BAKSHISH RAM & ANOTHERversusSTATE OF PUNJAB

                        (2013] 4 S.C.R. 732

A                  BAKSHISH RAM & ANOTHER
                                  v.
                       STATE OF PUNJAB
                (Criminal Appeal No. 969 of 2009)
                         MARCH 12, 2013
B
    [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

        Penal Code, 1860 - s.3048 - Dowry death - Conviction
    by courts below - On appeal, held: Prosecution failed to
C   establish its case beyond reasonable doubt - Courts below
    committed an error in convicting the accused - Evidence Act,
    1872 - s.113 B.

         Evidence Act, 1872 - s.60 - Oral evidence - Based on
    hearsay evidence - Admissibility - Held: Such oral evidence
0
    is not admissible.

        Appeal - Appellate jurisdiction of High Court - In criminal
    appeal - Held: As a first court of appeal, High Court should
    record its own findings after independent assessment of
E   evidence.

        Appellants-accused Nos.1 and 2 alongwith accused
    No.3 were prosecuted ulss. 3048 and 498A IPC. Trial
    court convicted all the three accused and sentenced
F   them to RI for 7 years. During pendency of the appeal
    before High Court, the appeal abated so far as A-3 is
    concerned due to his death. High Court confirmed the
    conviction and sentence of A-1 and A-2. Hence the
    present appeal.
G       Allowing the appeal, the Court
        HELD: 1. The prosecution failed to establish its guilt
    beyond reasonable doubt and the trial Court and the
    High Court committed an error in convicting the
H                            732
       BAKSHISH RAM v. STATE OF l?UNJAB                 733

appellants and the same are liable to be set aside. [Para      A
15] [[7 44-A-B]
     2. The High Court, as a first Court of appeal, on facts
must apply its independent mind and record its own
findings on the basi:; of its own assessment of evidence.      8
Mere reproduction of the assessment of trial court may
not be sufficient and in the absence of independent
assessment by the High Court, its ultimate decision
cannot be sustained. [Para 10] [741-E]

   Sakatar Singh and Ors. vs. State of Haryana (2004) 11       C
SCC 291; Arun Kumar Sharma vs. State of Bihar (2010) 1
SCC 108: 2009 (14) SCR 1023 - relied on.

    3. PW-2, i.e. the mother of the deceased has not
stated anything in her evidence with regard to                 o
harassment or mal-treatment of the deceased by the
appellants on the basis of her personal knowledge rather
admittedly her knowledge is hearsay since her whole
narration in this regard in the court was based on
whatsoever was stated to her by her husband. Under             E
Section 60 of the Evidence Act hearsay evidence was not
admissible as husband of PW2 was not examined before
the court and no other witness was produced by the
prosecution to prove about mal-treatment and
harassment of the deceased by the appellants. Therefore,
                                                               F
the ingredients of Section 3048 IPC were not met by the
prosecution for holding the appellants guilty under the
said offence. Even otherwise, since the demands made
by the appellants were met by the parents of the
deceased, there was no reason for the appellants to set
the deceased on fire. Even the other witness, i.e. PW-3        G
who was a resident of the village nowhere stated in his
deposition before the Court with regard to any mal-
treatment to the deceased or being aware of any such
incident. Hence, his evidence is not helpful insofar as the
allegation of harassment and mal-treatment is concerned.       H
    734     SUPREME COURT REPORTS              [2013] 4 S.C.R.

A The prosecution has not pressed into service any other
  witness to prove the demand of dowry, harassment and
  mal-treatment. [Para 9] [740-G-H; 741-A-D]
         4. A perusal of Section 1138 of the Evidence Act and
B   Section 3048 IPC shows that there must be material to
    show that soon before her death the victim was
    subjected to cruelty or harassment. In other words, the
    prosecution has to rule out the possibility of a natural or
    accidental death so as to bring it within the purview of
    the "death occurring otherwise than in normal
C   circumstances". The prosecution is obliged to show that
    soon before the occurrence, there was cruelty or
    harassment and only in that case presumption operates.
    If the alleged incident of cruelty is remote in time and has
    become stale enough not to disturb the mental
D   equilibrium of the woman concerned, it would be of no
    consequence. In the instant case, the prosecution
    heavily relied on the only evidence of PW-2- mother of the
    deceased which is a hearsay, in any event, a very general
    and vague statement which is not sufficient to attract the
E   above provisions. In such circumstances, accidental
    death cannot be ruled out. It is also relevant that it was
    appellant No.1-husband of the deceased who took the
    deceased to the hospital and it was he who informed the
    police as well as parents of the deceased. He also did not
F   make any attempt to run away from the place of
    occurrence. [Paras 13 and 14] [743-C-H]
         Srinivasu/u vs. State of A.P. (2007) 12 SCC 443: 2007
    (9) SCR 842 - relied on.
G                       Case Law Reference:
          (2004) 11 sec 291      relied on            Para 10
          2009 (14) SCR 1023     relied on            Para 11

