Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1142 of 2011, Judgment Date: Nov 19, 2014

                                                                  REPORTABLE




                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                        CRIMINAL APPEAL NO. 1142/2011




BALJINDER KAUR                                            ..Appellant




                                   Versus




STATE OF PUNJAB                                          ..Respondent



                               J U D G M E N T




R. BANUMATHI, J.




            This appeal arises out of judgment dated  11.08.2010  passed  by

Punjab and Haryana High Court in Criminal Appeal No.703-SB of 1999,  in  and

by which, the High Court confirmed the conviction of  the  appellants  under

Section 304B IPC and sentence of seven years rigorous  imprisonment  imposed

on the appellant- Baljinder Kaur (sister-in-law) and  second  accused-Pritam

Singh (husband) while acquitting father-in-law and mother-in-law.


2.          Briefly stated case of the prosecution is as  follows:  Marriage

of Sharanjit Kaur  (deceased)  was  solemnized  with  second  accused-Pritam

Singh in the month of January 1997.  Although PW-4 - Joginder Singh  (father

of the deceased) gave  sufficient  dowry  at  the  time  of  his  daughter’s

marriage, after two months of her marriage, the  deceased  told  her  father

and Harbans Singh-the mediator of marriage that  the  second  accused-Pritam

Singh and his family members were demanding dowry and harassing her.   About

two months after the marriage, the appellant-Baljinder Kaur  (sister-in-law)

demanded for a gold karra as dowry.  PW-4, the father of the deceased  could

not meet the demand of dowry, so he brought his daughter back to his  house.

 After one month, at the request of her in-law’s, Sharanjit  Kaur  was  sent

back to her husband’s house; but again after one month, she returned to  her

maternal house with the same demand of karra. Two days prior  to  her  death

i.e. on 24.08.1997,  second  accused-Pritam  Singh  took  her  back  to  the

matrimonial house. On 25.08.1997 at about  6.00  P.M.,  first  accused-Sohan

Singh came to the house of PW-4 and informed him about  deceased’s  illness.

Immediately, PW-4 along with Darshan Singh (PW-5) and Harbans  Singh  rushed

to the house of the accused and found  Sharanjit  Kaur  vomiting  and  in  a

critical condition.  The deceased stated that the  accused  had  beaten  her

and administered some poisonous substance to her.  PW-4 and others took  the

deceased to the hospital  at  Raikot,  but  she  died  on  the  way  to  the

hospital.


3.          PW-4 set the law in motion by lodging complaint on the next  day

i.e. 26.08.1997 at 11.00 A.M. with  sub-inspector  of     police  (PW-8)  at

Raikot.   On the basis of the  complaint,  FIR  No.  86  was  registered  on

26.08.1997 under Section 304B IPC.  Board of Doctors consisting of  PW-1-Dr.

Varinder Singh, Medical Officer and two other doctors conducted  autopsy  on

the body of deceased-Sharanjit Kaur, and opined that the cause of  death  of

the deceased was poisoning.  On  completion  of  the  investigation,  charge

sheet was filed against first accused-Sohan Singh  (father-in-law),  accused

   No.2 - Pritam Singh (Husband),  accused No.3-Surjit Kaur  (mother-in-law)

and accused No.4-Baljinder Kaur (sister-in-law) under Section 304B IPC.


4.          To  bring  home  the  guilt  of  the  accused,  prosecution  has

examined nine witnesses and exhibited documents and material  objects.    To

substantiate their defence the accused examined two defence witnesses.   The

accused were questioned under Section 313 Cr.P.C.  about  the  incriminating

evidence  and  materials  and  the  accused  denied  all  of   them.    Upon

consideration  of  evidence,  trial  court  found  the  accused  guilty  and

convicted all the four accused under Section 304B IPC and sentenced each  of

them to undergo rigorous  imprisonment  for  seven  years.   Aggrieved,  the

accused filed appeal before the High  Court.   Criminal  Revision  was  also

filed by PW-4, Joginder Singh, father of the  deceased  for  enhancement  of

sentence.  The appeal and the revision were disposed of by  an  order  dated

11.08.2010 whereby the  High  Court  dismissed  the  criminal  revision  and

confirmed the conviction of the appellant and Pritam Singh while  acquitting

father-in-law and  mother-in-law.  This  appeal  assails  the  legality  and

correctness  of  the  judgment  of  the  High  Court  affirming  appellant’s

conviction and the sentence of imprisonment imposed on her.


