-C]

2. Now, that necessary ingredients under s.304-B, IPCstands satisfied, presumption of causation arises against theaccused under s.113-B, Evidence Act and the accused has to rebutthis statutory presumption. [Para 14][161-C-D]

3. The defence of the accused that his family and family ofthe deceased shared cordial relationship, and in fact, theappellant had helped the mother of deceased in getting treatmentof cancer, merits rejection as being untenable. The Trial Courtconcluded that the accused-appellant, who was working as atechnician in hospital, has forged the hospital records to provethe existence of cordial relationship between the families of thedeceased and the accused. The conclusion reached by the TrialCourt is based on detailed analysis of the evidence on record,and does not warrant any interference. The appellant has notbrought to attention any material to suggest that the above findingof the Trial Court was perverse or without any basis. [Paras 15,16][161-D-E, 162-D]

A4. The next submission of the appellant was that thedeceased was suffering from depression owing to the health ofher mother. However, no evidence has been produced on recordby the appellant to indicate that the deceased was depressed dueto the alleged poor health condition of her mother. In fact, noevidence was produced to even show that her mother’s healthBwas deteriorating. [Para 17][162-E-F]

5. The prosecution having satisfied the necessaryingredients under Section 304B of IPC, the presumption underSection 113-B, Evidence Act takes full effect in this particularcase, which has not been rebutted by the accused-appellant. TheCappellant has failed to make out case for interference with theconcurrent opinions of the Courts below, convicting the accused-appellant under Section 304-B, IPC. [Para 18][162-F-G]

6. The plea that without any charges under s. 498A, IPC aconviction under s. 304-B, IPC cannot be sustained, is not tenable,Das the offences under s. 498-A and s. 304-B, IPC are distinct innature. Although cruelty is common thread existing in both theoffences, however the ingredients of each offence are distinct andmust be proved separately by the prosecution. If case is madeout, there can be conviction under both the sections. [Paras 19,E20][162-G-H; 163-D-E]

7. After perusing the relevant material and the evidenceavailable, it is found that the High Court and trial court have notcommitted any error in convicting the appellant under s. 304-B,IPC as the appellant failed to discharge the burden under s. 113-FB, Evidence Act. [Para 22][164-H; 165-A]

Satbir Singh v. State of Haryana 2021 AIR 2627;Kamesh Panjiyar v. State of Bihar [2005] 1 SCR 903;Kans Raj v. State of Punjab, [2000] 3 SCR 662; RajinderSingh v. State of Punjab, [2015] 2 SCR 835 – reliedGon.

Case Law Reference

2021 AIR 2627relied onPara 9[2000] 3 SCR 662relied onPara 11

[2015] 2 SCR 835relied onPara 11[2005] 1 SCR 903relied onPara 19

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

1731 of 2010

From the Judgment and Order dated 15.03.2010 of the High Courtof Punjab & Haryana at Chandigarh in Crl. Appeal No. 2298-SB of2009.

Rishi Malhotra, Adv. for the Appellant.

Ms. Jaspreet Gogia, Karanvir Gogia, Ms. Shivangi Singhal, Advs.for the Respondent.

The Judgment of the Court was delivered by

N. V. RAMANA, CJI

1. The present appeal arises out of the impugned judgment dated15.03.2010 passed by the High Court of Punjab and Haryana atChandigarh in Criminal Appeal No. 2298-SB of 2009, wherein the HighCourt dismissed the appeal preferred by the appellant herein and upheldthe order of the Trial Court convicting him under Section 304-B, IPC andsentencing him to undergo rigorous imprisonment for seven years and afine of Rs.5000/-.

2. The facts as per the prosecution are as follows: the deceased,daughter of the complainant was engaged to the appellant in 2004.Subsequent to the engagement, the complainant left for Abu Dhabi inApril, 2004 and in his absence the marriage between the appellant andthe deceased was solemnized on 23.11.2004.In 2006, child was bornout of the wedlock. When the complainant returned from abroad in 2007,the deceased informed him that the mother-in-law, father-in-law and theappellant-husband used to physically assault her pursuant to the demandof dowry. Allegedly, the complainant gave gold chain to the accusedpersons. The complainant thereafter went abroad and returned to Indiaon 21.07.2008. The deceased further disclosed that her in-laws weredemanding money for the purchase of car. However, this time, thecomplainant failed to fulfill the demand.

