IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1592 OF 2011
REPORTABLE
SHER SINGH @ PARTAPA …..APPELLANT
Versus
STATE OF HARYANA …..RESPONDENT
J U D G M E N T
VIKRAMAJIT SEN, J.
1
1 This Appeal has been filed against the Judgment dated 16.12.2010
passed by the learned Single Judge of the High Court of Punjab and Haryana
dismissing the appeal and affirming the conviction and sentence passed
against the Appellant by the Trial Court under Sections 304B and 498A of
the Indian Penal Code. The marriage between the deceased, Harjinder Kaur
and the accused-Appellant took place on 22.2.1997. The case of the
prosecution is that two months prior to her death on one of her visits to her
parental home, the deceased informed her two brothers of cruelty connected
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2
with dowry demands meted out to her by her husband and his family
members. They, thereafter, conveyed this information to their uncle-
Complainant, Angrej Singh viz. that the accused and his family have been
harassing her with a demand for a motorcycle and a fridge. The
Complainant advised her to return to her matrimonial house with the
assurance that a motorcycle and a fridge would be arranged upon the
marriage of her brothers. On 7.2.1998, one Rajwant Singh informed the
Complainant that the deceased had committed suicide by consuming some
poisonous substance at her matrimonial house in village Danoli. The
Complainant, along with the brothers of the deceased and other members of
the village, rushed to the matrimonial house of the deceased and after
confirming her death, lodged an FIR on the next day i.e., on 8.2.1998.
2 In all, four accused persons, namely, Appellant/Sher Singh (husband),
Devinder Singh (brother-in-law), Jarnail Singh (father-in-law), and
Sukhvinder Kaur (mother-in-law) were tried by the learned Sessions Judge,
Karnal under Sections 304B and 498A IPC. After considering the material
on record the learned Sessions Judge had convicted all the accused and
sentenced them to undergo rigorous imprisonment for seven years under
Section 304B; and to undergo rigorous imprisonment for three years and to
pay a fine of Rs.5,000/- and, in default of payment of such fine, to further
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undergo rigorous imprisonment for a period of six months under Section
498A.
3 Two separate appeals were filed before the High Court of Punjab and
Haryana at Chandigarh, one by Devinder Singh (brother-in-law) along with
Jarnail Singh (father-in-law) and another by the Appellant herein. The High
Court allowed the appeal filed by Devinder Singh and Jarnail Singh and
acquitted them with an observation that the prosecution has failed to prove
any torture committed by them and, therefore, Sections 304B and 498A IPC
were not attracted. Quite palpably, unlike the Trial Court, the High Court
construed even Section 304B requires the prosecution to ‘prove’ beyond
reasonable doubt in contradistinction to ‘show’ the participative role of the
husband’s relatives as a prelude to the deemed guilt kicking in. It was also
observed by the High Court that in such cases there is a tendency of roping
in all the family members disregarding the fact that they resided separately.
However, the Appeal filed by the Appellant was dismissed holding that it
was for the accused/Appellant to explain that the unnatural death of his wife
Harjinder Kaur was not due to cruelty meted out to her in the matrimonial
home and that he has failed in doing so.
3
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4 Learned Counsel appearing on behalf of the Appellant has submitted
that the conviction of the Appellant is liable to be set aside as there is a
specific finding of the learned Sessions Court that there is no positive
evidence on record to the effect that the accused persons ever raised a
demand for a motorcycle and a fridge and that both the Courts below have
failed to fully appreciate the inconsistencies in the depositions of PWs 4 and
7, which could not be relied upon as both were interested witnesses. It is
further submitted that the High Court, on same set of pleadings and
evidence, was not justified in acquitting the other accused persons, namely,
Devinder Singh (brother-in-law) and Jarnail Singh (father-in-law), while
convicting the Appellant. In support of this argument, learned Counsel for
the Appellant has relied on the decision of this Court in Narayanamurthy v.
State of Karnataka (2008) 16 SCC 512. It is also contended that the
prosecution has not established that soon before her death, the deceased had
been subjected to any cruelty or harassment in connection with any demand
for dowry. Support has been drawn from Durga Prasad v. State of Madhya
Pradesh (2010) 9 SCC 73.
4
5 Out the outset we shall briefly analyse the cauldron of legislation
passed by Parliament on the subject which we are presently engaged with.
