GURDEEP SINGH Vs STATE OF PUNJAB .
Bench: HARJIT SINGH BEDI,GYAN SUDHA MISRA, , ,
Case number: Crl.A. No.-001085-001085 / 2003
Diary number: 17524 / 2002
Advocates: ABHISHEK ATREY Vs
KULDIP SINGH
Crl.A. No. 1085 of 2003 REPORTABLE 1
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1085 OF 2003
GURDEEP SINGH ..... APPELLANT
VERSUS
STATE OF PUNJAB & ORS. ..... RESPONDENT
O R D E R
1. This appeal arises out of the following facts:
1.1 The appellant Gurdeep Singh was the husband of
the deceased Rajender Kaur. The couple had got married
on the 14th of October, 1989 and it is the case of the
prosecution that a substantial amount of money far
beyond the means of the bride's family had been spent at
that time though the appellant, his parents, sisters and
other relatives remained dissatisfied. It appears that
the demands for dowry continued unabated and about one
year before the death the appellant demanded a sum of
`25,000/- for the purchase of a motorcycle, and this
amount was indeed handed over to the appellant but was
utilised for purchasing a plot instead. It is further
Crl.A. No. 1085 of 2003 REPORTABLE 2
the prosecution story that despite having received the
aforesaid amount, the deceased continued to suffer at
the hands of her husband and his relatives and that
despite the efforts of a panchayat in the matter no
suitable result followed. It is further the prosecution
story that the appellant and his relatives administered
poison to Rajinder Kaur on the 27th July, 1995 which
caused her death and that three days thereafter
information was received by Gurdev Singh P.W. 2, her
brother, and Satnam Singh, P.W. 3 her father on which
they alongwith others rushed to the matrimonial home of
Rajinder Kaur but found that the dead body had been
hurriedly cremated. Gurdev Singh P.W.2 thereupon gave
an application Exhibit PB to the Station House Officer,
Police Station, Gidderbaha and on its basis a daily
diary entry was recorded and after a preliminary probe,
a First Information Report for offences punishable under
Section 304B and 498A IPC was registered on the 8th
August, 1995. After investigation, Gurdeep Singh, the
appellant herein, his brothers, Harbhajan Singh and
Daljit Singh, parents, Jit Singh and Satnam Kaur, and
sisters Darshan Kaur and Daljit Kaur were brought to
trial for the aforesaid offences. The trial court vide
its judgment dated 15th July, 2000, found the charge
under Section 304B proved against the appellant, Jit
Crl.A. No. 1085 of 2003 REPORTABLE 3
Singh and Satnam Kaur and the three were, accordingly,
sentenced to undergo rigorous imprisonment for ten
years. The trial court, however, gave the benefit of
doubt to Harbhajan Singh, Daljit Singh, Darshan Kaur and
Daljit Kaur and acquitted them of the charge. The
matter was thereafter taken in appeal by the convicted
accused, and the High Court, has, by the impugned
judgment dismissed the appeal of Gurdeep Singh and
allowed the appeal of Jit Singh and Satnam Kaur. The
solitary appellant now before us is Gurdeep Singh.
2. Mr. Sudhir Walia, the learned counsel for the
appellant has raised several arguments before us during
the course of the hearing. He has first pointed out
that the presumption under Section 113B of the Indian
Evidence Act could be drawn with respect to a dowry
death only if the ingredients of Section 304B of the
Indian Penal Code were spelt out and in the light of the
uncertain evidence that had come on record, more
particularly, as there was no evidence of an unnatural
death or demands being made for dowry or other articles
soon before the death, the said provision was
inapplicable. It has also been pointed out that the
prosecution story that `25,000/- had been spent to buy a
plot was on the face of it wrong in the light of the
documentary evidence proved by D.W. 2 Ram Chand, an
Crl.A. No. 1085 of 2003 REPORTABLE 4
employee of the bank who deposed to the effect that a
sum of `93,000/- had been withdrawn from the bank on the
27th of July, 1994, and the statement of DW 4-
Pushpinder Singh, Junior Assistant, Tehsil Office,
Gidderbaha from the Sub-Registrar's office who deposed
that a sale deed for a plot priced at `54,000/- had been
executed and as such the facts indicated that the entire
amount for the sale had come from the account of Gurdeep
Singh the appellant herein. He has, accordingly,
pointed out that there was no evidence with respect to
any demand being made soon before the death. The
learned counsel has also placed reliance on a judgment
of this Court in Suresh Kumar Singh v. State of Uttar
Pradesh (2009) 17 SCC 243. He has, in addition, argued
that the prosecution story that P.W. 2, P.W. 3 and other
relatives had not been called to attend the cremation
was in clear contradiction vis-á-vis their statements
recorded under Section 161 Cr.P.C. and the evidence in
Court and that this contradiction had been pointed out
during the course of the cross examination. In the
alternative, it has been submitted that assuming for a
moment that no statements of P.Ws. 2 and 3 under
Section 161 Cr.P.C. had been recorded, as deposed by
them in their evidence, the prosecution would still not
gain any advantage as a statement recorded in Court for
Crl.A. No. 1085 of 2003 REPORTABLE 5
the first time would have very limited evidentiary
value.
