BALJINDER KAURversusSTATE OF PUNJAB

                   [2014] 13 S.C.R. 985


                   BALJINDER KAUR                            A
                            v.
                   STATE OF PUNJAB
            (Criminal Appeal No. 1142 of 2011)
                                                             B
                  NOVEMBER 19, 2014
        [T. S. THAKUR AND R. BANUMATHI, JJ.]
     Penal Code, 1860: s. 304-8- Dowry death - Death by
poisoning - Demand of gold bangle two months after
marriage - Except one stray demand of gold bangle, there C ·
was no other evidence to show that the victim-deceased was
subjected to cruelty in connection with demand of dowry by
the appellant-sister-in-law soon before her death - Conviction
u/s.304-8 is therefore not maintainable however evidence
on record made out offence uls.498-A, /PC.                     D
      Investigation: Role of investigating officer- Held: Any
omission and commission by the investigating officer may
result in miscarriage of justice - Investigating officer must
be trained to adopt proper techniques of investigation and E
scientific temper must be inculcated in them and
investigation must be conducted in unbiased manner.
     Partly allowing the appeal, the Court
      HELD: 1. In his evidence, even though PW-4 (father
of the deceased) had stated about the 'dying declaration' F
alleging that accused have beaten her and administered
poison, FIR was registered only under Section 304B IPC.
Investigation was not focused in the direction of the
alleged 'dying declaration'. The investigating officer had
not investigated whether in the house of accused there G
was aluminium phosphide poison which is stated to be
'pesticide' and whether the accused could have
administered poison to the victim-deceased. The
investigation lacked credibility as the same was not
                                                              H
                            985
986      SUPREME COURT REPORTS              [2014] 13 S.C.R.

A focused in the light of the contents of the complaint.
  [Para 9][990-G-H; 991-A-B]
        2. The criminal investigation plays an important and
  special role in the administration of criminal justice. Any
  omission and commission by the investigating officer
B may result in miscarriage of justice. 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
C 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. [Para 10)[991-B; E-F]

0       3. In cases related to dowry death, the
  circums-tances 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". The testimony
E of the father of the deceased PW-4 showed 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 was no
F material on record to connect the appellant with the
  persistent demand for dowry. Admittedly, the appellant
  was married about six years prior to the solemnization
  of marriage of deceased with her brother. The appellant
  has got three children and she lives in her in-law's house.
  There was no evidence showing any persistent dowry
G demand or the conduct o( the appellant subjecting the
  deceased to cruelty or harassment for or in connection
  with dowry. About twenty days prior to the occurrence,
  when the deceased went to her father's house, she only
H
       BALJINDER KAUR v. STATE OF PUNJAB                      987



generally stated about the dowry demand. She had not A
specifically stated about the demand of dowry by the
appellant. 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 and the
conviction of the appellant under Section 3048 IPC B ·
cannot be sustained. Even though there was 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, evidence on
record makes out an offence under Section 498A IPC. C
[Paras 20 to 22][996-E-H; 997-A; C-D]
    Hira Lal v. State (Govt. of NCT) Delhi 2003 (1)
    Suppl. SCR 734 : 2003 (8) SCC 80; Kamesh
    Panjiyar alias Kamlesh Panjiyat v. State of Bihar
    2005 (1) SCR 903: (2005) 2 SCC 388; Thakkan               D
    Jha & Ors. v. State of Bihar (2004) 13 SCC 348;
    Baldev Singh v. State of Punjab 2008 (11)
     SCR 828 : (2008) 13 SCC 233 - relied on.
                    Case Law Reference:
                                                              E
     2003 (1) Suppl. SCR 734      relied on     Para 14
     2005 (1) SCR 903             relied on     Para 15
     (2004) 13 sec 348            rel!ed on     Para 15
     2008 (11) SCR 828            relied on     Para 15        F
    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1142 of 2011.
     From the Judgment and Order dated 11-08-2010 of the
High Court of Punjab and Haryana at Chandigarh in Criminal     G
Appeal No. 703-SB of 1999.
     Dinesh Kumar Garg, Ritu Puri, Advs. for the Appellant.
     Sanchar Anand, Kuldip Singh, Advs. for the Respondent.
                                                               H
 988          SUPREME COURT REPORTS                 [2014] 13 S.C.R.


