Baljeet
Singh & Anr Vs. State of Haryana [2004]
Insc 111 (24 February
2004)
N.Santosh
Hegde & B.P.Singh. 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 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 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 (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 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:
"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 "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 "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." 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 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 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.
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