BALJINDER KAUR Vs. STATE OF PUNJAB
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