Confronted with the pestilential proliferation of incidents of married women
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being put to death because of avaricious and insatiable dowry demands, and/
or of brides being driven to take their own lives because of cruelty meted out
to them by their husband and his family also because of dowry expectations,
Parliament enacted the Dowry Prohibition Act, 1961 (for short ‘the Dowry
Act’) in an endeavour to eradicate the social evil of giving and taking of
dowry. Section 2 thereof defines ‘dowry’ as including any property or
valuable security given or agreed to be given by one party to the other party
around the time of marriage. Section 3 makes it punishable to give or take
or abet the giving or taking of dowry; the punishment for the offence being
not less than five years, and with a fine of Rs.15,000/- or the amount of the
value of such dowry, whichever is more. Sub-section (2) thereof
understandably makes an exclusion in respect of presents given at the time
of marriage provided they are of a customary nature and the value thereof is
not excessive having regard to the financial status of the concerned parties.
This Section also mandates the drawing up of a list of presents received in
contemplation of marriage. Section 4 makes it punishable even to demand
dowry and if any agreement is entered into for the giving or taking of dowry,
Section 5 makes it void. Section 6 clarifies that where any dowry is
received by any person other than the woman in connection with whose
marriage it is given, it must be transferred to her within three months of
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marriage or receipt of the dowry. The passing of this statute, however, did
not eradicate the scourge of dowry demands, resulting in Parliament
devoting its attention yet again to what was required to free society of this
pernicious practice.
6
6 As is evident from a perusal of the Statement of Objects and Reasons
to the Criminal Law (Second Amendment) Act, 1983 [Act 46 of 1983],
Parliament continued to be concerned with the increasing number of dowry
deaths. By this legislation Chapter XX A was introduced into the Indian
Penal Code (IPC) containing the solitary Section 498A, in order to “deal
effectively not only with cases of dowry deaths, but also cases of cruelty to
married women by their in-laws.” Conspicuously, this Section does not
employ the word ‘dowry’ at all. In essence, the amendment makes
matrimonial cruelty to the wife punishable with imprisonment for a term
which may extend to three years together with fine. The Explanation to
Section 498A defines ‘cruelty’ in Clause (a) to the Explanation to first mean
wilful conduct as is likely to drive the woman to commit suicide or to cause
grave injury or danger to her life. Since there is no allusion to dowry it
converts cruelty, which would ordinarily entitle the wife to seek a
dissolution of her marriage, into a criminal act. Parliament rightly restricted
the subject offence to only cruelty perpetuated on women since their
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emancipation, in meaningful terms, largely remains a mirage. One can only
optimistically hope that the increasing literacy amongst females, as also
amendments in Hindu Law granting a daughter a share in her father’s estate,
will sooner than later put an end to this malaise. As we are not concerned in
this Appeal with events falling within the ambit of Clause (a) of the
Explanation, we shall desist from recording any further reflection on the
sweep and intent and possible incongruities contained therein as such an
exercise on our part would avoidably add to the bludgeoning burden of
obiter dicta, which invariably causes confusion. Secondly, broadly stated,
Clause (b) to the Explanation of Section 498A IPC, postulates harassment
meted out to the woman with a view to coercing her or her relatives to meet
any unlawful demand for any property or valuable security. Although this
Clause does not employ the word ‘dowry’, it is apparent that its object is to
combat this odious societal excrescence. Act 46 of 1983 simultaneously
incorporated changes in Section 174(3) of the Cr.P.C. pertaining to the
suicide or death of a woman within seven years of her marriage; it mandated
the examination by the nearest Civil Surgeon of the body of the unfortunate
woman. In addition thereto, Section 113A was introduced into the Indian
Evidence Act, 1872. [Although not relevant to the present context, it is
poignant that even though Section 113 was under its active scrutiny,
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8
Parliament did not think it necessary to excise the existing and entirely
irrelevant Section 113 which speaks of the cession of ‘British’ territory to
any ‘Native State’]. Section 113A, introduced into the Evidence Act by
Clause 7 of Act 46 of 1983, specifies that when the question is whether the
commission of suicide by a woman had been abetted by her husband or his
relative and it is shown that she has committed suicide within a period of
seven years from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the Court may presume,
having regard to all the other circumstances of the case, that such suicide
had been abetted by her husband or by relatives of her husband.
