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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

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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

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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

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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

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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

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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

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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,

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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.

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