TARSEM SINGH versus STATE OF PUNJAB

-

. ~

j

-,..

-.(

[2008] 17 S.C.R. 379

TARSEM SINGH v. STATE OF PUNJAB (Criminal Appeal No. 476 of 2005)

DECEMBER 12, 2008

A

8

[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Penal Code, 1860: s.3048 - Conviction under - Held: In the absence of proof that any demand of dowry was made soon before the death of the deceased, the conviction is not c proper - Evidence Act, 1872 - s. 1138.

Prosecution case was that the deceased-wife was tortured on account of bringing insufficient dowry and not bearing a child. Deceased was mostly residing with her parents. Appellant was employed in Army. A few days 0 prior to the date of occurrence, appellant-husband wrote letters to his father and brother showing his unwillingness to keep the deceased with him. It was also stated in the letters that during his visit to the village upon obtaining leave, deceased should come herself or her parents must get her there. Ten days prior to the date of occurrence, deceased came to her parents house and disclosed that appellant wrote to his parents asking them to turn her out of the house or he would kill her. However as the appellant was to come home on leave, father of the appellant came to her parents house and asked them to F allow deceased to go with him. An apprehension was expressed by PW-5, mother of the deceased in regard to the said letter. She insisted that she would send deceased only with the appellant. However on assurance of father of appellant that no such threatening letter was received G and that he treated the deceased as his own daughter, she was allowed to go with him. After few days, when brother of the deceased went to enquire about the welfare of deceased, he came back and i.nformed that deceased

E

I

379

H

380

SUPREME COURT REPORTS

[2008] 17 S.C.R.

A was murdered by her iri-laws. An FIR was lodged against ·

the appellant, his sisters and cousin. The charge was framed under s.302 IPC and in aifternative under s.3048 IPC. Trial court convicted all the accused persons under s.3048 IPC. High Court, however while dismissing the B appeal filed by appell.ant, recorded a judgment of

acquittal in favour of other accm~ed.

In the instant appeal, it was contended for the appellant that courts below erred in passing judgment of conviction and sentence against appellant as the c prosecution was not able· to show that any dowry was demanded soon before the commission of offence.

•

Allowing the appeal, the Court·~ ..

I

HELD: 1. It is not in dispute ;that death of deceased took place due to consumption 'of organo phosphorus D compound. Endocel, which is an insecticide of the chloroco compound group, was; recovered. DW-1, who examined the deceased before heir death, found her to be suffering from pain in her ches,t and breathlessness. According to him, she was suffering from pneumonia. E Some medicines were allegedly prescribed for the said disease. Whether any medicine was administered to her or not is not clear. The materials on record are not sufficient to bring home the cha~ges under s.3048 IPC. [Paras 8 and .9) [385-0-F]

F

2. As per the definition of "c1owry death" in s.3048 IPC and the wording in the presumptive provision of s.1138 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 G dowry". Presumption in terms of s.1138 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 FIR lodged by PW- 5 emphasized on two reasons of ~arassment, namely, (1) H previously on the pretext of bringing in insufficient dowry,

TARSEM SINGH v. STATE OF PUNJAB

381

and (2) thereafter for not bearing a child. There is, thus, A nothing on record to show that any demand of dowry was made soon before her death. The cause of action for committing the offence appeared to be an ego problem on the part of the appellant, namely, the deceased had not been coming to her matrimonial home on her OWIJ~ while B he had been coming to his home on leave. [Paras 12, 14 and 1S] [387-F-H; 388-F-E]

3. The High Court failed to notice that no evidence was brought on record to show that the cruelty or harassment was meted out to her for bringing insufficient c dowry, in absence whereof the ingredients of s.3048 IPC 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 s. 3048 IPC. [Para 16] [389-F-G]

D

'

'

Hira Lal & Ors. v. State (Govt. of NCT), Delhi (2003) 8 SCC 80; T. Aruntperunjothi v. State through S.H.O. Pondicherry (2006) 9 SCC 467, referred to.

E

4. Respondent 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 s. 302 IPC as the death occurred in/ the matrimonial home. It was a homicidal death. Appellant in a statement undef s.313 Cr.P.C did not make any statement that the deceas~d committed suicide or it was an accidental one. In a case of this nature, even s.106 of the Evidence Act could be brought to use. However, it was not done. Appellant has been convicted G only under s. 3048 IPC. [Para 19] [392-D-E]

F

Harjit Singh v. State of Punjab (2006) 1 SCC 463,

..L

~

-./

referred to.

5. It is true that two injuries were noticed on the

H

e -

.....

~.

~

~

382

SUPREME COURT REPORTS

[2008] 17 S.C.R.