  A          The Judgment of the Court was delivered by
             R. BANUMATHI, J. 1. 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
. B Section 3048 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.
 c           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
 0     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)
 E     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
 F     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.
 G     Immediately, PW-4 along with Darshan Singh (PW-5) and
       Harbahs 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
 H     others took the deceased to the hospital at Raikot, but she
       died on the way to the hospital.                  ·
         BALJINDER KAUR v. STATE OF PUNJAB                      989
                 [R. BANUMATHI, J.]

     3. PW-4 set the law in motion by lodging complaim on       A
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      B
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)       c
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 D
 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 E
 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 F
 disposed of by an order dated 11.08.2010 whereby the High
 Court dismissed the criminal revision and confirmed the
 convict.ion 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 G
 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        H
990         SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A 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
8 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 Diwpna at a
  distance of twenty kilometres away from her parental house
C and while so she could not have subjected the deceased to
  cruelty by demanding gold karra as dowry and the courts below
  erred jn convicting the appellant under Section 3048 IPC.
           7. Per contra, learned counsel for the respondent-State,
 0    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 3048 IPC and the concurrent findings
      recorded by the courts below warrant no interference.
 E       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, PW s 4 and 5 stated that on 25.8.1997
 F 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.
 G          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 3048 IPC. Investigation was not focussed
      in the direction of the alleged 'dying declaration'. The
 H
         BALJINDER KAUR v. STATE OF PUNJAB                             991
                 [R. BANUMATHI, J.]

investigating officer had not investigated whether in the house A
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.                  B
       10. The criminal investigation plays an important and           I'
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           C
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           D
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         E
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,           F
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.
                                                                       G
      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:-
                                                                       H
992         SUPREME COURT REPORTS                  [2014] 13S.C.R.


A          (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;
 8
           (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
c             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 1138 of the Evidence Act is also relevant for
 o    the case in hand. Section 1138 of the Evidence Act reads as
      under:-
           "1138. 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
 E         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."
 F        13. As per the definition of 'dowry death' in Section 3048
   IPC and the wording in Section 1138 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
 G essentials mentioned therein, under Section 1138 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 3048
      IPC and Section 1138 of the Evidence Act was considered by
 H
        BALJINDER KAUR v. STATE OF PUNJAB                             993
                [R. BANUMATHI, J.]

this Court in Hira Lal vs. State (Govt. of NCT) Delhi; 2003 A
(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          B
     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              C
     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        D
     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      E
     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.         F
     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                G
     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
                                                                      H
994         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A          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
8          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
c          concerned, it would be of no consequence."
           15. In Kamesh Panjiyar alias Kamlesh Panjiyarvs. State
      of Bihar, (2005) 2 SCC 388, this Court considered the
      expression "soon before death" and held as under:-

D
           "...... The expression 'soon before' is very relevant where
           Section 113-8 of the Evidence Act and Section 304-8
           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 .
E
           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
 F
           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 113-8 of the Evidence Act.
           The expression 'soon before her death' used in the
           substantive Section 304-8 IPC and Section 113-8 of the
G          Evidence Act is present with the idea of proximity
           test. ..... "
                      1
         The same view was expressed in Thakkan Jha & Ors.
   vs. State of Bihar, (2004) 13 SCC 348 and Baldev Singh vs.
 H State of Punjab, (2008) 13 SCC 233.
         BALJINDER KAUR v. STATE OF PUNJAB                         995
                 [R. BANUMATHI, J.]

      16. The above decisions of this Court laid down the A
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. B
"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.       c
       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    D
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,       E
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    F
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.         G
      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 H
996       SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A 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
B to the death to sustain the conviction of the appellant under
  Section 3048 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
C 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.
D
         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
E 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
F 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.
G
        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
H went to her father's house, she only generally stated about the
          BALJINDER KAUR v. STATE OF PUNJAB                            997
                  [R. BANUMATHI, J.]

dowry demand. She had not specifically stated about the A
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 B
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 C
deceased Sharanjit Kaur.and th.e conviction of the appellant
under Section 3048 IPC cannot be sustained.
      22. Even though there is no evidence that the deceased
was treated with cr\Jelty or harassment in connection with the
demand of dowry "soon before her death" by the appellant, in D
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 E
of the case, for the conviction under Section 498A, she is
sentenced to undergo imprisonment already undergbne.
     23. In the result, conviction of the appellant under Section
3048 IPC is set aside. The appellant is convicted under                F
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.


Devika Gujral                                Appeal partly a:lowecJ.