REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 476 OF 2005

TARSEM SINGH … APPELLANT

Versus

STATE OF PUNJAB … RESPONDENT

J U D G M E N T

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

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.

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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.

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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

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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

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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.

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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

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(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".

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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

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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.

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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

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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

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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

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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

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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.

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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:

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“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)

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"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

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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.”

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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;

December 12, 2008

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