GURDIP SINGHversusSTATE OF PUNJAB

                     [2013] 8 S.C.R. 277


                      GURDIP SINGH                                A
                             v.
                    STATE OF PUNJAB
            (Criminal Appeal No. 1308 of 2013)
                   SEPTEMBER 3, 2013
                                                                  B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
               KURIAN JOSEPH, JJ.]

     Penal Code, 1860 - ss.3048 & 489A - Death of married
woman - Allegations of cruelty and harassment - Two               C
accused- husband and father-in-law - Conviction of appellant
(father-in-law) u/ss. 3048 & 498A - By courts below - Challenge
to - Held: Evidence that deceased had been harassed by both
the accused before two weeks of her death - Clear proof in
evidence of PWs 1 & 2 that appellant was taunting the             D
deceased demanding dowry - Deceased was even sent out
from her matrimonial home on this account - Yet, for conviction
u/s.3048, it is obligatory on the part of the prosecution to
establish that the death occurred within seven years of
marriage - Sans the requirement of seven years, the offence       E
would fall only uls.498A - On facts, trial Court went only on
assumptions with regard to the date of marriage - S.3048 /PC
permits presumption of law only in a given set of facts and
not presumption of fact - Fact is to be proved and then only,
law will presume - In the instant case, prosecution failed to     F
establish the crucial fact on the death occurring within seven
years of marriage - Conviction u/s.3048 /PC set aside, but
conviction uls.498A /PC confirmed - Evidence Act, 1872 -
s.1138.

      Penal Code, 1860 - s.489A - Cruelty by husband or           G
relative of a married woman -Conviction uls.498A - Held: No
requirement u/s.498A that the cruelty should be within seven
years of ma"iage - No invariable necessity u/s. 498A that the
cruelty should be in connection with the demand for dowry.
                             277                                  H
    278     SUPREME COURT REPORTS              [2013] 8 S.C.R.


A      Penal Code, 1860 - ss.3048 & 489A - Introduction of -
  Purpose - Held: S. 498A was introduced to "suitably deaf
  effectively not only with cases of dowry deaths but also cases
  of cruelty to married women by their in-laws" - s.3048 was
  introduced to make the penal provisions "more stringent and
B effective".

       Penal Code, 1860 - s.3048 - Words "shal! be deemed"
  - Meaning - Held: Though the expression "presumed" is not
  used u/s.3048 of /PC, the words "shal! be deemed" uls.3048
C carry, literal/y and under law, the same meaning since the
  intent and context requires such attribution.

       Evidence Act, 1872 - ss. 113A and 1138 - Introduction
  of - Vide amendments -Effect - Held: The amendments are
  only consequential to the amendments under the Dowry
D Prohibition Act and /PC - Under s.113A, the expression is
  "court may presume" whereas u/s.1138, the expression is
  "court shall presume" - The Parliament intended the
  provisions to be more stringent and effective in view of the
  growing social evil as can be seen from the Statement of
E Objects and Reasons in the amending Acts - Dowry
  Prohibition Act, 1961 -Penal Code, 1860.

       In a case relating to the death of a married woman,
  the appellant-father-in-law was the second accused. First
  accused was husband of the deceased, who is no more
F alive.

       The Sessions Court had convicted both the accused
  under Section 498A of IPC for rigorous imprisonment for
  a period of two years, and under Section 3048 of IPC for
G rigorous imprisonment for a period of ten years. The
  sentences were ordered to run concurrently. The High
  Court, in appeal, had maintained the conviction but
  reduced the sentence under Section 3048 of IPC to
  seven years rigorous imprisonment and confirmed the
H rest.
       GURDIP SINGH v. STATE OF PUNJAB                 279


