IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 476 OF 2005
TARSEM SINGH … APPELLANT
STATE OF PUNJAB … RESPONDENT
Appellant was prosecuted for committing murder of his mom Amriko. They were married in a year 1983. Appellant was employed in a Army as a Naik. Indisputably, a kin of a defunct came from a reduce strata of a society. They were really poor. The father of a defunct was operative as a Mate in a Canal Department during Jaura Kothi. They were not in a position to give sufficient dowry to their daughter. At a time of marriage, they had given usually few items, such as, utensils, beddings, garments etc. After a matrimony also, they had not been means to give anything to a defunct Amriko by approach of dowry or otherwise.
Allegedly, on a belligerent that deficient dowry had been brought by a deceased, she was tortured. The nuisance increasing as she was incompetent to bear a child. She used to be thrown out of a house. However, she used to be sent behind by her parents. Her revisit to a matrimonial home, when appellant visited a encampment on receiving leave, was mandatory. Some disputes seemed to have arisen as to possibly a appellant himself on all a occasions should revisit her parents’ residence to move her behind to a matrimonial home. On many of a occasions, a father of a appellant used to go to their place and move her back.
A few days before to a date of occurrence, appellant is pronounced to have addressed a few letters, dual of that were remarkable as Exhibits PJ and PH respectively; one of them was in ‘Gurumukhi’ language, a other being in English vernacular.
One minute was addressed by a appellant to his father and another that is in Gurumukhi book was addressed to a brother-in-law of a deceased. The common hazard in both a letters appears to be that a appellant was reluctant to keep a defunct with him. It was settled that during his revisit she should come herself or her kin contingency get her there.
Indisputably again, a defunct had mostly been staying with her parents. Ten days before to a date of occurrence, a defunct came to her residence and disclosed that Tarsem Singh had combined a minute to her kin seeking them to spin her out of a residence or differently he would kill her. However, as appellant was to come home on leave, Harnam Singh, father of a appellant, came to her parents’ place. When asked to concede Amriko to go with her, an confinement was voiced by PW-5-Dato (mother of a deceased) in courtesy to a pronounced minute and voiced her rejection to concede Amriko to go with him. She insisted that she would send Amriko usually with Tarsem Singh. However, on declaration by Harnam Singh that no such melancholy minute had been perceived and he treats her as his possess daughter, she was authorised to go with him. After a few days, Sukhwinder Singh, hermit of a defunct was sent to enquire about a gratification of Amriko and to find out possibly Tarsem Singh had come on leave or not. He left his residence during 11.00 a.m. though he came behind some time afterward to surprise his mom that Amriko had been murdered by her in-laws. At about 4.00 p.m., a First Information Report (FIR) was lodged opposite Parmjit Kaur, Manjit Kaur, sisters of appellant, Mohinder Singh, cousin of appellant and Tarsem Singh, appellant.
2. Before a schooled Sessions Judge, charges underneath Section 302 and in a choice underneath Section 304B of a Indian Penal Code were framed.
3. All a 4 indicted were found guilty for a offences punishable underneath Section 304-B of a Indian Penal Code and convicted by a schooled Sessions Judge. The High Court, however, while dismissing a interest elite by a appellant available a visualisation of exculpation in foster of Parmjit Kaur, Manjit Kaur and Mohinder Singh.
4. Mr. Mahabir Singh, schooled Senior Counsel appearing on interest of a appellant would contention that a schooled Sessions Judge as also a High Court committed a critical blunder in flitting a impugned judgments of self-assurance and visualisation insofar as they unsuccessful to take into care that conjunction in a FIR nor in a justification of PW-5, any claim was finished to a outcome that any dowry was demanded by a appellant. It was urged that in any perspective of a matter as a assign had not been means to uncover that any dowry was demanded shortly before a elect of a offence, a impugned visualisation is probable to be set aside.
5. Mr. Kuldip Singh, schooled Counsel appearing on interest of a State, however, upheld a impugned judgment.
6. Before us, a translated chronicle of a FIR has been constructed by Mr. Mahabir Singh to uncover that no claim as regards direct of dowry had been finished opposite a appellant. However, Mr. Kuldip Singh contended that on reading of a FIR in a entirety it would seem that after a name of Tarsem Singh, a names of his parents, namely, Harnam Singh and Parsin Kaur had been mentioned and, thus, it is transparent that all of them had been ill-treating Amriko for non-bringing of sufficient dowry and not temperament a child. The schooled Counsel appears to be correct.
