Page 1

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 1308 OF 2013     

Gurdip Singh … Appellant (s)   

Versus

State of Punjab … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

1. Close to be called a centenarian, the appellant is before us  

challenging  the  conviction  and  sentence  under  Sections  

498A/304B of the Indian Penal Code (45 of 1860) (hereinafter  

referred to as ‘IPC’).

2. Appellant  is  the  second  accused  in  Sessions  Case  No.  

41/1991 on the file of Additional Sessions Judge, Amritsar. First  

accused  is  his  son.  The  prosecution  case  as  succinctly  

summarized by the High Court  in  the impugned judgment  is  

extracted below:

“Harjit Kaur, daughter of Mohinder Singh was married  with Mohan Singh accused. Mohinder Singh along with  Hari  Singh  Sarpanch,  who  was  his  brother  from  the  

1

REPORTABLE

Page 2

brotherhood, had gone to village Gharyala  to  see his  daughter Harjit Kaur because the in-laws of Harjit Kaur  were in  the habit  of  picking up quarrels  with  her  for  bringing less dowry. The in-laws of Harjit Kaur used to  pressurize her  to bring scooter,  refrigerator  and cash  from her  parents.  On her  failure to do so, they after  conspiring  with  each  other,  threatened  to  kill  her  by  giving some poisonous substance. Gurdip Singh, father- in-law of Harjit Kaur, on many occasions told Harjit Kaur  that in case she failed to bring the above said articles  before Rabi crop, then after murdering her, he will re- marry his son. This fact was disclosed to Mohinder Singh  by Harjit  Kaur on many occasions but he ignored the  same with the hope that Harjit Kaur may settle in her in- laws house.  

The  prosecution  story  further  is  that  on  6.4.1990,  Mohinder Singh along with Hari Singh had gone to the  residential farm house of Mohan Singh accused here the  dead body of Harjit Kaur was lying on the ground. No  one  was  present  in  the  house.  Mohinder  Singh  suspected that his daughter Harjit Kaur had consumed  some  poisonous  substance  out  of  frustration  or  the  accused have murdered her by administering her some  poisonous substance. Hari  Singh was deputed to look  after the dead body.

Mohinder Singh made his statement before the police  on 6.4.1990 on the basis of which the present case was  registered.

2

Page 3

The investigation in the case was conducted and after  the completion of investigation, challan was presented  against the appellants in the Court.

The accused were charge-sheeted under Sections  498- A/304-B  IPC  to  which  they  pleaded  not  guilty  and  claimed trial.

To  substantiate  the  charge  against  the  accused,  the  prosecution examined PW-1 Mohinder Singh, PW-2 Hari  Singh,  PW-3 Gurcharan  Singh,  PW-4 Rishi  Ram,  PW-5  ASI Gulbag Singh, PW-6 Harbhajan Singh, PW-7 SI Amrik  Singh and PW-8 Dr. Ram Krishan Sharma.”

3. The  Sessions  Court  convicted  both  the  accused  under  

Section 498A of IPC for rigorous imprisonment for a period of  

two years and fine of Rs.500/- each and, in default of payment  

of fine, for another three months, and under Section 304B of IPC  

for rigorous imprisonment for a period of ten years and fine of  

Rs.500/-  each and, in default of payment of fine, for another  

three months. The sentences were ordered to run concurrently.  

The  High  Court,  in  appeal,  maintained  the  conviction  but  

reduced the sentence under Section 304B of IPC to seven years  

rigorous imprisonment and confirmed the rest.

4. It is reported that the husband-first accused Mohan Singh  

is no more.

3

Page 4

5. “Dowry death” in the Indian Penal  Code was introduced  

under  Section  304B  as  per  Act  43  of  1986.  Under  the  said  

provision, if a married woman dies,

(i) on account of burns or bodily injury or dies otherwise than  under normal circumstances,