3. On 08.08.2008, the father-in-law of the deceased informed thecomplainant that the deceased has consumed poison and lost herconsciousness and was being taken to the hospital. Upon reaching the

Ahospital, the complainant found his daughter to be unconscious. Laterthat day she died.

4. The Trial Court, vide order dated 03.09.2009 convicted theappellant-husband, father-in-law and mother-in-law for the offence underSection 304-B and sentenced them to undergo rigorous imprisonment forBseven years each and fine of Rs.5000/- each. In default of payment offine, the accused persons were directed to undergo rigorous imprisonmentfor one year each.

5. Aggrieved, the accused persons approached the High Court inappeal. Vide impugned judgment dated 15.03.2010, the High CourtCacquitted the father-in-law and the mother-in-law, but upheld the orderof 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 arguedDthat the Courts below have, as matter of routine, applied the presumptionu/s 113B of Evidence Act in the instant case wherein even the basic andessential ingredient of Section 304-B, IPC are not satisfied. It wassubmitted that just because the death of the deceased occurred withinseven years of marriage, by no stretch of imagination can it be said thatthe deceased soon before her death was subjected to cruelty in connectionEwith the demand of dowry. The fact that the deceased was happy withthe appellant is clearly evident as she lived with him and bore his child,and never mentioned any harassment or cruelty being meted out by theappellant. Furthermore, the gifts received by the appellant-husband werevoluntarily given by the complainant and his family. Lastly, without anyFcharges under Section 498A, IPC conviction under Section 304-B,IPC cannot be sustained.

7. On the contrary, the counsel on behalf of the State argued thatit was undeniable that the death in the present case has occurred withinfour years of marriage, under suspicious circumstances i.e., due toGpoisoning. Moreover, fifteen days before the incident, the deceased hadspecifically told her father about the latest demand of money for thepurchase of car. Lastly, it was established before the Courts below thatthe accused had forged the medical records of his mother-in-law to showcordial relationship between the two families. Therefore, owing to all theaforesaid circumstances, the presumption under Section 113B, EvidenceHAct 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, readsas under:

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

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

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

9. Section 304-B(1), IPC defines ‘dowry death’ of woman. Itprovides that ‘dowry death’ is where death of woman is caused byburning or bodily injuries or occurs otherwise than under normalcircumstances, within seven years of marriage, and it is shown that soonbefore her death, she was subjected to cruelty or harassment by herhusband or any relative of her husband, in connection with demand fordowry. Further, Section 304-B(2), IPC provides punishment for theaforesaid offence. This Court, in the recent judgment of Satbir Singh v.State of Haryana, Criminal Appeal Nos. 1735-1736 of 2010 summarisedthe law under Section 304-B, IPC and Section 113B, Evidence Act asunder:

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

ii. The prosecution must at first establish the existence of thenecessary ingredients for constituting an offence under Section304-B, IPC.Once these ingredients are satisfied, the rebuttablepresumption of causality, provided under Section 113-B, EvidenceAct operates against the accused.

Aiii. The phrase “soon before” as appearing in Section 304-B, IPCcannot be construed to mean ‘immediately before’. The prosecutionmust establish existence of “proximate and live link” between thedowry death and cruelty or harassment for dowry demand by thehusband or his relatives.

Biv. Section 304-B, IPC does not take pigeonhole approach incategorizing death as homicidal or suicidal or accidental. The reasonfor such non categorization is due to the fact that death occurring“otherwise than under normal circumstances” can, in cases, behomicidal or suicidal or accidental.”

