[Criminal Appeal No. 1366 of 2010]
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction and sentence of the appellant under Sections 304-B and 498-A of the Indian Penal Code (for short the “IPC”). Under Section 304-B IPC, the appellant has been sentenced to undergo rigorous imprisonment for 7 years while under Section 498A, IPC he has been sentenced to undergo rigorous imprisonment for three years, apart from sentence of fine.
2. The appellant was married to the deceased Lavjeet Kaur on 27th February, 1990. On 17th June, 1994, PW 4- Gurmeet Singh lodged First Information Report to the effect that Lavjeet Kaur was burnt to death by the appellant and his mother. It was further stated that she was harassed for dowry soon before her death. Apart from other demands of dowry, it was stated that 5-6 days before the death, the appellant visited the parental house of the deceased and made a demand of Rs.30,000/- for purchase of land. Since the said demand was not met, he left the house under protest. On the fateful day, when he (PW-4) visited the house of the appellant he found that the appellant’s mother poured oil from a ‘can’ on the deceased and the appellant ignited the fire. He came to his parents and thereafter he went to the Civil Hospital where he learnt that the accused was referred to the PGI Chandigarh but she died on the way.
3. On the basis of this First Information Report, the investigation was conducted by PW 6-ASI, Madan Pal Singh and after investigation, the appellant and his mother (who has been acquitted by the High Court) were sent up for trial.
4. The prosecution examined PW 4-Gurmeet Singh, brother of the deceased, PW 5-Ujjagar Singh, father of the deceased, apart from evidence of Investigating Officer and the Medical Officer and other evidence.
5. The appellant denied the allegations and took the plea that the deceased caught fire accidentally while working on a stove. He had gone to the school near their house for giving his photo for the Identity Card for voting purpose. When he learnt about the accident, he immediately took Lavjeet Kaur to the hospital.
6. The trial Court held that though the version of PW 4- Gurmeet Singh and PW 5-Ujjagar Singh that they had seen the appellant setting the deceased on fire was not reliable, their reversion of demand of dowry soon before the death could not be rejected. Since her death was within seven years of marriage, demand of dowry was proved and the death was under the circumstances other than normal, presumption under Section 113B of the Indian Evidence Act could be raised. Thus, the commission of offences under Sections 498-A and 304-B, IPC was proved.
It was held that story of bursting of stove was not reliable. The relevant discussion in this regard, is as follows : “From the sworn testimony of PWs Gurmeet Singh and Ujjagar Singh discussed above it has become very clear that deceased Smt. Lavjeet Kaur was subjected to cruelty or harassment by the accused persons for the demand of dowry right from the beginning of her marriage till death. Even soon before her death she was subjected to cruelty by the accused persons when father of the deceased could not pay a sum of Rs.30,000/- to accused Sultan Singh 5/6 days prior to the death of deceased. Deceased was married with accused Sultan Singh on 27.2.1990 and she died on 17.6.1994 on account of burn injuries at the matrimonial home.
The fact that the deceased died on account of burn injuries is well proved from the medical evidence consisting of the statements of Dr. S.K. Gupta who medico-legally examined the deceased immediately on arrival at Civil Hospital Ambala Cantt., and also of Dr. Gajinder Yadav PW-3 who conducted the post mortem examination of the dead body of deceased. The deceased Smt. Lavjeet Kaur aged about 22 years had suffered 70% burn injuries and died on account of the same. Thus, it has been well established that the death of deceased Smt. Lavjeet Kaur was caused by burns and she died unnatural death. It has also been established that she died within a period of seven years of her marriage. As already discussed by me that it has also been established that the deceased was also subjected to cruelty by the accused persons for the demand of dowry soon before her death.
Thus in view of the provisions contained in Section 113- B of the Indian Evidence Act it can very well be presumed that the accused persons have caused dowry death. Since the deceased Lavjeet Kaur was at the house of the accused and therefore now it is for the accused persons to explain how she died an unnatural death within a period of about 4- 1/2 years of her marriage. The explanation furnished by the accused persons with respect to the death of Smt. Lavjeet Kaur in the form of their defence version to the effect that the deceased died just by mere accident as she caught fire on account of bursting of stove when she was cooking meals cannot be accepted. The investigating officer ASI Madan Pal took into possession a plastic can Ex.P-1 smelling kerosene oil and half burnt Gadda from inside the room of the house.