(ii) such death occurs within seven years of marriage, (iii) it  is  shown  that  she  was  subjected  to  cruelty  or  

harassment by her husband or any relative, (iv) such cruelty or harassment be soon before her death and (v) such cruelty or harassment by the husband or his relative  

be or for or in connection with demand for dowry,

such death is called dowry death under Section 304B of IPC and  

the husband or relative shall be presumed to have caused the  

dowry death.  Section  498A  of  IPC  deals  with  the  offence  of  

cruelty  by  the  husband  or  relative.  If  a  married  woman  is  

subjected to cruelty by the husband or his relative, he is liable  

for  conviction  under  Section  498A.  There  is  no  requirement  

under  Section 498A that  the  cruelty  should  be  within  seven  

years  of  marriage.  It  is  also  not  invariably  necessary  under  

Section 498A that the cruelty should be in connection with the  

demand for dowry. It is interesting to note that Section  498A  

was  introduced  as  per  Act  46  of  1983 to  “suitably  deal  

effectively not only with cases of dowry deaths but also cases of  

cruelty to married women by their in-laws” and Section  304B  

4

Page 5

was  introduced  as  per  Act  43  of  1986 to  make  the  penal  

provisions “more stringent and effective”.

(Emphasis supplied)

6. In this context, the background for the amendments would  

be a relevant reference. In the 91st Report on Dowry Deaths and  

Law Reform submitted by Justice K. K. Mathew, Chairman, Law  

Commission of India, on 10.08.1983, it is stated at Paragraphs  

1.3 to 1.5 as follows:

“1.3 If, in a particular incident of dowry death, the facts  are such as to satisfy the legal ingredients of an offence  already  known to  the  law,  and  if  those  facts  can  be  proved without much difficulty, the existing criminal law  can be resorted to for bringing the offender to book. In  practice, however, two main impediments arise-

(i) either the facts do not fully fit into the pigeon-   hole of any known offence: or

(ii) the peculiarities of the situation are such    that proof of directly incriminating facts is  thereby rendered difficult.

The  first  impediment  mentioned  above  is  aptly  illustrated by the situation where a woman takes her life  with her own hands, though she is driven to it  by ill- treatment. This situation may not fit into any existing  pigeon-hole  in  the  list  of  offences  recognized  by  the  general criminal law of the country, except where there  is definite proof of instigation, encouragement or other  conduct that amounts to “abetment” of suicide. Though,  according  to  newspaper  reports,  there  have  been  judgments  of  lower  courts  which  seem  to  construe  “abetment” in  this context widely, the position is not  beyond doubt.

5

Page 6

The  second  situation  mentioned  above  finds  illustration in those incidents in which even though the  circumstances raise a strong suspicion that the death  was not accidental, yet, proof beyond reasonable doubt  may not be forthcoming that the case was really one of  homicide. Thus, there is need to address oneself to the  substantive  criminal  law  as  well  as  to  the  law  of  evidence.

1.4 Speaking  of  the  law  of  evidence,  it  may  be  mentioned that  one of  the  devices  by which the  law  usually tries to bridge the gulf  between one fact  and  another,  where  the  gulf  is  so wide that  it  cannot  be  crossed with the help of the normal rules of evidence, is  the device of inserting presumptions. In this sense, it is  possible to consider the question whether, on the topic  under discussion, any presumption rendering the proof  of facts in issue less difficult, ought to be inserted into  the law.  

1.5 Coming to substantive criminal law, if a deficiency  is found to exist in such law, it can be filled up only by  creating a new offence. Before doing so, of course, the  wise  law  maker  is  expected  to  take  into  account  a  number of aspects, including the nuances of ethics, the  ever-fluctuating winds of public opinion, the Demands of  law enforcement and practical realities.”

(Emphasis supplied)

7. Though  the  expression  “presumed”  is  not  used  under  

Section 304B of IPC, the words “shall be deemed” under Section  

304B carry, literally and under law, the same meaning since the  

intent and context requires such attribution. Section 304B of IPC  

on dowry death and Section 113B of the Indian Evidence Act,  

1872, on presumption, were introduced by the same Act, i.e.,  

Act 43 of 1986, with effect from 19.11.1986, and Section 498A  

6

Page 7

of IPC and Section 113A of the Evidence Act were introduced by  

Act 46 of 1983, with effect from 25.12.1983.  

8. The  amendments  under  the  Evidence  Act  are  only  

consequential to the amendments under the Dowry Prohibition  

Act, 1961 and the Indian Penal Code. It  is significant to note  

that  under  Section  113A,  the  expression  is  “court  may  

presume” whereas under Section 113B, the expression is “court  

shall presume”. The Parliament did intend the provisions to be  

more stringent and effective in view of the growing social evil as  

can be seen from the Statement of Objects and Reasons in the  

amending Act.  

