GURDEEP SINGHversusSTATE OF PUNJAB AND ORS.

                    [2011] 10 S.C.R. 655


                     GURDEEP SINGH                                A
                               v.
              STATE OF PUNJAB AND ORS.
            (Criminal Appeal No. 1085 of 2003)
                     AUGUST 25, 2011
                                                                  B
 [HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.]

      Penal Code, 1860: ss. 3048, 498A - Allegation of dowry
death against appellant-husband, his brothers, parents and
sisters - Allegation that all the accused administered poison C
to the victim-deceased which resulted in her death - Trial
court held the appellant and his parents guilty, however,
acquitted his brothers and sisters - High Court upheld the
conviction of appellant and ordered acquittal of his parents -
On appeal, held: The evidence with respect to the appellant D
was almost identical with that of the six accused who were
acquitted of the same charge - Allegation of poisoning was
not substantiated as no poisonous substance was found in th&-
report of FSL - Mere fact that the victim was a young woman
would not lead to inference that she had died an unnatural E
death - Likewise, the evidence of demand for dowry or goods
soon before death was also lacking - Indisputably, in order
to attract s.3048, it is imperative on the part of the prosecution
to establish that the cruelty or harassment has been meted
out to the deceased 'soon before her death'- It must undergo
                                                                   F
the test known as 'proximity test'- Evidence clearly failed the
oroximity test - Courts below drew a presumption against the
accused primarily on the plea that they had not informed the
?arents of the deceased that she had died and had hurriedly
cremated her dead body - Evidence of the brother and the
father of the victim in the Court was that they had received G
'70 information about the death - However, in their statements
~ecorded uls.161, Cr.P.C. they had stated that they were
oresent when the cremation took place - In order to explain
this contradiction both these witnesses disowned their s. 161
                               655                                 H
    656      SUPREME COURT REPORTS                 [2011) 10 S.C.R.

A statements and testified that they had not made any
  statement to the police - These statements were, however,
  falsified by the evidence of the police officer concerned, who
  deposed that the police statements were recorded by him as
  per the dictates of the two witnesses - Conviction liable to be
B set aside - Appellant acquitted - Evidence Act, 1872 -
  s.1138.

       Suresh Kumar Singh v. State of Uttar Pradesh (2009) 17
    sec 243: 2009 (7) SCR 1068 - relied on.
c                          Case Law Reference:
          2009 (7) SCR 1068            relied on              Para 5
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1085 of 2003.
D
        From the Judgment and Order dated 21.05.2002 of the
    High Court of Punjab and Haryana at Chandigarh in Criminal
    Appeal No. 667-SB of 2000.
          Sudhir Walia and Abhishek Atrey for the Appellant.
E
        Kuldip Singh, R.K. Pandey, H.S. Sandhu, K.K. Pandey and
    Mohit Mudgal for the Respondents.
          The following order of the Court was delivered
F                                ORDER

          1. This appeal arises out of the following facts:
       1.1 The appellant Gurdeep Singh was the husband of the
G deceased Rajender Kaur. The couple had got married on the
  14th of October, 1989 and it is the case of the prosecution that
  a substantial amount of money far beyond the means of the
  bride's family had been spent at that time though the appellant,
  his parents, sisters and other relatives remained dissatisfied.
H It appears that the demands for dowry continued unabated and
 GURDEEP SINGH v. STATE OF PUNJAB AND ORS. 657