H         2007 (9) SCR 842       relied on            Para 12
       BAKSHISH RAM v. STATE OF PUNJAB                   735


    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal           A
No. 969 of 2009

    From the Judgment & Order dated 26.03.2008 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 487-SB of 1994.
                                                                 B
    Satinder Singh Gulati, Kamaldeep Gulati for the
Appellants.

   V. Madhukar, AAG, Srajita Mathur, Kuldip Singh for the
Respondent.                                                      c
    The Judgment of the Court was delivered by

    P. SATHASIVAM, J. 1. This appeal has been filed against
the judgment and order dated 26.03.2008 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal     D
No. 487-SB of 1994 whereby the learned Single Judge of the
High Court dismissed the appeal filed by the appellants herein
and confirmed the judgment and order dated 21.09.1994
passed by the Additional Sessions Judge, Jalandhar convicting
the appellants herein under Sections 3048 and 498A of the        E
Indian Penal Code, 1860 (hereinafter referred to as "IPC") and
sentencing them to undergo rigorous imprisonment for seven
years.

    2. Brief facts:
                                                                 F
     (a) The marriage between Surinder Kaur (deceased) and
Bakshish Ram - appellant No.1 (A-1 ), was solemnized 1Y.
years prior to the date of occurrence. Appellant No.2 (A-3) is
the mother-in-law of the deceased and mother of A-1. Khushia
Ram (A-2), is the father-in-law of the deceased and father of    G
A-1, who died during the pendency of the appeal in the High
Court.

   (b) As per the prosecution case, on 06.07.1992, Bikkar
Ram (since deceased) - the father of Surinder Kaur (deceased)    H
    736      SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A went to meet her daughter at her matrimonial home where she
  informed him about the harassment and mal-treatment meted
  out by her huband - Bakshish Ram (Appellant No.1 herein), her
  father-in-law, Khushia Ram (since deceased) and her mother-
  in-law Dalip Kaur (Appellant No.2 herein). She also informed
B him that her in-laws were pressurizing her to bring more money
  from her parents as they wanted to purchase a Cooler. It was
  alleged by Bikkar Ram that about four months before the
  incident, the deceased was sent to her parents house to bring
  money for purchasing a Cooler and he gave her Rs.800/- for
c the same, which he borrowed from one Sarwan Singh, who was
  a resident of his village. Again, on being asked by her, he gave
  two electronic Harmoniums, which were brought by the brother
  of the deceased from abroad.

       (c) On the next day, i.e.,on 07.07.1992, at about 10.30 p.m.,
D one Parminder Singh informed Bikkar Ram that his daughter
  has been set on fire by her in-laws and she has been admitted
  to Civil Hospital, Nawanshahar. On hearing this, he along with
  his wife Sibo (PW-2) rushed to the Civil Hospital where they
  found that their daughter was completely burnt. On being
E enquired, he was informed by the villagers that her daughter
  was set on fire by her in-laws by pouring kerosene oil. He gave
  a statement before the. police narrating the incident. Based on
  his statement, a case under Section 304-B read with Section
  34 of IPC was registered against Bakshish Ram - the husband,
F Khushia Ram - father-in-law and Dalip Kaur - mother-in-law of
  the deceased at Police Station, Banga. After the investigation,
  the case was committed to the Court of Additional Sessions
  Judge, Jalandhar.

      (d) The Additional Sessions Judge, by order dated
G 21.09.1994, by amending the charges convicted all the three
  accused persons for having committed an offence punishable
  under Sections 304B and 498-A IPC and sentenced them to
  undergo rigorous imprisonment for 7 years.