C10. In the present case, admittedly, the marriage between thedeceased and the accused-appellant took place on 23.11.2004, and thedeath of the deceased occurred in 2008 after she consumed poison inher matrimonial home. Therefore, the first two ingredients as to deathunder otherwise than ‘normal circumstances’ within seven years ofmarriage stand satisfied.D

11. The next important ingredient which needs to established isthe existence of dowry demand “soon before her death”. This Court incatena of judgments have held that, “soon before” cannot be interpretedto mean “immediately before”, rather the prosecution has to show thatthere existed “proximate and live link” between the cruelty and theEconsequential death of the victim.[See Satbir Singh v. State of Haryana(supra); Kans Raj v. State of Punjab, (2000) 5 SCC 207; RajinderSingh 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 thatFafter the marriage the deceased had telephonically informed him aboutthe consistent demand of car or of equivalent cash by the accused. In2007, when this witness visited India, the deceased had also expressedher unhappiness due to the constant harassment. Moreover, when hereturned to the country in July, 2008, the deceased had reiterated thefactum of demands before him. The witness also stated as to how theGfamilies attempted to mediate the dispute themselves and on multipleoccasions the father of deceased gave certain gifts to the accused andhis family to ameliorate the situation. Another important circumstancewhich comes to our attention is that the mother of the deceased hadinformed the father 15-20 days prior to the incident about the continuingHharassment of the deceased on account of dowry. Finally, on 08.08.2008,

the father-in-law of the deceased informed this witness about theconsumption of poison by the deceased.

13. It is necessary to highlight that both the Trial Court and theHigh Court found the above evidence of P.W.4- the father of the deceasedto be reliable and consistent despite thorough cross-examination. Noevidence was produced by the appellant to disregard the aforesaidtestimony. On perusing the testimony of PW4, we are also of theconsidered opinion that the same is consistent and inspires confidence.Taking into account the evidence on record, particularly the testimony ofthe father of the deceased, we are of the opinion that the prosecution hasproved the necessary ingredients under Section 304-B, IPC against theaccused-appellant.

14. Now, that necessary ingredients under Section 304-B, IPCstands satisfied, presumption of causation arises against the accusedunder Section 113-B, Evidence Act and the accused has to rebut thisstatutory presumption.

15. The defence of the accused is that his family and family of thedeceased shared cordial relationship, and in fact, the appellant hadhelped the mother of deceased in getting treatment of cancer. The TrialCourt, after thorough examination of the evidences- both oral anddocumentary, concluded that the accused-appellant, who was workingas technician in hospital, has forged the hospital records to prove theexistence of cordial relationship between the families of the deceasedand the accused. The relevant observations of the Trial Court on thispoint are as follows:

“Gurmeet Singh accused was working as O.T. Technician. GurmitSingh brought Baksho Devi to the hospital and he examined herand given Chemotherapy. He has further stated that photo copyof the entries in the file are Ex.Dl and she was treated upto17.8.2008. This witness in his cross-examination has admitted thatit is correct that in the entries in the file it is not recorded as to whobrought the patient. He has also admitted that remarks column ofEx.Dl is blank and it does not bear his signatures any where. Healso stated that what treatment was to be given is mentioned inthe treatment file. He also stated that patient was also treated byother doctors. So this witness has stated that the patient was treatedupto 17.8.08. Ex.Dl is dated 18.8.08. Admittedly Rama Devi has

Aexpired on 8.8.08. The case against accused Gurmit Singh wasregistered on 9.8.08. As per the statement of PW-11 SI DharamPal, accused Gurmit Singh was arrested in this case on 10.8.08.The personal search memo of the accused is Ex.P- 26, grounds ofarrest memo is Ex.P-27 and ground of information memo is Ex.P-28 which was prepared by him and signed by accused and ASIBSukhdev Singh. So, if the accused was in custody since 10.8.08 tilldate, then how he could take her mother-in-law for treatment beforeDr. K.K. Nayak DW-2 or got her treated from there. So, thedefence evidence appears to have been crated and the same hasbeen manipulated by the accused that he had been getting treatmentCof his mother-in-law to show that his relations were cordial withthe family of the victim or with the victim falls to the ground.”

(emphasis supplied)

16. The aforesaid conclusion reached by the Trial Court is basedon detailed analysis of the evidence on record, and does not warrantDany interference. The appellant has not brought to our attention anymaterial to suggest that the above finding of the Trial Court was perverseor without any basis. Hence, this defence of the appellant merits rejectionas being untenable.

