Tarsem Singh Vs.
State of Punjab [2008] INSC 2159 (12 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 476 OF 2005 TARSEM
SINGH ... APPELLANT Versus
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 2 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.
3 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.
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 5 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 6 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.
7 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 8 (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".
9 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 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.
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 12 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 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 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 15
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.
16 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:
17 "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) 18 "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 19 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."
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;
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