5.          Pritam Singh, husband of the deceased, had undergone the  entire

sentence of imprisonment imposed on him and the appeal preferred by him  was

dismissed as infructuous by separate order dated 5.11.2014.


6.           Learned  counsel  for  the  appellant  Mr.  Dinesh  Kumar  Garg

contended that the evidence of PWs 4 and 5 ought  to  have  been  considered

with care  and  caution  and  their  evidence  cannot  form  the  basis  for

conviction.  It was then contended that the appellant  was  already  married

about six years ago prior to the occurrence and was  having  three  children

and she was residing with her in-laws in village Diwana  at  a  distance  of

twenty kilometres away from her parental house and while so  she  could  not

have subjected the deceased to cruelty by demanding gold karra as dowry  and

the courts below erred in convicting the appellant under Section 304B IPC.


7.          Per contra,  learned  counsel  for  the  respondent-State,   Mr.

Sanchar Anand contended that from the evidence of PWs 4 and  5,  prosecution

has established the demand of gold karra by the  appellant  and  the  courts

below rightly convicted  the  appellant  under  Section  304B  IPC  and  the

concurrent findings recorded by the courts below warrant no interference.


8.          Before adverting to the merits of the contentions  advanced,  it

is necessary to  refer  to  the  alleged  ‘dying  declaration’  of  deceased

Sharanjit Kaur as it emerges from the version of PWs 4 and 5  and  lapse  of

investigation in this regard.   In their evidence, PWs 4 and 5  stated  that

on 25.8.1997 when they reached the house of the accused, Sharanjit Kaur  was

in a semi-conscious condition and she told PWs 4 and 5 that she  was  beaten

by the accused and  the  accused  administered  poison  to  her.   PW-4  had

mentioned about the alleged ‘dying declaration’ in his complaint also.


9.          In his evidence, even though PW-4 had stated  about  the  ‘dying

declaration’ of Sharanjit Kaur alleging that accused  have  beaten  her  and

administered poison,  FIR  was  registered  only  under  Section  304B  IPC.

Investigation was not focussed  in  the  direction  of  the  alleged  ‘dying

declaration’.  The investigating officer had  not  investigated  whether  in

the house of accused there was aluminium phosphide poison  which  is  stated

to be ‘pesticide’ and whether the accused could have administered poison  to

Sharanjit Kaur.   In our view, the investigation lacks  credibility  as  the

same was not focussed in the light of the contents of the complaint.


10.         The criminal investigation plays an important and  special  role

in the administration of criminal justice. The investigating  officer  plays

a pivotal role in the dispensation of criminal justice and  the  maintenance

of law and order.  Police investigation is therefore  the  foundation  stone

on which the entire edifice of the criminal law rests.  It is by the  action

of the investigating  officer  that  the  criminal  law  becomes  an  actual

positive force. Proper investigation is necessary for obtaining  a  complete

picture of all the relevant issues because it will provide  the  information

necessary  to  conduct  a  comprehensive  investigation.  Any  omission  and

commission by  the  investigating  officer  may  result  in  miscarriage  of

justice and prosecution results in acquittal.  Being  the  foundation  stone

of the prosecution, the investigating  officer  must  be  trained  to  adopt

proper techniques of investigation and scientific temper must be  inculcated

in them.  The investigation must be conducted  in  an  unbiased  manner  and

investigation must be with objectivity and  dispassionate  approach  to  men

and matters and the investigating officer must make a truthful  presentation

of the materials collected.   As noticed earlier, investigation of the  case

at hand lacks credibility.  Since occurrence was of the year  1997,  we  are

not inclined to go into the details of the lapses in the  investigation  and

issue any further direction.


