Gurdeep Singh Vs.
State of Punjab & Ors.
O R D E R
1.
This
appeal arises out of the following facts:
1.1.
The
appellant Gurdeep Singh was the husband of the deceased Rajender Kaur. The
couple had got married on the 14th of October, 1989 and it is the case of the prosecution
that a substantial amount of money far beyond the means of the bride's family
had been spent at that time though the appellant, his parents, sisters and other
relatives remained dissatisfied. It appears that the demands for dowry
continued unabated and about one year before the death the appellant demanded a
sum of `25,000/- for the purchase of a motorcycle, and this amount was indeed
handed over to the appellant but was utilised for purchasing a plot instead.
It is further the
prosecution story that despite having received the aforesaid amount, the
deceased continued to suffer at the hands of her husband and his relatives and that
despite the efforts of a panchayat in the matter no suitable result followed. It
is further the prosecution story that the appellant and his relatives
administered poison to Rajinder Kaur on the 27th July, 1995 which caused her death
and that three days thereafter information was received by Gurdev Singh P.W. 2,
her brother, and Satnam Singh, P.W. 3 her father on which they alongwith others
rushed to the matrimonial home of Rajinder Kaur but found that the dead body had
been hurriedly cremated. Gurdev Singh P.W.2 thereupon gave an application
Exhibit PB to the Station House Officer, Police Station, Gidderbaha and on its basis
a daily diary entry was recorded and after a preliminary probe, a First Information
Report for offences punishable under Section 304B and 498A IPC was registered on
the 8th August, 1995.
After investigation,
Gurdeep Singh, the appellant herein, his brothers, Harbhajan Singh and Daljit Singh,
parents, Jit Singh and Satnam Kaur, and sisters Darshan Kaur and Daljit Kaur were
brought to trial for the aforesaid offences. The trial court vide its judgment dated
15th July, 2000, found the charge under Section 304B proved against the appellant,
Jit Singh and Satnam Kaur and the three were, accordingly, sentenced to undergo
rigorous imprisonment for ten years. The trial court, however, gave the benefit
of doubt to Harbhajan Singh, Daljit Singh, Darshan Kaur and Daljit Kaur and acquitted
them of the charge. The matter was thereafter taken in appeal by the convicted accused,
and the High Court, has, by the impugned judgment dismissed the appeal of Gurdeep
Singh and allowed the appeal of Jit Singh and Satnam Kaur. The solitary
appellant now before us is Gurdeep Singh.
2.
Mr.
Sudhir Walia, the learned counsel for the appellant has raised several
arguments before us during the course of the hearing. He has first pointed out that
the presumption under Section 113B of the Indian Evidence Act could be drawn with
respect to a dowry death only if the ingredients of Section 304B of the Indian
Penal Code were spelt out and in the light of the uncertain evidence that had come
on record, more particularly, as there was no evidence of an unnatural death or
demands being made for dowry or other articles soon before the death, the said provision
was inapplicable.
It has also been pointed
out that the prosecution story that `25,000/- had been spent to buy a plot was on
the face of it wrong in the light of the documentary evidence proved by D.W. 2 Ram
Chand, an employee of the bank who deposed to the effect that a sum of
`93,000/- had been withdrawn from the bank on the 27th of July, 1994, and the statement
of DW 4- Pushpinder Singh, Junior Assistant, Tehsil Office, Gidderbaha from the
Sub-Registrar's office who deposed that a sale deed for a plot priced at
`54,000/- had been executed and as such the facts indicated that the entire amount
for the sale had come from the account of Gurdeep Singh the appellant herein. He
has, accordingly, pointed out that there was no evidence with respect to any demand
being made soon before the death.
The learned counsel
has also placed reliance on a judgment of this Court in Suresh Kumar Singh v. State
of Uttar Pradesh (2009) 17 SCC 243. He has, in addition, argued that the
prosecution story that P.W. 2, P.W. 3 and other relatives had not been called to
attend the cremation was in clear contradiction vis-a-vis their statements recorded
under Section 161 Cr.P.C. and the evidence in Court and that this contradiction
had been pointed out during the course of the cross examination. In the alternative,
it has been submitted that assuming for a moment that no statements of P.Ws. 2 and
under Section 161 Cr.P.C. had been recorded, as deposed by them in their
evidence, the prosecution would still not gain any advantage as a statement
recorded in Court for the first time would have very limited evidentiary value.