If Smt. Lavjeet Kaur had been caught fire while working on the stove I fail to understand as to how the Gadda lying in the bed room of the house would have caught fire. Secondly if the stove would have burst the same must have been found lying at the place of occurrence, but the same was not available to the Investigating Officer when he visited the spot. It clearly negatives the defence version that Smt. Lavjeet Kaur caught fire on account of bursting of stove. The argument of the learned defence counsel to the effect that PW Gurmeet Singh has deposed that he had seen the accused setting Smt. Lavjeet Kaur on fire by sprinkling kerosene oil upon her in the court yard of the house does not effect the prosecution case in any way, because I have already observed in the earlier part of the judgment that the deposition of PW Gurmeet Singh so far as he has given an eye version account cannot be believed that therefore the story of the court yard put forward by him automatically goes.
However, the fact remains that the Investigating Officer found the half burnt Gadda Ex.P-2 and the plastic can Ex.P-1 smelling kerosene inside the bed room of the house. Thus, the non-availability of the burst stove on the spot itself speaks that the defence version is nothing but is simply made up story and cannot be believed. The medical evidence as pointed out by the learned defence counsel also does not help the accused persons in any way. It has been deposed by Dr. Gajinder Yadav that there were deep burns on legs and chest of the deceased. It has come in the statements of both the medical officers that the deceased suffered 70% burn injuries and died as a result thereof. It has been categorically stated by Dr. Gajinder Yadav who conducted the post-mortem examination that the deceased died on account of burn injuries which were sufficient to cause death in the ordinary course of nature.
I fail to understand as to what help the accused could take from the statements of the medical officers by pointing out that the Medical Officers have deposed that there was no smell of kerosene from the body and clothes of the deceased. If it was so then it also smashes the defence version, because if the deceased had caught fire by bursting of stove then also there must be smell of kerosene oil on her clothes. In my view, the smell of kerosene might have evaporated in between the time of occurrence till the post mortem examination because the occurrence had taken place on 17.6.1994 at about noon time, whereas the post mortem examination was conducted on 18.6.1994. Further, the deceased was unconscious when she was admitted in the hospital and therefore, it is not known how the deceased could tell Dr. S.K. Gupta that she had caught fire while working on a stove.
Another person from whom Dr. S.K. Gupta derived this information was one Amar Nath a private Medical practitioner, who accompanied the deceased to the hospital. However, Shri Amar Nath was not produced in defence to ascertain whether he had told this fact to the Medical Officer and if so how he acquired the said knowledge whether from the deceased or otherwise. Moreover, in the ruka Ex.PC sent by Dr. S.K. Gupta to the police there is no mentioning of the bursting of stove, nor it has been mentioned as to how he learnt that the deceased caught fire while working on a stove. It has simply been mentioned that the deceased was alleged to have sustained burns 70% while working on a stove.
The word ‘bursting’ is missing in this ruka, whereas, it was so stated by Dr. S.K. Gupta when he appeared in the witness box. If the story of bursting of stove came to his knowledge it is not known why he omitted to mention this fact in his ruka Ex. PC sent to the police. Taking into consideration all the facts and circumstances I am of the definite view that the statement of Dr. S.K. Gupta to the effect that there was the history of burns allegedly sustained by the deceased due to bursting of stove while cooking food is not legally sound because neither Amar Nath was produced, nor deceased could speak anything before her death.”
7. The appellant preferred an appeal. The High Court upheld the conviction of the appellant while acquitting his mother Mohinder Kaur, the co-accused, of the charge under Section 304-B, IPC but upheld her conviction under Section 498A, IPC. It was observed that the allegation of demand of dowry soon before the death was only against the appellant and not against his mother. Rejecting the defence plea of accidental burning, the High Court observed as under : “The accused or their persons might have accompanied Lavjeet Kaur to the hospital. The accused are naturally interested to save themselves from legal punishment and such as the said history might have been given by them or Amar Nath to save the accused. PW-2 Dr. S.K. Gupta has no personal knowledge about the occurrence and has stated that there was history of burns sustained by Lavjeet Kaur due to bursting of stove while cooking food.
So, that history was given by the accused or Amar Nath, accompanying the injured to the hospital. One another circumstance which militates against the case of the accused is that the police found the blood sustained Gadda in the room where the occurrence is stated to have taken place and not in the kitchen, as per stand of the accused. That fact belied the stand of accused. The statement of Dr. S.K. Gupta that history was given by the patient does not appeal to reason. The deceased was having 70% burn injuries and as such she was not in a position to narrate the occurrence. The police had no reason to change the place of occurrence from the kitchen to the room as shown in the rough site plan.