A person of the deceased by the Autopsy Surgeon, but this could have been considered ha~ 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 B offence; If the deceased was forced to take poison, they must have some hand in it. As ttley have been acquitted, it is difficult to come to the conclusion that it was the appellant and the appellant alone who was responsible for her death. [Para 22] [395-E-F]

c

Case Law Reference: referred to referred to referred to

(2003) 8 sec 80 Para 17 (2006) g sec 467 .. Para 18 (2006) 1 sec 463 Para 21 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

I

D No. 476 of 2005.

From the final Judgment and Order dated 16.12.2003 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 369-SB of 1990.

Mahabir Singh, Rakesh Dahiya, Gagan Deep Sharma and

S. Srinivasan for the Appellant.

E

Kuldip Singh and R.K. Pand~ for the Respondent.

The Judgment of the Court was delivered by 5.8. SINHA, J. 1. Appellant was prosecuted for committing F 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. Th~ father of the deceased was working as a Mate in the Canal, Department at Jaura Kathi. They were not in a position to give sufficient dowry to their daughter. At the time of marriag,e, 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.

'G

Allegedly, on the ground that insufficient dowry had been

H

TARSEM SINGH v. STATE OF PUNJAB [S.B. SINHA, J.] 383

brought by the deceased, she was tortured. The harassment A 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 B 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 c

said to pave addressed a few letters, two of which were marked as Exhibit PJ & PH respectively; one of them was in 'Gurumµ,khi' language, the other being in English vernacular.

One letter was addressed by the appellant to his father ancJ another which is in Gurumukhi script was addressed to the 0 brother Jin-law of the deceased. The common thread in both the l~tters appears to .be that the appellant was unwilling to keep the dec~ased with him. It was stated that during his visit she should corhe herself or her parents must get her there.

E.

l'ndisputably 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 a'ppellant, came to her parents' place. When asked to F allow Arnriko to go with him, an apprehension was expressed by PW-5-0ato (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 G no such threatening letter had been received and he treats her as his own daughter, stxe was allowed to go with him. After a few days, Sukhwinder Singh, brother of the deceased was sent to enquire about t_he welfare of Amriko and to find out whether Tarsem Singh had come on leave or not. He left his house at H

•

384

SUPREME COURT REPORTS

[2008] 17 S.C.R.

A 11.00 a.m. but he came back some time thereafter to inform his mother that Amriko had been murqered by her in-laws. At . about 4.00 p.m., a First Information Report (FIR) was lodged . against Parmjit Kaur, Manjit Kaur, sister'.S of appellant, Mohinder Singh, cousin of appellant and Tars~m Singh, appellant.

'

B

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 an_d c 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 D 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 judg'ments of conviction and sentence insofar as they failed to take into consideration that neither in the FIR nor in the evidenc~ of PW-5, any allegation E was made to the effect that any dowry was demanded by the appellant. It was urged that in any yiew 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.

I

F

5. Mr. Kuldip Singh, learned counsel appearing on behalf

of the State, however, supported th~ impugned judgment.

. 6. Before us, the translated version of the FIR has been produced -by Mr. Mahabir Singh to ~how that no allegation as regards demand of dowry had ·been made against the >

G appellant. However, Mr. Kuldip si:ngh contended that upon reading of the FIR in its entirety it would appear that after the 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

H

-

' • •

I

l

TARSEM SINGH v. STATE OF PUNJAB [S.B. SINHA, J.] 385

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:

. 0

"1. Ari abrasion 1 cm x .5 cm present on the left cheek .

On dissection wound was skin deep.

2.

3.

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

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

A

B

c

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

to consumption of organo phosphorus compound. Endocel, which is an 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 heror nbt is not clear. Although there are doubts about the veracity of the said statement, the fact that the appellant anq 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 3048 of the Indian Penal Code.

E.

F

G

r

Section 3048 of the Indian Penal Code reads as under: "3048. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise H

386

SUPREME COURT REPORT$

[2008] 17 S.C.R.

A

B

c

than under normal circumstances within seven years of her marriage and it is shown that sooh before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, o~ 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 sh.'all not be less than seven years but which may extend to imprisonment for life."

D

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 norm$1 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 E of dowry; and (v) such cruelty is shown to have been meted out

'

to the woman soon before her death.

I

Explanation appended to Section 3048 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 ~iven or agreed to be given either directly or indirectly-

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

(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

F

G

H

e

-.r

' '

\..--

"1

.._.

1-

.....

·~

'(

'·

""

.. ~

y

'

,.

,,.;-

TARSEM SINGH v. STATE OF PUNJAB [S.B. SINHA, J.] 387

dower or mahr in the case of persons to whom the Muslim A Personal Law (Shariat) applied."

1

11. Parliament has inserted Section 1138 in the Evidence

Act, which reads as under:

"1138. 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.

8

c

Explanation.-For the purposes of this section "dowry death" shall have the same meaning as in section 3048 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".