    The appellant challenged his conviction under             A
Sections 498A/3048 before this Court.
    Partly allowing the appeal, the Court
    HELD: 1.1."Dowry death" in the Indian Penal Code
was introduced under Section 3048 as per Act 43of1986.        B
Under the said provision, if a married woman dies, (i) .Qll
account of burns or bodily injury or dies otherwise than
under normal circumstances, (ii) such death occurs
within seven years of marriage, (iii) it is shown that she
was subjected to cruelty or harassment by her husband         C
or any relative, (iv) such cruelty or harassment be soon
before her death and (v) such cruelty or harassment by
the husband or his relative be or for or in connection with
demand for dowry. such death is called dowry death
under Section 3048 of IPC and the husband or relative         D
shall be presumed to have caused the dowry death.
Section 498A of IPC deals with the offence of cruelty by
the husband or relative. If a married woman is subjected
to cruelty by the husband or his relative, he is liable for
conviction under Section 498A. There is no requirement        E
under Section 498A that the cruelty should be within
seven years of marriage. It is also not invariably
necessary under Section 498A that the cruelty should be
in connection with the demand for dowry. Section 498A
was introduced as per Act 46 of 1983 to "suitably deal        F
effectively not only with cases of dowry deaths but also
cases of cruelty to married women by their in-laws" and
Section 3048 was introduced as per Act 43 of 1986 to
make the penal provisions "more stringent and effective".
[Para 5) [284-D-H; 285-A-8]
                                                              G
     1.2. Though the expression "presumed" is not used
under Section 3048 of IPC, the words "shall be deemed"
under Section 3048 carry, literally and under law, the
same meaning since the intent and context requires such
attribution. Section 3048 of IPC on dowry death and           H
    280      SUPREME COURT REPORTS         [2013] 8 S.C.R.


A Section 1138 of the Indian Evidence Act, 1872, on
  presumption, were introduced by the same Act, i.e., Act
  43of1986, with effect from 19.11.1986, and Section 498A
  of IPC and Section 113A of the Evidence Act were
  introduced by Act 46of1983, with effect from 25.12.1983.
B [Para 7] [286-G-H; 287-A-8]

       3. The amendments under the Evidence Act are only
  consequential to the amendments under the Dowry
  Prohibition Act, 1961 and the Indian Penal Code. Under
  Section 113A, the expression is "court may presume"
C whereas under Section 1138, the expression is "court
  shall presume". The Parliament c!id intend the provisions
  to be more stringent and effective in view of the growing
  social evil as can be seen from the Statement of Objects
  and Reasons in the amending Act. [Para 8] [287-8-C]
D
       4. Being a mandatory preS'llmption on the guilty
  conduct of an accused under Section 3048, it is for the
  prosecution to first show the availability of all the
  ingredients of the offence so as .to shift the burden of
E proof in terms of Section 1138 of the Evidence Act. Once
  all the ingredients are present, the presumption of
  innocence fades away. [Para 9] [287-D-E]

          91st Report on Dowry Deaths and Law Reform by
          Justice K.K. Mathew, Chairman, Law Commission of
F         India on 10-8-1983 - referred to.

      4. In the instant case, it has clearly been proved in
  the evidence of PW-1 and PW-2' that the appellant/
  accused was also taunting the deceased demanding
G dowry. They were all staying in the_ same premises. The
  issue had also been brought 'before the Village
  Panchayat many times. The deceased was even sent out
  from her matrimonial home on this·account. There is also
  evidence that the deceased had been harassed by both
H accused before two weeks of her death. Yet with all
       GURDIP SINGH v. STATE OF PUNJAB                 281