about one year before the death the appellant demanded a sum            A
of '25,000/- for the purchase of a motorcycle, and this amount
was indeed handed over to the appellant but was utilised for
purchasing a plot instead. It is further the prosecution story that
despite having received the aforesaid amount, the deceased
continued to suffer at the hands of her husband and his                 B
relatives and that despite the efforts of a panchayat in the matter
no suitable result followed. It is further the prosecution story that
the appellant and his relatives administered poison to Rajinder
Kaur on the 27th July, 1995 which caused her death and that
three days thereafter information was received by Gurdev Singh          c
P.W. 2, her brother, and Satnam Singh, P.W. 3 her father on
which they alongwith others rushed to the matrimonial home of
Rajinder Kaur but found that the dead body had been hurriedly
cremated. Gurdev Singh P.W.2 thereupon gave an application
Exhibit PB to the Station House Officer, Police Station,                0
Gidderbaha and on its basis a daily diary entry was recorded
and after a preliminary probe, a First Information Report for
offences punishable under Section 304B and 498A IPC was
registered on the 8th August, 1995. After investigation, Gurdeep
Singh, the appellant herein, his brothers, Harbhajan Singh and          E
Daljit Singh, parents, Jit Singh and Satnam Kaur, and sisters
Darshan Kaur and Daljit Kaur were brought to trial for the
aforesaid offences. The trial court vide its judgment dated 15th
July, 2000, found the charge under Section 304B proved
against the appellant, Jit Singh and Satnam Kaur and the three
were, accordingly, sentenced to undergo rigorous imprisonment           F
for ten years. The trial court, however, gave the benefit of doubt
to Harbhajan Singh, Daljit Singh, Darshan Kaur and Daljit Kaur
and acquitted them of the charge. The matter was thereafter
taken in appeal by the convicted accused, and the High Court,
has, by the impugned judgment dismissed the appeal of                   G
Gurdeep Singh and allowed the appeal of Jit Singh and Satnam
Kaur. The solitary appellant now before us is Gurdeep Singh.

    2. Mr. Sudhir Walia, the learned counsel for the appellant
has raised several arguments before us during the course of             H
    658      SUPREME COURT REPORTS                 [2011] 10 S.C.R.
                                                        '


A the hearing. He has first pointed out that the presumption under
  Section 1138 of the Indian Evidence Act could be drawn with
  respect to a dowry death only if the ingredients of Section 3048
  of the Indian Penal Code were spelt out and in the light of the
  uncertain evidence that had come on record, more particularly,
8 as there was no evidence of an unnatural death or demands
  being made for dowry or other articles soon before the death,
  the said provision was inapplicable. It has also been pointed
  out that the prosecution story that '25,000/- had been spent to
  buy a plot was on the face of it wrong in the light of the
c documentary evidence proved by D.W. 2 Ram Chand, an
  employee of the bank who deposed to the effect that a sum of
  '93,000/- had been withdrawn from the bank on the 27th of July,
  1994, and the statement of DW 4- Pushpinder Singh, Junior
  Assistant, Tehsil Office, Gidderbaha from the Sub-Registrar's
  office who deposed that a sale deed for a plot priced at '54,000/
0
  - had been executed and as such the facts indicated that the
  entire amount for the sale had come from the account of
  Gurdeep Singh the appellant herein. He has, accordingly,
  pointed out that there was no evidence with respect to any
  demand being made soon before the death. The learned
E counsel has also placed reliance on a judgment of this Court
  in Suresh Kumar Singh v. State of Uttar Pradesh (2009) 17
  SCC 243. He has, in addition, argued that the prosecution story
  that P.W. 2, P.W. 3 and other relatives had not been called to
  attend the cremation was in clear contradiction vis-a-vis their
F statements recorded under Section 161 Cr.P.C. and the
  evidence in Court and that this contradiction had been pointed
  out during the course of the cross examination. In the alternative,
  it has been submitted that assuminti for a moment that no
  statements of P.Ws. 2 and 3 under Section 161 Cr.P.C. had
G been recorded, as deposed by them in their evidence, the
  prosecution would still not gain any advantage as a statement
  recorded in Court for the first time would have very limited
  evidentiary value.

H         3. Mr. Kuldip Singh, learned counsel for the State has,
GURDEEP SINGH v. STATE OF PUNJAB AND ORS. 659

however, supported the judgment of the trial court and the High    A
Court and has submitted that as the deceased was a young
woman.a presumption had to be drawn that she had died an
unnatural death and as such the provisions of Section 1138 of
the Evidence Act would be applicable to the facts of the case.
                                                                   B
    4. We have heard the learned counsel very carefully and
have gone through the record.