7 Within the short span of three years Parliament realized the necessity
to make the law more stringent and effective by introducing amendments to
the Dowry Act, as well as the IPC by enacting Act 43 of 1986. These
amendments, inter alia, made the offences dealt with in the Dowry Act
cognizable for certain purposes and also made them non-bailable as well as
non-compoundable. By the introduction of Section 8A of the Dowry Act
the burden of proof was reversed in respect of prosecutions for taking or
abetting the taking or demanding of any dowry by making the concerned
person responsible for proving that he had not committed any such offence.
Contemporaneously Section 304B was inserted into the IPC. The newly
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added Section stipulates that 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. Sub-section (2) makes this offence punishable
with imprisonment for a term which shall not be less than seven years and
which may extend to imprisonment for life. Section 113B was further
incorporated into the Evidence Act; [yet again ignoring the futility, if not
ignominy, of retaining the withered appendage in the form of the existing
Section 113, and further perpetuating an anachronism.] Be that as may be,
the newly introduced Section 113B states that when the question is whether
a person has committed the death of a married woman and it is shown that
soon before her death such woman had been subjected by such person to
cruelty or harassment or in connection with any demand for dowry, the
Court shall presume that such person has caused dowry death. The
Explanation harks back to the simultaneously added Section 304B of the
IPC for the definition of dowry death, clarifying thereby that the person
alluded to in this Section is her husband or any relative of her husband. It is
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noteworthy that whilst Section 113A of the Evidence Act reposes discretion
in the Court to draw a presumption so far as the husband’s abetment in his
wife’s suicide, Parliament has mandated the Court to draw at least an
adverse inference under Section 113B in the event of a dowry death. It
seems to us that where a wife is driven to the extreme step of suicide it
would be reasonable to assume an active role of her husband, rather than
leaving it to the discretion of the Court.
8 The legal regime pertaining to the death of a woman within seven
years of her marriage thus has numerous features, inter alia:
(i) the meaning of “dowry” is as placed in Section 2 of the Dowry
Prohibition Act.
10
(ii) dowry death stands defined for all purposes in Section 304B of
the IPC. It does exclude death in normal circumstances.
(iii) If death is a result of burns or bodily injury, or otherwise than
under normal circumstances, and it occurs within seven years of
the marriage and, it is ‘shown’ in contradistinction to ‘proved’
that soon before her death she was subjected to cruelty or
harassment by her husband or his relatives, and the cruelty or
harassment is connected with a demand of dowry, it shall be a
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dowry death, and the husband or relative shall be deemed to
have caused her death.
(iv) To borrow from Preventive Detention jurisprudence – there
must be a live link between the cruelty emanating from a dowry
demand and the death of a young married woman, as is sought
to be indicated by the words “soon before her death”, to bring
Section 304B into operation; the live link will obviously be
broken if the said cruelty does not persist in proximity to the
untimely and abnormal death. It cannot be confined in terms
of time; the query of this Court in the context of condonation of
delay in filing an appeal – why not minutes and second –
remains apposite.
11
(v) the deceased woman’s body has to be forwarded for
examination by the nearest Civil Surgeon.
(vi) once the elements itemised in (iii) above are shown to exist the
husband or relative shall be deemed to have caused her death.
(vii) the consequences and ramifications of this ‘deeming’ will be
that the prosecution does not have to prove anything more, and
it is on the husband or his concerned relative that the burden of
proof shifts as adumbrated in Section 113B, which finds place
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in Chapter VII of the Evidence Act. This Chapter first covers
‘burden of proof’ and then “presumption”, both being constant
bed-fellows. In the present context the deeming or
presumption of responsibility of death are synonymous.
9 Death can be accidental, suicidal or homicidal. The first type is a
tragedy and no criminal complexion is conjured up, unless statutorily so
devised, as in Section 304A; but even there the culpable act is that of the
person actually causing the death. It seems to us that Section 304B of the
IPC, inasmuch as it also takes within its contemplation “the death of a
woman ….. otherwise than under normal circumstances”, endeavours to
cover murders masquerading as accidents. Justifiably, the suicidal death of
a married woman who was meted out with cruelty by her husband, where
her demise occurred within seven years of marriage in connection with a
dowry demand should lead to prosecution and punishment under Sections
304B and/or 306 of the IPC. However, if the perfidious harassment and
cruelty by the husband is conclusively proved by him to have had no causal
connection with his cruel behaviour based on a dowry demand, these
provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007)
11 SCC 205, although some reservation may remain regarding the reach of
Section 306.