7. It is, therefore, not scold to contend that FIR does not enclose any matter of cruelty or nuisance of a defunct for non-bringing of dowry. The matrimony took place in a year 1983. The occurrence took place on 18.3.1987. The passed physique was found in a matrimonial home of a deceased.
The autopsy news showed that a following injuries were beheld on a chairman of a deceased:
“1. An erosion 1 cm x .5 cm benefaction on a left cheek. On ratiocination wound was skin deep.
2. A bluish contusion 3 cm x 2 cm benefaction on a behind of left wrist joint.”
3. On ratiocination underlying skin and muscles were normal and underlying bone was not fractured.”
8. It is not in brawl that genocide of Amriko took place due to expenditure of organo phosphorus compound. Endocel, that is an bomb of a chloroco devalue group, was recovered. It is now not in brawl that Amriko died of immoderate phosphorus compound.
9. Before embarking on serve discussions on this issue, we competence place on record that a appellant examined Niranjan Dass as DW-1, who is pronounced to have examined a defunct before her death. He found her to be pang from pain in her chest and breathlessness. According to him, she was pang from pneumonia. Some medicines were allegedly prescribed for a pronounced disease. Whether any medicine was administered to her or not is not clear. Although there are doubts about a sincerity of a pronounced statement, a fact that a appellant and his family attempted to disguise a reason for a genocide of a defunct is of some significance.
10. The materials on record are not sufficient to move home a charges underneath Section 304B of a Indian Penal Code.
Section 304B of a Indian Penal Code reads as under:
“304B. Dowry death—(1) Where a genocide of a lady is caused by any browns or corporeal damage or occurs differently than underneath normal resources within 7 years of her matrimony and it is shown that shortly before her genocide she was subjected to cruelty or nuisance by her father or any relations of her father for, or in tie with, any direct for dowry, such genocide shall be called “dowry death”, and such father or relations shall be deemed to have caused her death.
Explanation.—For a purpose of this sub-section, “dowry” shall have a same clarification as in Section 2 of a Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry genocide shall be punished with seizure for a tenure that shall not be reduction than 7 years though that competence extend to seizure for life.”
The essential mixture of a pronounced corruption are: (i) genocide of a lady contingency have been caused by any browns or corporeal damage or differently than underneath normal circumstances; (ii) such genocide contingency have been occurred within 7 years of marriage; (iii) shortly before her genocide she was subjected to cruelty or nuisance by her father or relations of her husband; (iv) such cruelty or nuisance contingency be in tie with a direct of dowry; and (v) such cruelty is shown to have been meted out to a lady shortly before her death.
Explanation appended to Section 304B defines dowry to have a same clarification as contained in Section 2 of a Dowry Prohibition Act, 1961, that reads as under:
“2. Definition of `dowry’.—In this Act, “dowry” means any skill or profitable confidence given or concluded to be given possibly directly or indirectly—
(a) by one celebration to a matrimony to a other celebration to a marriage; or
(b) by a kin of possibly celebration to a matrimony or by any other person, to possibly celebration to a matrimony or to any other person, during or before or any time after a matrimony in tie with a matrimony of a pronounced parties, though does not embody dower or mahr in a box of persons to whom a Muslim Personal Law (Shariat) applied.”
11. Parliament has extrinsic Section 113B in a Evidence Act, that reads as under:
“113B. Presumption as to dowry death. —When a doubt is possibly a chairman has committed a dowry genocide of a lady and it is shown that shortly before her genocide such lady has been subjected by such chairman to cruelty or nuisance for, or in tie with, any direct for dowry, a Court shall assume that such chairman had caused a dowry death.
Explanation.—For a functions of this Section “dowry death” shall have a same clarification as in Section 304B of a Indian Penal Code (45 of 1860)”
12. The prerequisite for insertion of a dual supplies has been abundantly settled by a Law Commission of India in a 21st Report antiquated 10.8.1988 on “Dowry Deaths and Law Reform”.
Keeping in perspective a impediments in a pre-existing law in securing justification to infer dowry-related deaths, a Parliament in a knowledge suspicion to insert a sustenance relating to supposition of dowry genocide on reason of certain essentials.
It is in this credentials that a sustenance of unreserved justification by approach of Section 113B in a Evidence Act has been inserted.
As per a clarification of “dowry death” in Section 304B, IPC and a diction in a unreserved sustenance of Section 113B of a Evidence Act, one of a essential ingredients, among others, is that a ‘woman’ contingency have been “soon before her death” subjected to cruelty or nuisance “for, or in tie with, a direct for dowry”.