3. Mr. Kuldip Singh, learned counsel for the State
has, however, supported the judgment of the trial court
and the High Court and has submitted that as the
deceased was a young woman,a presumption had to be drawn
that she had died an unnatural death and as such the
provisions of Section 113B of the Evidence Act would be
applicable to the facts of the case.
4. We have heard the learned counsel very carefully
and have gone through the record.
5. We first find that the evidence with respect to
the appellant Gurdeep Singh is almost identical with
that of the six accused who have been acquitted of the
same charge – two by the High Court and four by the
trial court and he appears to have been singled out as
being the husband. We first take up the argument
relating to Section 304B and the presumption drawn under
Section 113B. A bare reading of Section 304B pre-
supposes several factors for its applicability, they
being:- (i) death should be of burns or bodily injury or
has occurred otherwise than under normal circumstances:
(ii) within seven years of the marriage; and (iii) that
soon before her death she had been subjected to cruelty
or harrassment by her husband or her relatives. This
Crl.A. No. 1085 of 2003 REPORTABLE 6
Court in Suresh Kumar Singh's case supra has held that
even if one of the ingredients is not made out, the
presumption under Section 113B of the Evidence Act would
not be available to the prosecution and the onus would
not shift to the defence.
6. We find in the present case that there is no
evidence of unnatural death. It is the prosecution
story that the deceased had been poisoned. It has,
however, come in the evidence, and in particular, in the
report of the Forensic Science Laboratory dated 21st
August, 1995, that on an analysis of the bones and ashes
no poisonous substance had been found to be present. In
this view of the matter, the mere fact that the deceased
happened to be a young woman would not lead to the
inference that she had died an unnatural death.
Likewise, we find that the evidence of demand for dowry
or goods soon before death is also lacking. Admittedly,
the only evidence of any demand was of Rs. 25,000/- made
one year prior to the incident and as per the defence
evidence of D.W. 2 and D.W. 4, the money for the
execution of the sale deed had been taken out from the
bank a day earlier. In the light of these two factors
it has been held in paragraph 25 of the above cited case
as under:
Indisputably, in order to attract Section 304B, it is imperative on the part
Crl.A. No. 1085 of 2003 REPORTABLE 7
of the prosecution to establish that the cruelty or harassment has been meted out to the deceased `soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as `proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim.”
7. We, therefore, find that evidence clearly fails
the proximity test as laid down in the aforesaid
judgment.
8. The courts below have, however, drawn a
presumption against the accused primarily on the plea
that they had not informed the parents of the deceased
that she had died and had hurriedly cremated her dead
body. We further see from the evidence of P.Ws. 2 and 3
that in their statements recorded in Court they did say
that they had received no information about the death on
which they had been confronted with their statements
recorded under Section 161 of the Cr.P.C. in which they
had stated that they had indeed been present when the
cremation had taken place. In order to explain this
contradiction both these witnesses disowned their 161
statements and testified that they had not made any
statement to the police. These statements are, however,
falsified by the evidence of P.W. 4 ASI Gurmel Singh,
Crl.A. No. 1085 of 2003 REPORTABLE 8
the police officer concerned, who deposed that the
police statements had been recorded by him as per the
dictates of the two witnesses. In the alternative,
even assuming that no statements of P.Ws. 2 and 3 had
been recorded under Section 161 Cr.P.C. this factor
destroys the substratum of the prosecution story in a
far greater measure as it must then be taken that their
statements were being recorded for the first time in
Court which would rob them of much of their evidentiary
value. In this case, we find that the two witnesses
are none other than the brother and the father of the
deceased.
9. We are, therefore, of the opinion that as a
result of the cumulative discussion above, the appellant
has to succeed. We, accordingly, allow this appeal, set
aside the judgments of the courts below insofar as he is
concerned and order his acquittal. Bail bonds stand
discharged.
.....................J [HARJIT SINGH BEDI]
......................J [GYAN SUDHA MISRA]
NEW DELHI AUGUST 25, 2011.
Crl.A. No. 1085 of 2003 REPORTABLE 9