11.         Be that as it may, let us consider the case of  the  prosecution

and the evidence as projected. Section 304B IPC defines ‘dowry  death’.   To

convict an accused under Section 304B IPC, the prosecution has to  establish

the following ingredients:-


(i)   The death of a woman should be caused by burns  or  bodily  injury  or

otherwise than under normal circumstances;


(ii)  Such a death must have occurred within seven years of her marriage;


(iii) Soon before  death,  she  must  have  been  subjected  to  cruelty  or

harassment by her husband or any relative of her husband;


(iv)  Such cruelty or harassment must 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.




12.         Section 113B of the Evidence Act is also relevant for  the  case

in hand.   Section 113B of the Evidence Act reads as under:-


“113B.  Presumption as to dowry death-   When  the  question  is  whether  a

person has committed the dowry death of a women and it is  shown  that  soon

before her death such woman has been subjected by such person to cruelty  or

harassment for, or in connection with,  any  demand  for  dowry,  the  Court

shall presume that such person had caused the dowry death.”




13.         As per the definition of ‘dowry death’ in Section 304B  IPC  and

the wording in Section 113B of the Evidence Act, it  is  necessary  to  show

that ‘soon before death’ the woman concerned had been subjected  to  cruelty

or harassment “for or in connection with the demand of dowry”.  On proof  of

the essentials mentioned therein, under Section 113B of  the  Evidence  Act,

it becomes obligatory on the Court to raise a presumption that  the  accused

caused the dowry death.


14.         The expression “soon before  death”  in  Section  304B  IPC  and

Section 113B of the Evidence Act was considered by this Court in  Hira   Lal

vs. State (Govt. of NCT)  Delhi;   2003   (8)  SCC  80  and  this  Court  in

paragraph (9) observed as under:-


“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 [pic]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.         In Kamesh Panjiyar alias Kamlesh Panjiyar vs.  State  of  Bihar,

(2005) 2 SCC 388, this Court considered the expression “soon  before  death”

and held as under:-


“……The expression ‘soon before’ is very relevant where Section 113-B of  the

Evidence Act and Section 304-B IPC are pressed into service. 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 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……”



The same view was expressed in Thakkan  Jha  &  Ors.  vs.  State  of  Bihar,

(2004) 13 SCC 348 and Baldev Singh vs. State of Punjab,  (2008) 13 SCC  233.



16.         The above decisions of this Court laid down the  proximity  test

i.e. there must be material to show that “soon before her death”  the  woman

was subjected to cruelty or harassment “for or in  connection  with  dowry”.

The facts must show the existence of  a  proximate  live  link  between  the

effect of cruelty based on dowry demand and the death of the victim.   “Soon

before death” is a relative term and no strait-jacket formula  can  be  laid

down fixing any time-limit.  The determination of the period which can  come

within the term “soon before death” is left to be determined by  the  Courts

depending upon the facts and circumstances of each case.


17.          In the light of the  above  principles,  let  us  consider  the

evidence adduced by the prosecution and examine  whether  the  courts  below

were right in convicting the appellant under Section 304B IPC.  PW-4  father

of the deceased has deposed that after the marriage,  Sharanjit  Kaur  lived

happily for about two months and  thereafter  the  appellant-Baljinder  Kaur

asked PW-4 to give gold karra as additional dowry and the same was  intended

for the husband of the appellant.   PW-4 could not give gold karra  and  had

taken back his daughter to  his  house.   After  about  one  month,  at  the

request  of  the  in-laws,  Sharanjit  Kaur  was  again  sent  back  to  the

matrimonial house and after about one month Sharanjit Kaur again  came  back

with the same demand of gold karra.   On  24.8.1997,  accused  Pritam  Singh

came and took back Sharanjit Kaur to the matrimonial house and the next  day

i.e. on 25.8.1997, Sharanjit Kaur died of poisoning. PW-5 Darshan Singh  had

also spoken about the demand of dowry by the appellant after two  months  of

the marriage.  On 25.8.1997, PWs 4 and 5 went to the house  of  the  accused

and Sharanjit Kaur was found in a critical condition and she told  them  she

was beaten by the accused.