Presumption in terms of Section 113B is one of law. On reason of a essentials mentioned therein, it becomes claim on a Court to lift a supposition that a indicted caused a dowry death. The supposition shall be lifted usually on reason of a following essentials:
(1) The doubt before a Court contingency be possibly a indicted has committed a dowry genocide of a woman. (This means that a supposition can be lifted usually if a indicted is being attempted for a corruption underneath Section 304B, IPC.)
(2) The lady was subjected to cruelty or nuisance by her father or his relatives.
(3) Such cruelty or nuisance was for, or in tie with, any direct for dowry.
(4) Such cruelty or nuisance was shortly before her death.
13. Harassment caused to a defunct was on 3 counts:
1. Insufficient dowry;
2. Inability to bear a child; and
3. Insistence by her kin that any time appellant contingency go to her parents’ residence for bringing her back.
14. It appears that FIR (Exhibit-PF/2) lodged by PW-5 emphasizes on dual reasons of harassment, namely, (1) formerly on a stratagem of bringing in deficient dowry, and (2) afterward for not temperament a child.
15. There is, thus, zero on record to uncover that any direct of dowry was finished shortly before her death. The means of movement for committing a corruption appears to be an ego problem on a partial of a appellant, namely, a defunct had not been entrance to her matrimonial home on her own, while he had been entrance to his home on leave.
The High Court also in a visualisation recorded:
“It is valid from a justification of PW-1 Dr. Manjit Singh that a genocide of Amriko had taken place due to expenditure of Organo Phosphorus Compound. The assign has led justification to infer that Endocel was got recovered by Parmjit Kaur, appellant, by creation a avowal statement. According to a Chemical report, Ex. PN, Endocel is an bomb of a chloroco devalue group. Thus, this poison has not been consumed by Smt. Amriko and as such, it can't be pronounced that Parmjit Kaur or other appellants had given this poison forcibly to Smt. Amriko. The justification shows that Smt. Amriko used to reside many of a time with her mom and whenever Tarsem Singh visited his residence on leave from a Army, afterwards he used to take Amriko from a residence of her mom to a matrimonial home. The letter, Ex. PH, shows that Tarsem Singh was depressed of a fact that he had to go to take Amriko from a residence of her mother. He had also finished transparent that he would not keep Smt. Amriko any more. Thus, it was Tarsem Singh, appellant, alone who used to harass her. The other reason contingency be for badgering her was that she was not means to bear a child.
The statements of PW-5 Smt. Dato and PW-7 Sukhwinder Singh uncover that they have not settled in their military statements privately that a appellants solely Tarsem Singh used to harass her on comment of dowry or that she was incompetent to bear a child. The really fact that Harnam Singh, father of Tarsem Singh, had taken her from a residence of her mom about 8-10 days before to a attainment of Tarsem Singh suggests that kin of Tarsem Singh wanted to keep her.”
16. What a High Court unsuccessful to notice in nearing during a pronounced commentary is that no justification was brought on record to uncover that a cruelty or nuisance was meted out to her for bringing deficient dowry, in deficiency whereof a mixture of Section 304B of a Indian Penal Code can't be pronounced to have been proved. The authorised novella sought to be combined contingency be lifted usually on achievement of a conditions fashion therefor. All a claim mixture of a corruption contingency be brought home before a unreserved justification is put to use by a Court for holding a indicted guilty of an corruption underneath Section 304B of a Indian Penal Code.