these, for conviction under Section 3048 of IPC, it is        A
obligatory on the part of the prosecution to establish that
the death occurred within seven years of marriage. Sans
the requirement of seven years, in this case, the offence
would fall only under Section 498A of IPC. And for that
matter, sans any of the five ingredients of Section 3048      B
IPC, the offence will fall out of Section 3048 of IPC. The
Sessions Court has not addressed this crucial aspect
and has gone only on assumptions with regard to the
date of marriage. Neither PW-1, father of the deceased nor
PW-2 Sarpanch or any other witness has given any              c
evidence with regard to the date of marriage. No
document whatsoever has been produced with regard to
the marriage. There is no evidence even with regard to
the date of birth of the children. Also, according to PW-1
father of the deceased, the marriage had taken place five     D
to seven years back. DW-1 elder devrani/sister-in-law of
the deceased had stated in her evidence that the marriage
had taken place around eleven years back. Nobody has
even spoken on the exact date of marriage. The death
reportedly took place on 06.04.1990. The evidence was
                                                              E
recorded in 1996. The High Court counted the eleven
years from the date of recording of the evidence.
However, on going through the evidence, it is not at all
clear as to whether the same is with respect to the date
of tendering evidence or with respect to the date of the
incident. In view of the mandatory presumption of law         F
under Section 3048 of IPC/1138 of the Evidence Act, it
is obligatory on the part of the prosecution to establish
that the death occurred within seven years of marriage.
Section 3048 of IPC permits presumption of law only in
a given set of facts and not presumption of fact. Fact is     G
to be proved and then only, law will presume. In the
instant case, prosecution has failed to establish the
crucial fact on the death occurring within seven years of
marriage. [Para 10] [288-A-H; 289-A-C]
                                                              H
    282       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A       5. The conviction of the appellant under Section
  3048 IPC is set aside. The conviction under Section 498A
  IPC is confirmed. However, taking note of the late evening
  age of the appellant, the substantive sentence is limited
  to the period undergone by him during the investigation/
B trial. [Para 11) [289-D-E]

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1308 of 2013.

      From the Judgment & Order datd 11.08.2008 of the High
C Court of Punjab & Haryana at Chandigarh in Criminal Appeal
  No. 676/DB of 1997.

          lshma Randhawa, S.K. Verma for the Appellant.

      Saurabh Ajay Gupta. AAG, Kuldip Singh for the
D Respondent.

          The Judgment of the Court was delivered by

      KURIAN, J. 1. Close to be called a centenarian, the
  appellant is before us challenging the conviction and sentence
E under Sections 498A/304B of the Indian Penal Code (45 of
  1860) (hereinafter referred to as 'IPC').

         2. Appellant is the second accused in Sessions Case No.
    41/1991 on the file of Additional Sessions Judge, Amritsar.
F   First accused is his son. The prosecution case as succinctly
    summarized by the High Court in the impugned judgment is
    extracted below:
          "Harjit Kaur, daughter of Mohinder Singh was married with
          Mohan Singh accused. Mohinder Singh along with Hari
G         Singh Sarpanch, who was his brother from the
          brotherhood, had gone to village Gharyala to see his
          daughter Harjit Kaur because the in-laws of Harjit Kaur
          were in the habit of picking up quarrels with her for bringing
          less dowry. The in-laws of Harjit Kaur used to pressurize
H         her to bring scooter, refrigerator and cash from her parents.
   GURDIP SINGH v. STATE OF PUNJAB                     283
             [KURIAN, J.]
On her failure to do so, they after conspiring with each      A
other, threatened to kill her by giving some poisonous
substance. Gurdip Singh, father-in-law of Harjit Kaur, on
many occasions told Harjit Kaur that in case she failed to
bring the above said articles before Rabi crop, then after
murdering her, he will re-marry his son. This fact was        B
disclosed to Mohinder Singh by Harjit Kaur on many
occasions but he ignored the same with the hope that Harjit
Kaur may settle in her in-laws house.

The prosecution story further is that on 6.4.1990, Mohinder   C
Singh along with Hari Singh had gone to the residential
farm house of Mohan Singh accused here the dead body
of Harjit Kaur was lying on the ground. No one was present
in the house. Mohinder Singh suspected that his daughter
Harjit Kaur had consumed some poisonous substance out
of frustration or the accused have murdered her by            D
administering her some poisonous substance. Hari Singh
was deputed to look after the dead body.

Mohinder Singh made his statement before the police on
6.4.1990 on the basis of which the present case was           E
registered.

The investigation in the case was conducted and after the
completion of investigation, challan was presented against
the appellants in the Court.
                                                              F
The accused were charge-sheeted under Sections 498-
A/304-B IPC to which they pleaded not guilty and claimed
trial.