There were singeing of the skull hair of Lavjeet Kaur besides having burn injuries on the chest and lower part of the body. The fact of bursting of stove and giving the case history by Lavjeet Kaur is not mentioned by Dr. S.K. Gupta in the record. The doctor is not supposed to orally know all the facts. It seems that Dr. S.K. Gupta has stated that the history of the case was given by the patient simply to favour the accused, moreso when there is nothing in this regard on the record. So, no reliance can be placed on the statement made by Dr. S.K. Gupta, in this regard. PW-3 Dr. Gajinder Yadav, has stated that there was probability of the deceased receiving burn injuries by accidental fire but he has not stated it with confidence that in all probability, the death could be accidental, in the present case. That doctor has not seen the other circumstantial evidence at the spot before arriving at the conclusion. So, the learned trial Court has rightly held that Lavjeet Kaur, deceased, has died due to unnatural injuries and not by accidental burn injuries.”
8. We have heard learned counsel for the parties and perused the evidence on the record. 9. The main question raised for our consideration is whether the evidence of demand of dowry soon before the death was reliable and whether it was a case of accidental death as pleaded by the defence. The presumption under Section 113B of the Indian Evidence Act is attracted only in case of suicidal or homicidal death and not in case of an accidental death.
9. We are unable to accept the submissions advanced on behalf of the appellant.
10. The brother and father of the deceased have made categorical allegation of demand of dowry which confirmed almost upto the date of death. Even though version of PW 4, brother of the deceased, and PW 5, father of the deceased, may be exaggerated to the extent of saying that they saw the accused and his mother causing burn injuries, there is no reason to disbelieve their version with regard to demand of dowry. It is true that in case of accidental death presumption under Section 113B of the Indian Evidence Act is not available but there is no reason to hold that in the present case, the burn injuries were by accident.
11. Apart from the following reasons given by the trial Court and the High Court, namely;
(i) The Investigating Officer found the plastic can (Exhibit P-1) smelling kerosene oil and a half burnt mattress (Exhibit P-2);
(ii) The burst stove was not found at the place of occurrence as stated by the Investigating Officer;
(iii) The deceased suffered 70% burn injuries which was held to be sufficient to cause death in the ordinary course of injury, there are other reasons to reject the plea of accident; there are other reasons to support the findings.
12. While in the case of homicidal death, if the victim is caught unaware, a person may not be able to make any effort to save himself/herself and in case of suicidal burn injuries a person may take all precautions not to save himself/herself, in case of accidental burn injuries, victim makes all possible efforts to save himself/herself which may leave evidence to show that the death was accidental. Such a person may raise alarm and try to escape. The Investigating Officer visiting the scene of occurrence can notice the available evidence by recreating the scene. In the present case, there are no probabilities to support the defence plea of accident, particularly when relations between the deceased and the appellant were not harmonious.
13. Thus, taking of plea by the accused to save himself/herself is not enough. The contention in the present case that PW 2-Dr. S.K. Gupta mentioned the history of burn due to bursting of stove was given by the patient and one Amar Nath who accompanied her is without any merit. In the same statement the said witness states that the victim was unfit to make a statement. Amar Nath, who is said to have given this information, has not been examined by the defence. Statement of Dr. S.K. Gupta that Amar Nath gave this information is hearsay. Moreover, PW 2-Dr. S.K. Gupta has been examined as an expert witness to give his opinion about the health condition of the patient based on his expertise.
He is not a witness of fact. Similarly, contention that PW 3-Dr. Gajinder Yadav who conducted the post mortem made a statement in cross examination that there was more probability of death being caused by accidental fire as there was no smell of kerosene oil from the body of the deceased and that the fire had started from the lower parts of the body towards upper parts is equally without any merit. Such statement of an expert witness without being based on any specialized knowledge cannot be accepted.
The opinion of expert witness on technical aspects has relevance but the opinion has to be based upon specialized knowledge and the data on which it is based has to be found acceptable by the Court. In Madan Gopal Kakkad versus Naval Dubey. 1 , it was observed as under : “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.
35. Nariman, J. in Queen v. Ahmed Ally.2, while expressing his view on medical evidence has observed as follows: “The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion.”