12
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10 It is already empirically evident that the prosecution, ubiquitously and
in dereliction of duty, in the case of an abnormal death if a young bride
confines its charges to Section 304B because the obligation to provide proof
becomes least burdensome for it; this is the significance that attaches to a
deeming provision. But, in any death other than in normal circumstances,
we see no justification for not citing either Section 302 or Section 306, as
the circumstances of the case call for. Otherwise, the death would logically
fall in the category of an accidental one. It is not sufficient to include only
Section 498A as the punishment is relatively light. Homicidal death is
chargeable and punishable under Sections 302 and 304B if circumstances
prevail triggering these provisions. This Court has repeatedly reiterated this
position, including in State of Punjab v. Iqbal Singh, 1991 (3) SCC 1 and
quite recently in Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7)
SCC 256.
13
11 Some doubts remain on the aspect of presumption of innocence,
deemed culpability and burden of proof. One of our Learned Brothers has in
Pathan Hussain Basha v. State of Andhra Pradesh (2012) 8 SCC 594, after
extensively extracting from the previous judgment authored by him (but
without indicating so) expressed two opinions – (a) that Article 20 of the
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Constitution of India contains a presumption of innocence in favour of a
suspect and, (b) that the concept of deeming fiction is hardly applicable to
criminal jurisprudence. The logical consequence of both these conclusions
would lead to the striking down of Section 8A of the Dowry Act, Section
113B of the Evidence Act, and possibly Section 304B of the IPC, but neither
decision does so. So far as the first conclusion is concerned, suffice it to
reproduce Article 20 of the Constitution:
14
20. Protection in respect of conviction for offences.-(1) No
person shall be convicted of any offence except for violation of
a law in force at the time of the commission of the act charged
as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the
time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same
offence more than once.
(3) No person accused of any offence shall be compelled to be a
witness against himself.
Even though there may not be any Constitutional protection to the concept
of presumption of innocence, this is so deeply ingrained in all Common Law
legal systems so as to render it ineradicable even in India, such that the
departure or deviation from this presumption demands statutory sanction.
This is what the trilogy of dowry legislation has endeavoured to ordain.
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12 In our opinion, it is beyond cavil that where the same word is used in
a section and/or in sundry segments of a statute, it should be attributed the
same meaning, unless there are compelling reasons to do otherwise. The
obverse is where different words are employed in close proximity, or in the
same section, or in the same enactment, the assumption must be that the
legislature intended them to depict disparate situations, and delineate
dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not
have proposed to ordain that the prosecution should “prove” the existence of
a vital sequence of facts, despite having employed the word “shown” in
Section 304B. The question is whether these two words can be construed as
synonymous. It seems to us that if the prosecution is required to prove,
which always means beyond reasonable doubt, that a dowry death has been
committed, there is a risk that the purpose postulated in the provision may be
reduced to a cipher. This method of statutory interpretation has consistently
been disapproved and deprecated except in exceptional instances where the
syntax permits reading down or reading up of some words of the subject
provisions.
15
13 In Section 113A of the Evidence Act Parliament has, in the case of a
wife’s suicide, “presumed” the guilt of the husband and the members of his
family. Significantly, in Section 113B which pointedly refers to dowry
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deaths, Parliament has again employed the word “presume”. However, in
substantially similar circumstances, in the event of a wife’s unnatural death,
Parliament has in Section 304B “deemed” the guilt of the husband and the
members of his family. The Concise Oxford Dictionary defines the word
“presume” as: supposed to be true, take for granted; whereas “deem” as:
regard, consider; and whereas “show” as: point out and prove. The Black’s
Law Dictionary (5
th
16
Edition) defines the word “show” as- to make apparent
or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge,
believe, condemn, determine, construed as if true; “presume” as- to believe
or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of
law, statutory or judicial, by which finding of a basic fact gives rise to
existence of presumed fact, until presumption is rebutted.” The Concise
Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct
definition of burden of proof which is worthy of reproduction:
“Burden of Proof: The duty of a party to litigation to prove a
fact or facts in issue. Generally the burden of proof falls upon
the party who substantially asserts the truth of a particular fact
(the prosecution or the plaintiff). A distinction is drawn
between the persuasive (or legal) burden, which is carried by
the party who as a matter of law will lose the case if he fails to
prove the fact in issue; and the evidential burden (burden of
adducing evidence or burden of going forward), which is the
duty of showing that there is sufficient evidence to raise an
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issue fit for the consideration of the trier of fact as to the
existence or non-existence of a fact in issue.