D

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 1138 in the Evidence Act has been inserted.

As per the definition of "dowry death" in Section 3048 IPC and the wording in the presumptiveprovision of Section 1138 of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been"soon before her deati1" subjected to cruelty or harassment "for, or in connection with, the demand for dowry".

Presumption in terms of Section 1. 138 is one of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a pr;.:sumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

E

F

G,

H

j

~

388

SUPREME COURT REPORTS

[2008] 17 S.C.R. e

A

B

c

D

(1) Ttie question before the cou.rt must be whether the accused has committed the dowry death of a woman. (This means that tt)e presumption can be raised only if the accused, is being tried for the offence under Section 3041;3 IPC.)

I

(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.

2.

3.

Insufficient dowry;

Inability to bear a child; and

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) E previously on the pretext of bringing in.insufficient dowry, and

(2) thereafter for not bearing a child.

I

15. There is, thus, nothing. on r~cord 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 F 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:

I

.

G

H

"It is proved from the evidence of PW-1 Dr. Manjit Singh that the death ot 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

...

t

~'

':'

t'

....

...

-1

-'

J

,,..

TARSEM SINGH v. STATE OF PUNJAB [S.B. SINHA, J.]

389

compound group. Thus, this poison has not been A 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. B 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. c Amriko any more. Thus, it was Tarsem Singh, appellant, alone who used to harass her. The other reason must be for har~~sing 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 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 E wanted to keep her."

0

!

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 oJ F Section 3048 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 G for-holding the accused guilty of an offence under Section 3048 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 bf Section 113-8 of the Evidence H

•

'·

390

SUPREME COURT REPORTS

[2008) 17 S.C.R.

A

B

c

D

E

F

G

H

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

TARSEM SINGH v. STATE OF PUNJAB [S.S. SINHA, J.] 391

on dowry demand and the death concerned. If the alleged A 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:

B

"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- C 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. 0 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 49e-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 Ei offences it has to ~e taken that the meaning of "cruelty" or "harassment" is th~ same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B ~t 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 G 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;

F

1

H

392

SUPREME COURT REPORTS

[2008] 17 S.C.R.

presumption arises as 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~hat on the ;materials on record it was possible for the trial ci>ut! as also the High Court to pass a judgment of conviction again~ 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.

.

I

A

B

c

D

E

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 3048 of the Code.

F

20. For the aforementioned wurpose, the learned counsel wants us to invoke Section 386(b)(iii) of the Code of Criminal Procedure, which reads as under:

G

"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, a_nd in case of an appeal under section 377 or section 378, the _ aceused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

H

(a)············

-

,.._

y

'

....

.\..

(

...

-

\

f •

\ •

TARSEM SINGH v. STATE OF PUNJAB [S.B. SINHA, J.] 393

(b) in an appeal from a conviction-

A

(i) .............. .

(ii) .............. . (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but 8 not so as to enhance the same;"

21. In Harjit Singh vs. State of Punjab [(2006) 1 SCC

463), this Court held:

"16. A legal fiction has been created in the said provision to the effect that in the event it is established that soon c 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"

D

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

"17. From a conjoint reading of Section 3048 of the Indian Penal Code and Section 113-B of the Indian Evidence Act, it will be apparent· that a presumption arising thereunder E will operate if the prosecution is able to establish the circumstances as set out in Section 3048 of the Indian Penal Code. xxx

.·. xxx

xxx

. ·~

19. In the case of unnatural death of a married woman as F in a case of this nature, the husband could be prosecuted under Section 302. Section 3048 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 G 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),

"21.Thus, there are three occasions related to dowry. One is before the marriage, second is at the H

394

SUPREME COURT REPORTS

[2008] 17 S.C.R.

A

B

c

D

E

F

G

H

time of marriage and ithe third is "at any time" after the marriage. The thirld occasion may appear to be an unending period. But the crucial words are "iA 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 I 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.

I

22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if ~ection 304B is to be invoked. But it should have happened "soon before her death." The said phrase, no qoubt, 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 exp~ession. 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 stiould, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there ~hould be a perceptible nexus between her d_eath and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her de~th is wide the court would be in a position to gaug;e that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the

e

r-

v

.,.... . '

l.

'

t-

~

• '

<.JI-

.,

mit>

-.....1

) .•

-t

l_

TARSEM SINGH v. STAT~ OF PUNJAB [S.B. SINHA, J.] 395

xxx

court to decide, on the facts and circumstances of A 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 30. The ingredients of Section 306 and Section 3048 are B different and distinct. In ~my 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 c! 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 D 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 El

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.

F

23. For the aforementioned reasons, the impugned judgment cannot be sustained and it is set aside accordingly. G 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.

'

D.G.

Appeal allowed.

H