9. Being a mandatory presumption on the guilty conduct of  

an accused under Section 304B, it is for the prosecution to first  

show the availability of all the ingredients of the offence so as  

to shift  the burden of proof in terms of Section 113B of the  

Evidence  Act.  Once  all  the  ingredients  are  present,  the  

presumption of innocence fades away. Yet another reference to  

Paragraph 1.8 in the 91st Report of the Law Commission of India  

would be fruitful in this context:  

“1.8. Those who have studied crime and its incidence  know that once a serious crime is committed, detection  is a difficult matter and still more difficult is successful  prosecution of the offender. Crimes that lead to dowry  deaths are almost invariably committed within the safe  

7

Page 8

precincts  of  a  residential  house.  The  criminal  is  a  member of the family: other members of the family (if  residing in the same house) are either guilty associates  in crime, or silent but conniving witnesses to it. In any  case, the shackles of the family are so strong that truth  may not  come out  of the chains.  There would be no  other eye witnesses, except for members of the family.”

(Emphasis supplied)

10. Having  carefully  gone  through  the  entire  evidence  as  

appreciated  by both  the  Sessions Court  as  well  as  the  High  

Court, we are not inclined to take a different view except on one  

aspect,  viz.,  the  date  of  marriage.  As  far  as  other  aspects  

regarding cruelty or harassment are concerned, it has clearly  

been  proved  in  the  evidence  of  PW-1  and  PW-2  that  the  

appellant/accused was also taunting the deceased demanding  

dowry. They were all staying in the same premises. The issue  

had  also  been  brought  before  the  Village  Panchayat  many  

times. The deceased was even sent out from her matrimonial  

home on this account. There is also evidence that the deceased  

had been harassed by both accused before two weeks of her  

death. Yet with all these, for conviction under Section 304B of  

IPC, it is obligatory on the part of the prosecution to establish  

that the death occurred within seven years of marriage. Sans  

the requirement of seven years, in this case, the offence would  

fall only under Section 498A of IPC. And for that matter, sans  

8

Page 9

any  of  the  five  ingredients  discussed  at  Paragraph  6  above  

herein,  the  offence  will  fall  out  of  Section  304B  of  IPC.  The  

Sessions Court,  unfortunately,  has  not  addressed this  crucial  

aspect and has gone only on assumptions with regard to the  

date of marriage. It has to be noted that the deceased had two  

children,  the  son  had  died  earlier  and  there  is  a  surviving  

daughter who is stated to be around seven years. Whether the  

said age of the daughter is at the time of evidence or at the  

time of the death of the deceased, is not clear. Neither PW-1,  

father of the deceased nor PW-2 Sarpanch or any other witness  

has given any evidence with regard to the date of marriage. No  

document whatsoever has been produced with regard to the  

marriage. There is no evidence even with regard to the date of  

birth  of  the  children.  Also,  according  to  PW-1  father  of  the  

deceased, the marriage had taken place five to seven years  

back. It has to be noted that DW-1 elder devrani/sister-in-law of  

the deceased had stated in her evidence that the marriage had  

taken place around eleven years back. Nobody has even spoken  

on the exact date of marriage. The death reportedly took place  

on 06.04.1990. The evidence was recorded in 1996. The High  

Court counted the eleven years from the date of recording of  

the evidence. However, on going through the evidence, it is not  

9

Page 10

at all clear as to whether the same is with respect to the date of  

tendering evidence or with respect to the date of the incident.  

In  view of  the  mandatory  presumption  of  law under  Section  

304B of IPC/113B of the Evidence Act, it  is obligatory on the  

part  of  the  prosecution to establish  that  the  death  occurred  

within seven years of marriage.  Section 304B of IPC permits  

presumption  of  law  only  in  a  given  set  of  facts  and  not  

presumption of fact. Fact is to be proved and then only, law will  

presume. In the instant case, prosecution has failed to establish  

the crucial  fact on the death occurring within seven years of  

marriage.  

11. Hence, we set aside the conviction of the appellant under  

Section  304B  of  the  Indian  Penal  Code  (45  of  1860).  The  

conviction under Section 498A of the Indian Penal Code (45 of  

1860) is confirmed. However, taking note of the late evening  

age of the appellant, the substantive sentence is limited to the  

period undergone by him during the investigation/trial.

12. The appeal is allowed as above.  

……………………………….…..…………J.                (SUDHANSU JYOTI  

MUKHOPADHAYA)

10

Page 11

……….………...……..……………………J.          (KURIAN JOSEPH)

New Delhi; September 3, 2013.    

11