The normal rule is that a defendant is presumed to be
innocent until he is proved guilty; it is therefore the duty of the
prosecution to prove its case by establishing both the actus reus
of the crime and the mens rea. It must first satisfy the
evidential burden to show that its allegations have something to
support them. If it cannot satisfy this burden, the defence may
submit or the judge may direct that there is no case to answer,
and the judge must direct the jury to acquit. The prosecution
may sometimes rely on presumptions of fact to satisfy the
evidential burden of proof (e.g. the fact that a woman was
subjected to violence during sexual intercourse will normally
raise a presumption to support a charge of rape and prove that
she did not consent). If, however, the prosecution has
established a basis for its case, it must then continue to satisfy
the persuasive burden by proving its case beyond reasonable
doubt (see proof beyond reasonable doubt). It is the duty of the
judge to tell the jury clearly that the prosecution must prove its
case and that it must prove it beyond reasonable doubt; if he
does not give this clear direction, the defendant is entitled to be
acquitted.
There are some exceptions to the normal rule that the
burden of proof is upon the prosecution. The main exceptions
are as follows. (1) When the defendant admits the elements of
the crime (the actus reus and mens rea) but pleads a special
defence, the evidential burden is upon him to prove his defence.
This may occur, the example, in a prosecution for murder in
which the defendant raises a defence of self-defence. (2) When
the defendant pleads automatism, the evidential burden is upon
him. (3) When the defendant pleads insanity, both the evidential
and persuasive burden rest upon him. In this case, however, it
is sufficient if he proves his case on a balance of probabilities
(i.e. he must persuade the jury that it is more likely that he is
telling the truth than not). (4) In some cases statute expressly
places a persuasive burden on the defendant; for example, a
person who carries an offensive weapon in public is guilty of an
offence unless he proves that he had lawful authority or a
reasonable excuse for carrying it”.
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14 As is already noted above, Section 113B of the Evidence Act and
Section 304B of the IPC were introduced into their respective statutes
simultaneously and, therefore, it must ordinarily be assumed that Parliament
intentionally used the word ‘deemed’ in Section 304B to distinguish this
provision from the others. In actuality, however, it is well nigh impossible
to give a sensible and legally acceptable meaning to these provisions, unless
the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’
as freely interchangeable with the word ‘deemed’. In the realm of civil and
fiscal law, it is not difficult to import the ordinary meaning of the word
‘deem’ to denote a set of circumstances which call to be construed contrary
to what they actually are. In criminal legislation, however, it is unpalatable
to adopt this approach by rote. We have the high authority of the
Constitution Bench of this Court both in State of Travancore-Cochin v.
Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil
Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to
ascertain the purpose behind the statutory fiction brought about by the use of
the word ‘deemed’ so as to give full effect to the legislation and carry it to
its logical conclusion. We may add that it is generally posited that there are
rebuttable as well as irrebuttable presumptions, the latter oftentimes
assuming an artificiality as actuality by means of a deeming provision. It is
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abhorrent to criminal jurisprudence to adjudicate a person guilty of an
offence even though he had neither intention to commit it nor active
participation in its commission. It is after deep cogitation that we consider
it imperative to construe the word ‘shown’ in Section 304B of the IPC as to,
in fact, connote ‘prove’. In other words, it is for the prosecution to prove
that a ‘dowry death’ has occurred, namely, (i) that the death of a woman has
been caused in abnormal circumstances by her having been burned or having
been bodily injured, (ii) within seven years of a marriage, (iii) and that she
was subjected to cruelty or harassment by her husband or any relative of her
husband, (iv) in connection with any demand for dowry and (v) that the
cruelty or harassment meted out to her continued to have a causal connection
or a live link with the demand of dowry. We are aware that the word ‘soon’
finds place in Section 304B; but we would prefer to interpret its use not in
terms of days or months or years, but as necessarily indicating that the
demand for dowry should not be stale or an aberration of the past, but should
be the continuing cause for the death under Section 304B or the suicide
under Section 306 of the IPC. Once the presence of these concomitants are
established or shown or proved by the prosecution, even by preponderance
of possibility, the initial presumption of innocence is replaced by an
assumption of guilt of the accused, thereupon transferring the heavy burden
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of proof upon him and requiring him to produce evidence dislodging his
guilt, beyond reasonable doubt. It seems to us that what Parliament intended
by using the word ‘deemed’ was that only preponderance of evidence would
be insufficient to discharge the husband or his family members of their guilt.