3.
Mr.
Kuldip Singh, learned counsel for the State has, however, supported the
judgment of the trial court and the High Court and has submitted that as the deceased
was a young woman,a presumption had to be drawn that she had died an unnatural death
and as such the provisions of Section 113B of the Evidence Act would be applicable
to the facts of the case.
4.
We
have heard the learned counsel very carefully and have gone through the record.
5.
We
first find that the evidence with respect to the appellant Gurdeep Singh is almost
identical with that of the six accused who have been acquitted of the same charge
- two by the High Court and four by the trial court and he appears to have been
singled out as being the husband. We first take up the argument relating to
Section 304B and the presumption drawn under Section 113B. A bare reading of Section
304B pre- supposes several factors for its applicability, they being:-
i.
death
should be of burns or bodily injury or has occurred otherwise than under normal
circumstances:
ii.
within
seven years of the marriage; and
iii.
that
soon before her death she had been subjected to cruelty or harrassment by her husband
or her relatives.
This Court in Suresh
Kumar Singh's case supra has held that even if one of the ingredients is not made
out, the presumption under Section 113B of the Evidence Act would not be
available to the prosecution and the onus would not shift to the defence.
6.
We
find in the present case that there is no evidence of unnatural death. It is the
prosecution story that the deceased had been poisoned. It has, however, come in
the evidence, and in particular, in the report of the Forensic Science Laboratory
dated 21st August, 1995, that on an analysis of the bones and ashes no
poisonous substance had been found to be present. In this view of the matter,
the mere fact that the deceased happened to be a young woman would not lead to the
inference that she had died an unnatural death.
Likewise, we find
that the evidence of demand for dowry or goods soon before death is also
lacking. Admittedly, the only evidence of any demand was of Rs. 25,000/- made one
year prior to the incident and as per the defence evidence of D.W. 2 and D.W. 4,
the money for the execution of the sale deed had been taken out from the bank a
day earlier. In the light of these two factors it has been held in paragraph 25
of the above cited case as under: Indisputably, in order to attract Section
304B, it is imperative on the part the prosecution to establish that the cruelty
or harassment has been meted out to the deceased `soon before her death'.
There cannot be any
doubt or dispute that it is a flexible term. Its application would depend upon the
factual matrix obtaining in a particular case. No fixed period can be indicated
therefor. It, however, must undergo the test known as `proximity test'. What, however,
is necessary for the prosecution is to bring on record that the dowry demand was
not too late and not too stale before the death of the victim."
7.
We,
therefore, find that evidence clearly fails the proximity test as laid down in the
aforesaid judgment.
8.
The
courts below have, however, drawn a presumption against the accused primarily on
the plea that they had not informed the parents of the deceased that she had died
and had hurriedly cremated her dead body. We further see from the evidence of
P.Ws. 2 and 3 that in their statements recorded in Court they did say that they
had received no information about the death on which they had been confronted with
their statements recorded under Section 161 of the Cr.P.C. in which they had stated
that they had indeed been present when the cremation had taken place. In order to
explain this contradiction both these witnesses disowned their 161 statements and
testified that they had not made any statement to the police.
These statements are,
however, falsified by the evidence of P.W. 4 ASI Gurmel Singh, the police officer
concerned, who deposed that the police statements had been recorded by him as per
the dictates of the two witnesses. In the alternative, even assuming that no
statements of P.Ws. 2 and 3 had been recorded under Section 161 Cr.P.C. this factor
destroys the substratum of the prosecution story in a far greater measure as it
must then be taken that their statements were being recorded for the first time
in Court which would rob them of much of their evidentiary value. In this case,
we find that the two witnesses are none other than the brother and the father
of the deceased.
9.
We
are, therefore, of the opinion that as a result of the cumulative discussion
above, the appellant has to succeed. We, accordingly, allow this appeal, set aside
the judgments of the courts below insofar as he is concerned and order his acquittal.
Bail bonds stand discharged.
.....................J.
[HARJIT SINGH BEDI]
.....................J.
[GYAN SUDHA MISRA]
NEW
DELHI
AUGUST
25, 2011.
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