18.         From the evidence of PWs 4 and 5,  it  emerges  that  about  two

months after the marriage there was demand of gold karra  by  the  appellant

and other  in-laws.   Learned  counsel  for  the  appellant  submitted  that

excepting this stray demand for gold karra, there is no  other  evidence  to

show  that  the  deceased  Sharanjit  Kaur  was  subjected  to  cruelty   in

connection with demand of dowry by the appellant.  It was submitted that  an

isolated instance of demand of  dowry  about  four  months  prior  to  death

cannot be said to constitute proximate live link to  the  death  to  sustain

the conviction of the appellant under Section 304B IPC.


19.         In our view, there is force in the  submission  of  the  learned

counsel  for  the  appellant.   In  cases  related  to  dowry   death,   the

circumstances showing the cruelty or harassment  are  not  restricted  to  a

particular instance, but normally  refer  to  a  course  of  conduct.   Such

conduct of cruelty or dowry harassment must be “soon before death”.    There

should be a perceptible nexus  between  her  death  and  the  dowry  related

harassment or cruelty inflicted on her.


20.         From the testimony of PW-4, it is  evident  that  the  appellant

demanded gold karra two months after the solemnization    of   marriage   of

the  deceased  and  the   demand   was    not    “soon  before  her  death”.

Excepting one stray instance  of  demand  of           dowry,  there  is  no

material on record to connect the appellant with the persistent  demand  for

dowry.  Admittedly, the appellant was married to  Jugraj  Singh  of  village

Diwana about six years prior to the solemnization of marriage  of  Sharanjit

Kaur with Pritam Singh. The appellant has got three children and  she  lives

in her in-law’s house in village Diwana.  DW-2 Nirmal Singh, a  resident  of

village Diwana and neighbour of the appellant had stated that the  appellant

resides in her in-law’s house at village Diwana and  denied  that  appellant

Baljinder Kaur often lives in village Burj Naklian in  her  father’s  house.



21.         There is no evidence showing any persistent dowry demand or  the

conduct of the appellant subjecting Sharanjit Kaur to cruelty or  harassment

for  or  in  connection  with  dowry.   About  twenty  days  prior  to   the

occurrence, when Sharanjit  Kaur  went  to  her  father’s  house,  she  only

generally stated about the dowry demand.   She had not  specifically  stated

about the demand of dowry by the appellant.  In their evidence PWs 4  and  5

have stated that on 25.8.1997, they went to the house  of  Pritam  Singh  in

village Burj Naklian, all the accused except appellant-Baljinder  Kaur  were

in the house.  After the alleged demand of gold karra two months  after  the

marriage, Sharanjit Kaur went to her house, again came back to  the  marital

house and again went to her father’s  house  and  again  came  back  to  the

marital house.  In our considered view, the alleged  demand  of  gold  karra

about two months after  the    marriage  cannot  be  said  to  constitute  a

proximate live link with the  death  of  deceased  Sharanjit  Kaur  and  the

conviction of the appellant under Section  304B  IPC  cannot  be  sustained.



22.         Even though there is no evidence that the deceased  was  treated

with cruelty or harassment in connection with  the  demand  of  dowry  “soon

before her death” by the appellant, in our view, evidence  on  record  makes

out an offence  under  Section  498A  IPC.  So  far  as  the  sentence,  the

occurrence was of the year 1997.  The appellant is  having  three  grown  up

children. The appellant has already  undergone  sentence  for  a  period  of

about fifteen months.   In the facts and circumstances  of  the  case,   for

the conviction under Section 498A, she is sentenced to undergo  imprisonment

already undergone.


23.         In the result, conviction of the appellant  under  Section  304B

IPC is set aside.  The appellant is convicted under  Section  498A  IPC  and

sentenced to undergo the period already undergone by  her.   The  appeal  is

partly allowed to the extent indicated above.  The  appellant  is  on  bail.

The bail bond shall stand discharged.




                                                              …………………………..J.

                                                               (T.S. Thakur)



                                                              …………………………..J.

                                                              (R. Banumathi)


New Delhi;

November 19, 2014