This interpretation provides the accused a chance of proving their innocence.
This is also the postulation of Section 101 of the Evidence Act. The purpose
of Section 113B of the Evidence Act and Section 304B of the IPC, in our
opinion, is to counter what is commonly encountered – the lack or the
absence of evidence in the case of suicide or death of a woman within seven
years of marriage. If the word “shown” has to be given its ordinary
meaning then it would only require the prosecution to merely present its
evidence in Court, not necessarily through oral deposition, and thereupon
make the accused lead detailed evidence to be followed by that of the
prosecution. This procedure is unknown to Common Law systems, and
beyond the contemplation of the Cr.P.C.
20
15 The width and amplitude of a provision deeming the guilt of a person
in a legal system founded on a Constitution needs to be briefly reflected on.
The Constitution is the grundnorm on which the legal framework has to be
erected and its plinth cannot be weakened for fear of the entire structure
falling to the ground. If the Constitution expressly affirms or prohibits
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particular state of affairs, all statutory provisions which are incongruent
thereto must be held as ultra vires and, therefore, must not be adhered to.
We have already noted that Article 20 of our Constitution while not
affirming the presumption of innocence does not prohibit it, thereby, leaving
it to Parliament to ignore it whenever found by it to be necessary or
expedient. A percutaneous scrutiny reveals that some legal principles such
as presumption of innocence can be found across a much wider legal system,
ubiquitously in the Common Law system, and restrictively in the Civil Law
system. It seems to us that the presumption of innocence is one such legal
principle which strides the legal framework of several countries owing
allegiance to the Common Law; even International Law bestows its
imprimatur thereto. Article 11.1 of the Universal Declaration of Human
Rights, 1948 states – “Everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to law in a public trial
at which he has had all the guarantees necessary for his defence.” Article
14(3)(g) of the International Covenant on Civil and Political Rights, 1966,
assures as a minimum guarantee that everyone has a right not to be
compelled to testify against himself or to confess guilt. Article 6 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, firstly, promises the right to a fair trial and secondly, assures that
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anyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law. We may immediately emphasise that the
tenet of presumed innocence will always give way to explicit legislation to
the contrary. The presumption of innocence has also been recognised in
certain circumstances to constitute a basic human right. Parliament,
however, has been tasked with the responsibility of locating myriad
competing, if not conflicting, societal interests. It is quite apparent that
troubled by the exponential increase in the incidents of bride burning,
Parliament thought it prudent, expedient and imperative to shift the burden
of proof in contradistinction to the onus of proof on to the husband and his
relatives in the cases where it has been shown that a dowry death has
occurred. The inroad into or dilution of the presumption of innocence of an
accused has, even de hors statutory sanction, been recognised by Courts in
those cases where death occurs in a home where only the other spouse is
present; as also where an individual is last seen with the deceased. The
deeming provision in Section 304B is, therefore, neither a novelty in nor an
anathema to our criminal law jurisprudence.[See Mir Mohammad Omar and
Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.
16 It has already been pointed out that both in Pathan Hussain Basha as
well as in Ashok Kumar v. State of Haryana 2010 (12) SCC 350, authored
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by our same learned Brother, the use of word “shown” in Section 304B has
palpably not been given due weightage inasmuch as it has been freely
substituted by the word “proved”. To the contrary in Nallam Veera
Stayanandam v. Public Prosecutor 2004 (10) SCC 769, it has been opined
that “it is for the defence in this case to satisfy the Court that irrespective of
the prosecution case in regard to dowry demand and harassment, the death of
the deceased has not occurred because of that and that the same resulted
from a cause totally alien to such dowry demand or harassment.”
17 Keeping in perspective that Parliament has employed the amorphous
pronoun/noun “it” (which we think should be construed as an allusion to the
prosecution), followed by the word “shown” in Section 304B, the proper
manner of interpreting the Section is that “shown” has to be read up to mean
“prove” and the word “deemed” has to be read down to mean “presumed”.