17. In Hira Lal Ors. v. State (Govt. of NCT), Delhi, II (2003) DMC 206 (SC)=IV (2003) SLT 594=105 (2003) DLT 705 (SC)=(2003) 8 SCC 80, this Court held:
“9. A conjoint reading of Section 113-B of a Evidence Act and Section 304-B, IPC shows that there contingency be element to uncover that shortly before her genocide a plant was subjected to cruelty or harassment. The assign has to sequence out a probability of a healthy or random genocide so as to move it within a reach of “death occurring differently than in normal circumstances”. The countenance “soon before” is really applicable where Section 113-B of a Evidence Act and Section 304-B, IPC are pulpy into service. The assign is thankful to uncover that shortly before a occurrence there was cruelty or nuisance and usually in that box supposition operates. Evidence in that courtesy has to be led by a prosecution. “Soon before” is a relations tenure and it would count on a resources of any box and no pickle coupler regulation can be laid down as to what would consecrate a duration of shortly before a occurrence. It would be dangerous to prove any bound period, and that brings in a significance of a vicinity exam both for a reason of an corruption of dowry genocide as good as for lifting a supposition underneath Section 113-B of a Evidence Act. The countenance “soon before her death” used in a concrete Section 304-B, IPC and Section 113-B of a Evidence Act is benefaction with a thought of vicinity test. No clear duration has been indicated and a countenance “soon before” is not defined. A anxiety to a countenance “soon before” used in Section 114 Illustration (a) of a Evidence Act is relevant. It lays down that a Court competence assume that a male who is in a possession of products “soon after a theft, is possibly a burglar or has perceived a products meaningful them to be stolen, unless he can comment for their possession”. The integrity of a duration that can come within a tenure “soon before” is left to be dynamic by a Courts, depending on contribution and resources of any case. Suffice, however, to prove that a countenance “soon before” would routinely indicate that a interlude should not be most between a cruelty or nuisance endangered and a genocide in question. There contingency be existence of a present and live couple between a outcome of cruelty formed on dowry direct and a genocide concerned. If a purported occurrence of cruelty is remote in time and has turn seared adequate not to disquiet a mental balance of a lady concerned, it would be of no consequence.”
It was similarly held:
“Consequences of cruelty that are expected to expostulate a lady to dedicate self-murder or to means grave damage or risk to life, prong or health, possibly mental or earthy of a lady are compulsory to be determined in sequence to move home a focus of Section 498-A, IPC. Cruelty has been tangible in a Explanation for a purpose of Section 498-A. Substantive Section 498-A, IPC and unreserved Section 113-B of a Evidence Act have been extrinsic in a sold principle by a Criminal Law (Second Amendment) Act, 1983. It is to be remarkable that Sections 304-B and 498-A, IPC can't be hold to be jointly inclusive. These supplies understanding with dual graphic offences. It is loyal that cruelty is a common essential to both a sections and that has to be proved. The Explanation to Section 498-A gives a clarification of “cruelty”. In Section 304-B there is no such reason about a clarification of “cruelty”. But carrying courtesy to a common credentials of these offences it has to be taken that a clarification of “cruelty” or “harassment” is a same as prescribed in a Explanation to Section 498-A underneath that “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such genocide should have occurred within 7 years of marriage. No such duration is mentioned in Section 498-A. A chairman charged and clear underneath Section 304-B can be convicted underneath Section 498-A though that assign being there, if such a box is finished out. If a box is established, there can be a self-assurance underneath both a sections (See Akula Ravinder v. State of A.P., (1991 (2) SCC (Suppl.) 99). Section 498-A, IPC and Section 113-A of a Evidence Act embody in their width past events of cruelty. Period of operation of Section 113-A of a Evidence Act is 7 years; supposition arises as to dowry genocide when a lady committed self-murder within a duration of 7 years from a date of marriage.”
18. In T. Aruntperunjothi v. State by S.H.O. Pondicherry, we (2006) DMC 698 (SC)=III (2006) SLT 395=II (2006) CCR 114 (SC)=2006 (9) SCC 467, this Court held:
“37. It, therefore, appears that no reasoning justification had been adduced by a assign to settle that a appellant had demanded any dowry. It would bear exercise to state that according to a mom of a deceased, PW-7 usually PW-3 demanded dowry and usually he was obliged for a genocide of her daughter. If that be so, he should have also been prosecuted.”
19. Mr. Kuldip Singh, however, in a opinion, competence be right in contending that on a materials on record it was probable for a conference Court as also a High Court to pass a visualisation of self-assurance opposite a appellant underneath Section 302 of a Indian Penal Code as a genocide occurred in a matrimonial home. It was a savage death. Appellant in a matter underneath Section 313 of a Code of Criminal Procedure did not make any matter that a defunct committed self-murder or it was an random one.
In a box of this nature, even Section 106 of a Indian Evidence Act could be brought to use. However, it was not done. Appellant has been convicted usually underneath Section 304B of a Code.