17. The next submission of the appellant was that the deceasedEwas suffering from depression owing to the health of her mother. However,no evidence has been produced on record by the appellant to indicatethat the deceased was depressed due to the alleged poor health conditionof her mother. In fact, no evidence was produced to even show that hermother’s health was deteriorating.F18. Therefore, the prosecution having satisfied the necessaryingredients under Section 304B of IPC, the presumption under Section113-B, Evidence Act takes full effect in this particular case, which hasnot been rebutted by the accused-appellant herein. The appellant hasfailed to make out case for us to interfere in the concurrent opinions ofGthe Courts below, convicting the accused-appellant under Section 304-B,IPC.

19. Lastly, the counsel on behalf of the appellant argued that withoutany charges under Section 498A, IPC conviction under Section 304-B,IPC cannot be sustained. On this aspect this Court in the case of KameshPanjiyar v. State of Bihar, (2005) 2 SCC 388 held as under:H

“12. …….It is to be noted that Sections 304-B and 498-AIPC cannot be held to be mutually inclusive. Theseprovisions deal with two distinct offences.It is true thatcruelty is common essential to both the sections and thathas to be proved. The Explanation to Section 498-A gives themeaning of “cruelty”. In Section 304-B there is no such explanationabout the meaning of “cruelty”. But having regard to the commonbackground to these offences it has to be taken that the meaningof “cruelty” or “harassment” is the same as prescribed in theExplanation to Section 498-A under which “cruelty” by itselfamounts to an offence. Under Section 304-B it is “dowry death”that is punishable and such death should have occurred withinseven years of marriage. No such period is mentioned in Section498-A. If the case is established, there can be conviction underboth the sections.”

(emphasis supplied)

20. Therefore, the argument raised by the counsel on behalf of theappellant cannot be accepted as the offences under Section 498-A andSection 304-B, IPC are distinct in nature. Although cruelty is commonthread existing in both the offences, however the ingredients of eachoffence are distinct and must be proved separately by the prosecution. Ifa case is made out, there can be conviction under both the sections.

21. Before parting with this matter, we are of the opinion that itwould be beneficial to reiterate the guidelines issued by this Court inSatbir Singh v. State of Haryana (supra) relating to trial under Section304-B, IPC:

“v. Due to the precarious nature of Section 304-B, IPC read with113-B, Evidence Act, Judges, prosecution and defence should becareful during conduction of trial.

vi.It is matter of grave concern that, often, Trial Courts recordthe statement under Section 313, CrPC in very casual and cursorymanner, without specifically questioning the accused as to hisdefense. It ought to be noted that the examination of an accusedunder Section 313, CrPC cannot be treated as mere proceduralformality, as it based on the fundamental principle of fairness. Thisaforesaid provision incorporates the valuable principle of naturaljustice “audi alteram partem” as it enables the accused to offer

an explanation for the incriminatory material appearing againsthim. Therefore, it imposes an obligation on the court to questionthe accused fairly, with care and caution.

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

viii. Section 232, CrPC provides that, “If, after taking the evidencefor the prosecution, examining the accused and hearing theCprosecution and the defence on the point, the Judge considersthat there is no evidence that the accused committed theoffence, the Judge shall record an order of acquittal”. Suchdiscretion must be utilized by the Trial Courts as an obligation ofbest efforts.

Dix. Once the Trial Court decides that the accused is not eligible tobe acquitted as per the provisions of Section 232, CrPC, it mustmove on and fix hearings specifically for ‘defence evidence’, callingupon the accused to present his defense as per the procedureprovided under Section 233, CrPC, which is also an invaluableright provided to the accused.E

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

Fxi. Apart from the above, the presiding Judge should follow theguidelines laid down by this Court while sentencing and imposingappropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry deathis increasing day by day. However, it is also observed thatsometimes family members of the husband are roped in, even thoughGthey have no active role in commission of the offence and areresiding at distant places. In these cases, the Court need to becautious in its approach.”

22. In light of the above findings, after perusing the relevant materialand the evidence available, we find that the High Court and Trial CourtH

[N. V. RAMANA, CJI]

have not committed any error in convicting the appellant under Section304-B, IPC as the appellant failed to discharge the burden under Section113-B, Evidence Act.The appellant has not brought any material on recordwhich merits the interference of this Court in the impugned judgment.

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

Bibhuti Bhushan Bose

Appeal dismissed.