Neither life nor liberty can be emasculated without providing the individual
an opportunity to disclose extenuating or exonerating circumstances. It was
for this reason that this Court struck down the mandatory death sentence in
Section 303 IPC in its stellar decision in Mithu vs. State of Punjab, AIR
1983 SC 473. Therefore, the burden of proof weighs on the husband to
prove his innocence by dislodging his deemed culpability, and that this has
to be preceded only by the prosecution proving the presence of three factors,
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viz. (i) the death of a woman in abnormal circumstances (ii) within seven
years of her marriage, and (iii) and that the death had a live link with cruelty
connected with any demand of dowry. The other facet is that the husband
has indeed a heavy burden cast on his shoulders in that his deemed
culpability would have to be displaced and overturned beyond reasonable
doubt. This emerges clearly as the manner in which Parliament sought to
combat the scourge and evil of rampant bride burning or dowry deaths, to
which manner we unreservedly subscribe. In order to avoid prolixity we
shall record that our understanding of the law finds support in an extremely
extensive and erudite judgment of this Court in P.N. Krishna Lal v.
Government of Kerala, 1995 Supp (2) SCC 187, in which decisions
spanning the globe have been mentioned and discussed. It is also important
to highlight that Section 304B does not require the accused to give evidence
against himself but casts the onerous burden to dislodge his deemed guilt
beyond reasonable doubt. In our opinion, it would not be appropriate to
lessen the husband’s onus to that of preponderance of probability as that
would annihilate the deemed guilt expressed in Section 304B, and such a
curial interpretation would defeat and neutralise the intentions and purposes
of Parliament. A scenario which readily comes to mind is where dowry
demands have indubitably been made by the accused husband, where in an
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agitated state of mind, the wife had decided to leave her matrimonial home,
and where while travelling by bus to her parents’ home she sustained fatal
burn injuries in an accident/collision which that bus encountered. Surely, if
the husband proved that he played no role whatsoever in the accident, he
could not be deemed to have caused his wife’s death. It needs to be
immediately clarified that if the wife had taken her life by jumping in front
of a bus or before a train, the husband would have no defence. Examples
can be legion, and hence we shall abjure from going any further. All that
needs to be said is that if the husband proves facts which portray, beyond
reasonable doubt, that he could not have caused the death of his wife by
burns or bodily injury or not involved in any manner in her death in
abnormal circumstances, he would not be culpable under Section 304B.
18 Now, to the case in hand. It has been contended before us, as was also
unsuccessfully argued before both the Courts below that there was a ‘delay’
in lodging the FIR. There is no perversity in the concurrent views that its
lodgement after ten hours on the day next after the tragedy, i.e. 8/02/98 did
not constitute inordinate delay such as would justifiably categorising the FIR
as an after-thought or as contrived. The Complainant along with family and
friends had to travel to another village; he would have had to first come to
terms with the tragedy, make enquiries and consider the circumstances,
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before recording the FIR. Equally preposterous is the argument that once
the High Court had seen fit to acquit the other accused, namely, Davinder
Singh (brother-in-law) and Jarnail Singh (father-in-law) the
husband/Appellant should have been similarly acquitted. It cannot be
ignored that the accused was not living with his parents and brother, and it is
justified nay necessary to require stronger proof to implicate the family
members of the husband. It has been essayed by the learned counsel for the
Appellant to impress upon us that the cruelty postulated in this provision has
not been shown to have occurred “soon before her death”. This argument,
assumes on a demurrer, that statutory cruelty had, in fact, been committed.
The deceased and the Appellant were married in February, 1997 and the
former committed suicide within one year; to even conjecture that it was not
soon before death, has only to be stated to be stoutly shot down.
19 We must consider, lastly, whether the prosecution has successfully
‘shown’ that the deceased was subjected to cruelty which was connected
with dowry demands. We may usefully reiterate here that keeping in
perspective the use of “shown” instead of “proved” the onus would stand
satisfied on the anvil of preponderance of evidence.
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20 The two prosecution witnesses, on whom the entire episode is
predicated, are PW4 and PW7. The Complainant/PW4-Angrez Singh
appears to be the eldest in the family as he has stated that his brother, i.e. the
father of the deceased, had already died. He has stated that sufficient
kanyadan was given at the time of marriage; that two months prior to her
death the deceased had, on one of her visits to their home, conveyed to her
brothers that her husband and his family were harassing her for dowry,
especially a motorcycle and fridge. On learning of these demands PW4 had
told her that these goods would be provided at the time of the marriage of
her brothers. PW4 was told by Rajwant Singh that his niece had committed
suicide. The Complainant has admitted that there were no demands for
dowry either at the betrothal or at the time of marriage. Her maternal
uncle Gurdip Singh avowedly fixed/mediated/arranged the unfortunate
marriage, yet he was not apprised of the dowry demands by Angrez Singh.