20. For a aforementioned purpose, a schooled Counsel wants us to plead Section 386(b)(iii) of a Code of Criminal Procedure, that reads as under:
“386. Powers of a Appellate Court.—After perusing such record and conference a appellant or his pleader, if he appears, and a Public Prosecutor, if he appears, and in box of an interest underneath Section 377 or Section 378, a accused, if he appears, a Appellate Court may, if it considers that there is no sufficient belligerent for interfering, boot a appeal, or may—
(b) in an interest from a conviction—
(iii) with or though altering a finding, change a inlet or a extent, or a inlet and extent, of a sentence, though not so as to raise a same;”
21. In Harjit Singh v. State of Punjab, we (2006) DMC 11 (SC)=VIII (2005) SLT 802=IV (2005) CCR 323 (SC)=(2006) 1 SCC 463, this Court held:
“16. A authorised novella has been combined in a pronounced sustenance to a outcome that in a eventuality it is determined that shortly before a death, a defunct was subjected to cruelty or nuisance by her father or any of his relative; for or in tie with any direct of dowry, such genocide shall be called “dowry death”, and such father or relations shall be deemed to have caused her death.”
Noticing a supplies of Section 113-B of a Evidence Act, it was opined:
“17. From a conjoint reading of Section 304B of a Indian Penal Code and Section 113-B of a Indian Evidence Act, it will be apparent that a supposition outset thereunder will work if a assign is means to settle a resources as set out in Section 304B of a Indian Penal Code.
19. In a box of assumed genocide of a married lady as in a box of this nature, a father could be prosecuted underneath Section 302, Section 304B and Section 306 of a Indian Penal Code. The eminence as regards elect of an corruption underneath one or a other supplies as mentioned hereinbefore came adult for care before a Division Bench of this Court in Satvir Singh and Ors. v. State of Punjab and Anr., (2001) 8 SCC 633, wherein it was hold : (SCC p. 643, paras 21-22)
“21.Thus, there are 3 occasions associated to dowry. One is before a marriage, second is during a time of matrimony and a third is “at any time” after a marriage. The third arise competence seem to be an constant period. But a essential difference are “in tie with a matrimony of a pronounced parties”. This means that giving or similar to give any skill or profitable confidence on any of a above 3 stages should have been in tie with a matrimony of a parties. There can be many other instances for remuneration of income or giving skill as between a spouses. For example, some prevalent payments in tie with birth of a child or other ceremonies are prevalent in opposite societies. Such payments are not enveloped within a ambit of “dowry”. Hence a dowry mentioned in Section 304B should be any skill or profitable confidence given or concluded to be given in tie with a marriage.
22. It is not adequate that nuisance or cruelty was caused to a lady with a direct for dowry during some time, if Section 304B is to be invoked. But it should have happened “soon before her death”. The pronounced phrase, no doubt, is an effervescent countenance and can impute to a duration possibly immediately before her genocide or within a few days or even a few weeks before it. But a vicinity to her genocide is a focus indicated by that expression. The legislative intent in providing such a radius of time by contracting a difference “soon before her death” is to emphasize a thought that her genocide should, in all probabilities, have been a issue of such cruelty or harassment. In other words, there should be a obvious sequence between her genocide and a dowry-related nuisance or cruelty inflicted on her. If a interlude elapsed between a detriment of such nuisance or cruelty and her genocide is far-reaching a Court would be in a position to sign that in all probabilities a nuisance or cruelty would not have been a evident means of her death. It is hence for a Court to decide, on a contribution and resources of any case, possibly a pronounced interlude in that sold box was sufficient to tinge a cord from a visualisation “soon before her death”.”
30. The mixture of Section 306 and Section 304B are opposite and distinct. In any event, no justification has been brought on record to uncover that there has been any act of repudiation or elect on a partial of a accused, before a genocide of a defunct to denote that a appellant was obliged for a same. We have beheld hereinbefore that a High Court, for a initial time, in a visualisation on a supposition celebrated that when her father came to see her, he contingency have been angry or felt harm as she competence have been subjected to harassment. Unfortunately, no justification whatsoever has been brought to a notice to capacitate us to means a pronounced anticipating and in that perspective of a matter we are incompetent to accept a submissions of a schooled Counsel appearing for a respondent State.”
22. It is loyal that dual injuries were beheld on a chairman of a defunct by a Autopsy Surgeon, though we could have deliberate this aspect of a matter had a appellant been not a usually accused. The FIR was lodged opposite others also. Three some-more persons being sisters and cousin of a appellant were also charged for elect of a pronounced offence. If a defunct was forced to take poison, they contingency have some palm in it. As they have been acquitted, it is formidable for us to come to a end that it was a appellant and a appellant alone who was obliged for her death.
23. For a aforementioned reasons, a impugned visualisation can't be postulated and it is set aside accordingly. The interest is allowed. The appellant who is in control is destined to be set during autocracy and expelled forthwith unless wanted in tie with any other case.
[S.B. Sinha] ……………………………….J. [Cyriac Joseph]
December 12, 2008