14. We may also note that the presumption under Section 113B of the Indian Evidence Act has been enacted to check the menace of the dowry deaths and in appreciating the evidence, the social background of the legislation cannot be 1 (1992) 3 SCC 204 2 (1998) 3 SCC 309 ignored. In Pawan Kumar vs. State of Haryana . 3 , it was observed:
“11. It is true, as argued by learned counsel for the appellants, that in criminal jurisprudence benefit of doubt is extendable to the accused. But that benefit of doubt would arise in the context of the application of penal law, and in the facts and circumstances of a case. The concept of benefit of doubt has an important role to play but within the confines of the stringency of laws. Since the cause of death of a married woman was to occur not in normal circumstances but as a “dowry death”, for which the evidence was not so easily available, as it is mostly confined within the four walls of a house, namely the husband’s house, where all likely accused reside. Hence the aforesaid amendments brought in the concept of deemed “dowry death” by the husband or the relatives, as the case may be. This deeming clause has a role to play and cannot be taken lightly and ignored to shield an accused, otherwise the very purpose of the amendment will be lost. Of course, the prosecution has to prove the ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of “deemed dowry death”.
12. Explanation to Section 304-B refers to dowry “as having the same meaning as in Section 2 of the 1961 Act”, the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage.
13. When words in a statute are referable to more than one meaning, the established rule of construction is found in Heydon’s case1 also approved by this Court in Bengal Immunity Co. Ltd. 3 11 WR Cr. 25 1 Page 13 v. State of Bihar2 AIR at p.
674. The rule is to consider four aspects while construing an Act:
(a) what was the law prior to the law which is sought to be interpreted;
(b) what was the mischief or defect for which new law is made;
(c) what is the remedy the law now provides; and
(d) what is the reason of the remedy.
14. The Court must adopt that construction which, “suppresses the mischief and advances the remedy”.
15. Applying this principle, it is clear that the earlier law was not sufficient to check dowry deaths hence aforesaid stringent provisions were brought in, so that persons committing such inhuman crimes on married women should not escape, as evidence of a direct nature is not readily available except of the circumstantial kind. Hence it is that interpretation which suppresses the mischief, subserves the objective and advances the remedy, which would be acceptable. The objective is that men committing such crimes should not escape punishment. Hence stringent provisions were brought in by shifting the burden onto the accused by bringing in the deemed clause. As aforesaid, the definition of “dowry” was amended with effect from 19-11-1986, to include the period even after the marriage.
16. The offence alleged against the appellants is under Section 304-B IPC which makes “demand of dowry” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the 1961 Act. It was argued on behalf of the appellants that mere demand of scooter or fridge would not be a demand for dowry. We find from the evidence on record that within a few days after the marriage, the deceased was tortured, maltreated harassed for not bringing the aforesaid articles in marriage. Hence the demand is in connection with marriage.
The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word “agreement” referred to in Section 2 has to be inferred on the facts and circumstances of each case.
The interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304-B IPC. It is not always necessary that there be any agreement for dowry.” Again in Hira Lal vs. State (Govt. of NCT), Delhi . 4 , it was observed as under :
8. Section 304-B IPC which deals with dowry death, reads as follows:
“304-B. 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 4 (2003) 8 SCC 80 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. Explanation.-For the purpose of this subsection, ‘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 provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
“113-B. 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, 1 Page 16 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 304-B of the Indian Penal Code (45 of 1860).”
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted.
As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption 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 the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B 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. 9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”.
The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined.
A reference to the expression “soon before” used in Section 114 Illustration
(a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
15. Having regard to the entirety of material, we do not find any ground to interfere with the concurrent finding recorded by the courts below that it was not a case of accidental death but a death taking place in circumstances other than normal. Thus, the presumption under Section 113B of the Indian Evidence Act has been rightly invoked and the offence against the appellant has been proved. There is no tangible circumstance to rebut the presumption.
17. For the above reasons, we do not find any merit in this appeal. The appeal is dismissed. The appellant who is on bail is directed to surrender to custody to undergo the remaining sentence.
…………….J. [V. GOPALA GOWDA]
…………….J. [ADARSH KUMAR GOEL]
NEW DELHI
September 26, 2014
Item No.1b-For Judgment Court No.13 Section IIB
Supreme Court of India
Record of Proceedings
Sultan Singh Vs. State of Haryana
[Criminal Appeal No(s). 1366/2010]
Date : 26/09/2014
This appeal was called on for JUDGMENT today.
For Appellant(s)
Mr. D.P. Singh, Adv.
Mr. Sanjay Jain,Adv.
For Respondent(s)
Mr. Manjit Singh, AAG
Mrs. Nupur Choudhary, Adv.
Mrs. Vivekta Singh, Adv.
Mr. Kamal Mohan Gupta,Adv.
Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice V.Gopala Gowda.
The appeal is dismissed in terms of the signed order.
VINOD KUMAR
MALA KUMARI SHARMA
COURT MASTER
COURT MASTER
Signed Reportable judgment is placed on the file
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