H         (e) Aggrieved by the said judgment, all the three accused
        BAKSHISH RAM v. STATE OF PUNJAB                       737
               [P. SATHASIVAM, J.]
filed an appeal being Criminal Appeal No. 487-SB of 1994              A
before the High Court of Punjab and Haryana. During the
pendency of the appeal, Khushia Ram (A-2), died on
21.07.2006 and therefore, the proceedings against him were
dropped. By impugned order dated 26.03.2008, the High Court
dismissed the appeal filed by the present appellants.                 B

    (f) Challenging the said judgment and order, the appellants
have preferred this appeal by way of special leave.

    3. Heard Mr. Satinder Singh Gulati, learned counsel for the
appellants-accused and Mr. V. Madhukar, learned Additional            C
Advocate General for the respondent-State.

      4. The only point for consideration in this appeal is whether
the prosecution has established its case against the appellants-
accused beyond reasonable doubt and the Courts below are              o
justified in convicting them under Sections 304B and 498A IPC
and sentencing them to undergo rigorous imprisonment for
seven years?

Discussion:
                                                                      E
      5. Admittedly the marriage between Surinder Kaur
(deceased) and Bakshish Ram (appellant No.1-accused) was
solemnized 1Y. years prior to the date of occurrence. The
evidence of Sibo (PW-2), the mother of the deceased and Jee!
Ram (PW-3), resident of village Soutran show that in these 1          F
Y. years no incident of cruelty, mal-treatment and harassment
relating to the dowry was alleged against the appellants except
the incident of just one day prior to the date of occurrence. The
star witness relied on by the prosecution is Sibo (PW-2), who
is none else than the mother of the deceased. In her evidence,        G
she stated that her daughter Surinder Kaur (deceased) was
married to Bakshish Ram (appellant No.1) about 1 Y. years
prior to her death. She further explained that one day prior to
the occurrence, her husband - Bikkar Ram had gone to the
house of her daughter. Actual statement of Sibo (PW-2) with           H
    738      SUPREME COURT REPORTS                 [2013]4 S.C.R.

A   reference to cruelty, mal-treatment and harassment is as
    follows:

          " ....... he told me that our daughter Surinder Kaur was
          being harassed and mal-treated by the accused for
          bringing less dowry. About 15 days before her death my
B
          daughter Surinder Kaur with her husband Bakshish Ram
          had come to our house and she was as.king for the
          harmonium which her brother had brought from the foreign
          country. Both these harmoniums were given to her on her
          asking. My daughter had also asked me to supply a cooler
c         to her. She was making these demands on the asking of
          her husband and mother-in-law and father-in-law accused.
          We did not deliver the cooler but we borrowed a sum of
          Rs.800/- from Sarwan Singh of our village and gave that
          amount to my daughter."
D
       6. Mr. Satinder Singh Gulati, learned counsel for the
  appellants has pointed out that the first part of the evidence of
  PW-2 relates to hearsay, namely, that she deposed what her
  husband - Bikkar Ram informed her and the rest of the portion
E is a general and vague statement. It is true that first part of her
  statement clearly shows that she had no personal knowledge,
  information or appraisal from her daughter but she heard the
  alleged harassment and mal-treatment for bringing less dowry
  from her husband - Bikkar Ram. Admittedly on the date of the
F evidence, Bikkar Ram was not available since he died before
  recording of the evidence. As per Section 60 of the Indian
  Evidence Act, 1872 (in short "Evidence Act"), oral evidence
  must be direct if it refers to a fact which could be heard, it must
  be the evidence of a witness who says he heard it. We have
G already extracted the actual statement of Sibo (PW-2) in which
  she admitted that she heard the above allegation from her
  husband and the same could not be corroborated. At the most
  her statement is only hearsay and in the absence of any other
  material in the form of corroboration, conviction cannot be
  sustained solely on this evidence.
H
         BAKSHISH RAM v. STATE OF PUNJAB                       739
                [P. SATHASIVAM, J.)
       7. It is but natural that being the mother of the deceased if   A
  she had come across any such harassment or ill-treatment, she
 could have explained the same in her evidence. Admittedly, she
  had neither asserted nor narrated any complaint from her
  daughter about harassment or ill-treatment by the appellants .
. In the later part of her statement, Sibo (PW-2) has stated that      B
  the deceased with her husband came to their house 15 days
  prior to the date of incident and when she asked for the
  Harmoniums which her brother had brought from abroad, she
  gave both the Harmoniums to her which shows that the demand
  made by her daughter had been complied with. It is further seen      C
  from the evidence of PW-2 that her daughter had also asked
  for money for purchasing cooler on being pressurized by her
  in-laws. For meeting this demand, PW-2 had stated that she
  borrowed a sum of Rs.800/- from Sarwan Singh of their village
  and gave the same to her daughter. By this, as rightly pointed       D
  out by learned counsel for the appellants, the demands made
  by the appellants were met by the parents of the deceased,
  therefore, there was no reason for them to set the deceased
  on fire.