To substantiate the charge against the accused, the           G
prosecution examined PW-1 Mohinder Singh, PW-2 Hari
Singh, PW-3 Gurcharan Singh, PW-4 Rishi Ram, PW-5
ASI Gulbag Singh, PW-6 Harbhajan Singh, PW-7 SI Amrik
Singh and PW-8 Dr. Ram Krishan Sharma."
                                                              H
      284          SUPREME COURT REPORTS             [2013) 8 S . C.R.


 A          3. The Sessions Court convicted both the accused under
      Section 498A of IPC for rigorous imprisonment for a period of
      two years and fine of Rs.500/- each ~nd, in default of payment
      of fine, for another three months, and under Section 3048 of
      IPC for rigorous imprisonment for a period of ten years and fine
 8    of Rs.500/- each and, in default of payment of fine, for another
      three months. The sentences were ordered to run concurrently.
      The High Court, in appeal, maintained the conviction but
      reduced the sentence under Section 3048 of IPC to seven
      years rigorous imprisonment and confirmed the rest.
 c        4. It is reported that the husband-first accused Mohan
      Singh is no more.

       5. "Dowry death" in the Indian Penal Code was introduced
   under Section 3048 as per Act 43 of 1986. Under the said
 D provision, if a married woman dies,

            (i)     on account of burns or bodily injury or dies
                    otherwise than under normal circumstances.

            (ii)    such death occurs within seven years of marriage.
 E
            (iii)   it is shown that she was subjected to cruelty or
                    harassment by her husband or any relative.

            (iv)    such cruelty or harassment be soon before her
. F                 death and

            (v)     such cruelty or harassment by the husband or his
                    relative be or for or in connection with demand for
                    dowry,

 G such death is called dowry death under Section 3048 of IPC
   and the husband or relative shall be presumed to have caused
   the dowry death. Section 498A of JPC deals with the offence
   of cruelty by the husband or relative. If a married woman is
   subjected to cruelty by the husband or his relative, he is liable
 H for conviction under Section 498A. There is no requirement
           GURDIP SINGH v. STATE OF PUNJAB                    285
                      [KURIAN, J.]
under Section 498A that the cruelty should be within seven A
years of marriage. It is also not invariably necessary under
Section 498A that the cruelty should be in connection with the
demand for dowry. It is interesting to note that Section 498A
was introduced as per Act 46 of 1983 to "suitably deal
effectively not only with cases of dowry deaths but also cases B
of cruelty to married women by their in-laws" and Section 304B
was introduced as per Act 43 of 1986 to make the penal
provisions "more stringent and effective".

                                            (Emphasis supplied)       C

     6. In this context, the background for the amendments
would be a relevant reference. In the 91st Report on Dowry
Deaths and Law Reform submitted by Justice K. K. Mathew,
Chairman, Law Commission of India, on 10.08.1983, it is
stated at Paragraphs 1.3 to 1.5 as follows:                D

    "1.3 If, in a particular incident of dowry death, the facts are
    such as to satisfy the legal ingredients of an offence
    already known to the law, and if those facts can be proved
    without much difficulty, the existing criminal law can be         E
    resorted to for bringing the offender to book. In practice,
    however, two main impediments arise-

     (i)     either the facts do not fully fit into the pigeon-hole
             of any known offence: or
                                                                      F
     (ii)    the peculiarities of the situation are such that proof
             of directly incriminating facts is thereby rendered
             difficult.

           The first impediment mentioned above is aptly
    illustrated by the situation where a woman takes her life G
    with her own hands. though she is driven to it by ill-
    treatment. This situation may not fit into any existing
    pigeon-hole in the list of offences recognized by the general
    criminal law of the country, except where there is definite
    proof of instigation, encouragement or other conduct that H
    286       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A         amounts to "abetment" of suicide. Though, according to
          newspaper reports, there have been judgments of lower
          courts which seem to construe "abetment" in this context
          widely, the position is not beyond doubt.