      5. We first find that the evidence with respect to the
appellant Gurdeep Singh is almost identical with that of the six
accused who have been acquitted of the same charge - two           C
by the High Court and four by the trial court and he appears to
have been singled out as being the husband. We first take up
the argument relating to Section 3048 and the presumption
drawn under Section 1138. A bare reading of Section 3048
pre-supposes several factors for its applicability, they being:-   D
(i) death should be of burns or bodily injury or has occurred
otherwise than under normal circumstances: (ii) within seven
years of the marriage; and (iii) that soon before her death she
had been subjected to cruelty or harrassment by her husband
or her relatives. This Court in Suresh Kumar Singh's case          E
supra has held that even if one of the ingredients is not made
out, the presumption under Section 1138 of the Evidence Act
would not be available to the prosecution and the onus would
not 'Shift to the defence.
     6. We find in the present case that there is no evidence of F
unnatural death. It is the prosecution story that the deceased
had been poisoned. It has, however, come in the evidence, and
in particular, in the report of the Forensic Science Laboratory
dated 21st August, 1995, that on an analysis of the bones and
ashes no poisonous substance had been found to be present. G
In this view of the matter, the mere fact that the deceased
happened to be a young woman would not lead to the inference
that she had died an unnatural death. Likewise, we find that the
evidence of demand for dowry or goods soon before death is
also lacking. Admittedly, the only evidence of any demand was H
    660      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   of Rs. 25,000/- made one year prior to the incident and as per
    the defence evidence of D.W. 2 and D.W. 4, the money for the
    execution of the sale deed had been taken out from the bank
    a day earlier. In the light of these two factors it has been held
    in paragraph 25 of the above cited case as under:
B
                 Indisputably, in order to attract Section 3048, it is
          imperative on the part of the prosecution to establish that
          the cruelty or harassment has been meted out to the
          deceased ·soon before her death'. There cannot be any
          doubt or dispute that it is a flexible term. Its application
c         would depend upon the factual matrix obtaining in a
          particular case. No fixed period can be indicated therefor.
          It, however, must undergo the test known as ·proximity test'.
          What, however, is necessary for the prosecution is to bring
          on record that the dowry demand was not too late and not
D         too stale before the death of the victim."

        .7. We, therefore, find that evidence clearly fails the
    proximity test as laid down in the aforesaid judgment.

E       8. The courts below have, however, drawn a presumption
  against the accused primarily on the plea that they had not
  informed the parents of the deceased that she had died and
  had hurriedly cremated her dead body. We further see from the
  evidence of P.Ws. 2 and 3 that in their statements recorded in
F Court they did say that they had received no information about
  the death on which they had been confronted with their
  statements recorded under Section 161 of the Cr.P.C. in which
  they had stated that they had indeed been present when the
  cremation had taken place. In order to explain this contradiction
  boJh these witnesses disowned their 161 statements and
G testified that they had not made any statement to the police.
  These statements are, however, falsified by the evidence of
  P.W. 4 ASI Gurmel Singh, the police officer concerned, who
  deposed that the police statements had been recorded by him
  as per the dictates of the two witnesses. In the alternative, even
H assuming that no statements of P. Ws. 2 and 3 had been
 GURDEEP SINGH v. STATE OF PUNJAB AND ORS. 661


recorded under Section 161 Cr.P.C. this factor destroys the A
substratum of the prosecution story in a far greater measure
as it must then be taken that their statements were being
recorded for the first time in Court which would rob them of
much of their evidentiary value. In this case, w~ find that the two
witnesses are none other than the brother and the father of the B
deceased.

       9. We are, therefore, of the opinion that as a result of the
cumulative discussion above, thE;i appellant has to succeed. We,
accordingly, allow this appeal, set a.side.the judgments of the C
courts below insofar as he is concerned and order his acquittal.
Bail bonds stand discharged.

D.G.                                             Appeal allowed.