      8. In order to appreciate the only evidence of Sibo (PW-         E
2), it is useful to refer the definition of "Dowry death" under
Section 304B of IPC which reads as under:

     "3048 Dowry death - (1) Where the death of a woman
     is caused by any burns or bodily injury or occurs otherwise
                                                                       F
     than under normal circumstances within seven years of her
     marriage and it is shown that soon before her death she
     was subjected to cruelty or harassment by her husband or
     any relative of her husband for, or in connection with, any
     demand for dowry, such death shall be called "dowry
     death", and such husband or relative shall be deemed to           G
     have caused her death.

           Explanation - For the purpose of this sub-section,
      "dowry" shall have the same meaning as in Section 2 of
      the Dowry Prohibition Act, 1961 (28 of 1961).                    H
    740          SUPREME COURT REPORTS               [2013] 4 S.C.R.


A               (2) Whoever commits dowry death sh311 be punished
          with imprisonment for a term which shall not be less than
          seven years but which may extend to imprisonment for life."

  A perusal of Section 3048 clearly shows that if a married
  woman dies otherwise than under normal circumstances within
8 seven years of her marriage and it is shown that soon before
  her death she was subjected to cruelty or harassment by her
  husband or any relative of her husband in connection with any
  demand for dowry, such death shall be called "dowry death"
  and such husband or relative shall be deemed to have caused
C the death. The conditions precedent for establishing an offence
  under this section are:

           (a)     that a married woman had died otherwise than
                   under normal circumstances;
D
           (b)     such death was within seven years of her marriage;
                   and

           (c)     the. prosecution has established that there was
                   cruelty and harassment in connection with demand
E                  for dowry soon before her death.

  This section will apply whenever the occurrence of death is
  preceded by cruelty or harassment by husband or in-laws for
  dowry and death occurs in unnatural circumstances. The
F intention behind the section is to fasten guilt on the husband or
  in-laws though they did not in fact caused the death.

        9. We have already extracted and analyzed the statement
  of Sibo (PW-2), the mother of the deceased and we are
  satisfied that she has not stated anything in her evidence with
G regard to harassment or mal-treatment of the deceased by the
  appellants on the basis of her personal knowledge rather
  admittedly her knowledge is hearsay since her whole narration
  in this regard in the Court is based on whatsoever was stated
  to her by her husband - Bikkar Ram. We have already stated
H that under Section 60 of the Evidence Act hearsay evidence
         BAKSHISH RAM v. STATE OF PUNJAB                       741
                [P. SATHASIVAM, J.]
is not admissible as Bikkar Ram was not examined before the           A
Court and no other witness was produced by the prosecution
to prove about ma I-treatment and harassment of the deceased
by the appellants. Therefore, the ingredients of Section 3048
 IPC were not met by the prosecution for holding the appellants
guilty under th.e said offence. Even otherwise, since the             B
demands made by the appellants were met by the parents of
the deceased, there was no reason for the appellants to set
the deceased on fire. Even the other witness, namely, Jeet Ram
(PW-3), a resident of Soutran has nowhere stated in his
deposition before the Court with regard to any mal-treatment          c
to the deceased or being aware of any such incident. Hence,
his evidence is not helpful insofar as the allegation of
harassment and mal-treatment is concerned. Admittedly, except
the abovementioned witnesses, the prosecution has not
pressed into service any other witness to prove the demand of
                                                                      0
dowry, harassment and mal-treatment.