He has also denied that any panchayat was convened regarding these dowry
demands, whereas Sukhwant Singh PW7, the real brother of the deceased,
has categorically stated in cross-examination that a panchayat comprising
both Angrez Singh and Gurdip Singh and several others had held
deliberations.
27
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21 In cross-examination, the complainant has admitted that the deceased
never spoke to him about her domestic problems or regarding demand of
dowry by the accused except once, on the last occasion of her visit. He has
further admitted that even her brothers had not conveyed any information to
him in this regard. On the fateful day PW4 stated that he reached the
village where the deceased resided and where she had committed suicide at
about 7.00 pm on 7.2.1998 and that he immediately left for that place along
with several others after ascertaining facts; the following morning he lodged
the report at P.S. Assandh. What is important from his deposition is that he
has deposed of only one alleged demand of dowry.
22 Sukhwant Singh, the real brother of the deceased has been examined
as PW7 and he has deposed that the deceased visited their house two months
prior to her death and narrated that the Appellant, his younger brother, their
father and mother used to harass and torture her and demand dowry in the
form of motorcycle and fridge and that he had told these facts to their uncle,
Angrez Singh, as well as to his elder brother Jaswant Singh. He has further
stated that he made the deceased understand about their financial difficulties
and promised to give motorcycle and fridge after his marriage and that of her
brother. He was informed of the death of the deceased on 7.2.98 by Angrez
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Singh/PW4. In cross-examination even this witness has admitted that no
dowry demands were made prior to or at the time of marriage. He has also
deposed about a panchayat which included Gurdeep Singh (maternal uncle)
as well as Angrez Singh/PW4 who, as has already been noted, has
categorically stated that no such Panchayat took place. The version of the
Appellant was put to him and denied, namely, that the deceased was hot
tempered, wanted him to shave his hair, forced him to live separately from
his parents, wanted him to shift to Karnal and start a business, all of which
were against his wishes. The fundamental and vital question that the Court
has to ask itself and find a solid answer to, is whether this evidence even
preponderantly proves that the Appellant had treated the deceased with
cruelty connected with dowry demands. It is only if the answer is in the
affirmative will the Court have to weigh the evidence produced by the
Appellant to discharge beyond reasonable doubt, the assumption of his
deemed guilt. We have not lost sight of the fact that the deceased was
pregnant at the time of her suicide and that only extraordinary and
overwhelming factors would have driven her to take her life along with that
of her unborn child. The fact remains that she did so. What motivated or
compelled her to take this extreme and horrific step will remain a mystery,
as we are not satisfied that the prosecution has proved or even shown that
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she was treated with such cruelty, connected with dowry demands, as led her
to commit suicide. In the normal course dowry demands are articulated
when the marriage is agreed upon and is certainly reiterated at the time when
it is performed and such demands continue into a couple of years of
matrimony. In normal course, if a woman is being tortured and harassed,
she would not remain reticent of this state of affairs and would certainly
repeatedly inform her family. This is specially so before she takes the
extreme step of taking her own life. Added to this are the inconsistencies
and contradictions between the statements of PW4 and PW7 with regard to
the panchayat and the presence of and knowledge of Gurdip Singh. It is for
these reasons that we are of the opinion that the prosecution has not
shown/presented and or proved even by preponderance of probabilities that
the deceased had been treated with cruelty emanating from or founded on
dowry demands. It is in the realm of a possibility that the ingestion of
aluminium phosphate may have been accidental.
23 We may only observe that in his examination under Section 313
Cr.P.C. the accused has proffered details of his defence. This is not a case
where he has merely denied all the questions put by the Court to him. As
already stated above, because of the insufficiency or the unsatisfactory
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nature of the facts or circumstances shown by the prosecution, the burden of
proving his innocence has not shifted to the Appellant, in the present case.
24 In this analysis, the Appeal is allowed and the impugned Judgment
convicting and punishing the Appellant is set aside.
............................................J.
[VIKRAMAJIT SEN]
............................................J.
[KURIAN JOSEPH]
New Delhi;
January 09, 2015.
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