      10. The High Court, as a first Court of appeal, on facts
must apply its independent mind .and record its own findings
on the basis of its own assessment of evidence. Mere
reproduction of the assessment of trial Court may not be              E
sufficient and in the absence of independent assessment by
the High Court, its ultimate decision cannot be sustained. The
same view has been reiterated by this Court in Sakatar Singh
& Ors. vs. State of Haryana, (2004) 11 SCC 291.
                                                                      F
       11. In Arun Kumar Sharma vs. State of Bihar, (2010) 1
 SCC 108, while reiterating the above view, this Court held that
·in its appellate jurisdiction all the facts were open to the High
 Court and, therefore, the High Court was expected to go deep
 into the evidence and, more particularly, the record as also the     G
 proved documents. Contrary to the above principle, we are
 satisfied that in the case on hand, the High Court failed to delve
 deep into the record of the case and the evidence of the
 witnesses. The role of the appellate Court in a criminal appeal
 is extremely important and all the questions of fact are open
 before the appellate Court. The said recourse has not been           H
    742      SUPREME COURT REPORTS                 [2013] 4 S.C.R.

A   adopted by the High Court while confirming the judgment of the
    trial Court.

         12. We have already noted Section 3048 IPC and its
    essential ingredients. Section 1138 of the Evidence Act is also
    relevant for the case in hand. Both Sections 3048 and 1138
8
    of the Evidence Act were inserted by Dowry Prohibition
    (Amendment) Act 43 of 1986 with a view to compact the
    increasing menace of dowry deaths. Section 1138 of the
    Evidence Act reads as under:
c         "1138. Presumption as to dowry death.- When the
          question is whether a person has committed the dowry
          death of a woman 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
D         demand for dowry, the Court shall presume that such
          person had caused the dowry death."

          Explanation.- For the purposes of this section, "dowry
          death" shall have the same meaning as in section 3048
          of the Indian Penal Code (45 of 1860)"
E
  As per the definition of "dowry death" in Section 3048 IPC and
  the wording in the presumptive Section 1138 of the Evidence
  Act, one of the essential ingredients amongst others, in both
  the provisions is that the woman concerned must have been
F 'soon before her death' subjected to cruelty or harassment "for
  or in connection with the demand for dowry". While considering
  these provisions, this Court in M. Srinivasulu vs. State of A.P.,
  (2007) 12 sec 443 has observed thus:

G         " ... The presumption shall be raised only on proof of the
          following essentials:

                (1) The question before the court must be whether
          the accused has committed the dowry death of a woman.
          (This means that the presumption can be raised only if the
H
       BAKSHISH RAM v. STATE OF PUNJAB                       743
              [P. SATf:iASIVAM, J.]
                        --
    accused is being tried for the offence under Section 304-        A
    B IPC.)

         (2) The woman was subjected to cruelty or
    harassment by her husband or his relatives.

         (3) Such cruelty or harassment was for, or in               B
    connection with any demand for dowry.

         (4) Such cruelty or harassment was soon before her
    death."

     13. As discussed above, a perusal of Section 1138 of the        C
Evidence Act and Section 3048 IPC shows that there must be
material to show that soon before her death the victim was
subjected to cruelty or harassment. In other words, the
prosecution has to rule out the possibility of a natural or
accidental death so as to bring it within the purview of the         D
"death occurring otherwise than in normal circumstances". The
prosecution is obliged to show that soon before the occurrence,
there was cruelty or harassment and only in. that case
presumption operates. As observed earlier, if the alleged
incident of cruelty is remote in time and has become stale           E
enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence. In the case on hand,
admittedly, the prosecution heavily relied on the only evidence
of Sibo (PW-2) " mother of the deceased which, according to
us, is a hearsay, in any event, a very general and vague             F
statement which is not sufficient to attract the above provisions.
In such circumstances, as argued by the learned counsel for
the appellants, accidental death cannot be ruled out.

     14. Another relevant aspect to be noted is that it was          G
appellant No.1-husband of the deceased who took the
deceased to the hospital and it was he who informed the police
as well as parents of the deceased. It is also brought to our
notice that he did not make any attempt to run away from the
place of occurrence.
                                                                     H
    744      SUPREME COURT REPORTS               (2013] 4 S.C.R.


A      15. In view of the above discussion, we are satisfied that
  the prosecution failed to establish its guilt beyond reasonable
  doubt and the trial Court and the High Court committed an error
  in convicting the appellants and the same are liable to be set
  aside. Since appellant No.1 has already served out the period
8 of  sentence of 7 years, no further direction is required.
  However, since appellant No.2 is on bail, her bail bonds shall
  stand discharged. The appeal is allowed.

    K.K.T.                                      Appeal allowed.