                 The second situation mentioned above finds
B
          illustration in those incidents in which even though the
          circumstances raise a strong suspicion that the death was
          not accidental, yet, proof beyond reasonable doubt may
          not be forthcoming that the case was really one of
          homicide. Thus, there is need to address oneself to the
c         substantive criminal law as well as to the law of evidence.

          1.4. Speaking of the law of evidence, it may be mentioned
          that one of the devices by which the law usually tries to
          bridge the gulf between one fact and another, where the
D         gulf is so wide that it cannot be crossed with the help of
          the normal rules-of evidence, is the device of inserting
          presumptions. In this sense, it is-possible to consider the
          question whether, on the topic under discussion, any
          presumption rendering the proof of facts in issue less
E         difficult, ought to be inserted into the law.

          1.5. Coming to substantive criminal law, if a deficiency is
          found to exist in such law, it can be filled up only by
          creating a new offence. Before doing so, of course, the
          wise law maker is expected to take into account a number
F         of aspects, including the nuances of ethics, the ever-
          fluctuating winds of public opinion, the Demands of law
          enforcement and practical realities."

                                               (Emphasis supplied)
G
       7. Though the expression "presumed" is not used under
  Section 3048 of IPC, the words "shall be deemed" under
  Section 3048 carry, literally and under law, the same meaning
  since the intent and context requires such attribution. Section
H 3048 of IPC on dowry death and Section 1138 of the Indian
        GURDIP SINGH v. STATE OF PUNJAB                        287
                   [KURIAN, J.]
Evidence Act, 1872, on presumption, were introduced by the             A
same Act, i.e., Act 43 of 1986, with effect from 19.11.1986, and
Section 498A of IPC and Section 113A of the Evidence Act
were introduced by Act 46 of 1983, with effect from 25.12.1983.

     8. The amendments under the Evidence Act are only
                                                                       8
consequential to the amendments under the Dowry Prohibition
Act, 1961 and the Indian Penal Code. It is significant to note
that under Section 113A, the expression is "court may presume"
whereas under Section 1138, the expression is "court shall
presume". The Parliament did intend the provisions to be more
stringent and effective in view of the growing social evil as can      C
be seen from the Statement of Objects and Reasons in the
amending Act.                               ·

      9. Being a mandatory presumption on the guilty conduct
of an accused under Section 3048, it is for the prosecution to         o
first show the availability of all the ingredients of the offence so
as to shift the burden of proof in terms of Section 1138 of the
Evidence Act. Once all the ingredients are present, the
presumption of innocence fades away. Yet another reference
to Paragraph 1.8 in the 91 st Report of the Law Commission             E
of India would be fruitful in this context:

            "1.8. Those who have studied crime and its
     incidence know that once a serious crime is committed.
     detection is a difficult matter and still more difficult is
     successful prosecution of the offender. Crimes that lead F
     to dowry deaths are almost invariably committed within the
     safe precincts of a residential house. The criminal is a
     member of the family: other members of the family (if
     residing in the same house) are either guilty associates
     in crime. or silent but conniving witnesses to it. In any case. G
     the shackles of the family are so strong that truth may not
     come out of the chains. There would be no other eye
     witnesses. except for members of the family."

                                            (Emphasis supplied)        H
    288      SUPREME COURT REPORTS                [2013) 8 S.C.R.


A        10. H;iiving carefufly gone through the entire evidence as
    appreciated by both the Sessions Court as well as the High
    Court, we are not inclined to take a different view except on
    one aspect, viz., the date of marriage. As far as other aspects
    regarding cruelty or harassment are concerned, it has clearly
8 been proved in the evidence of PW-1 and PW-2 that the
    appellant/accused was also taunting the deceased demanding
    dowry. They were all staying in the same premises. The issue
    had also been brought before the Village Panchayat many
    times. The deceased was even sent out from her matrimonial
C home on this a~count. There is also evidence that the
    deceased had been harassed by both accused before two
    weeks of her death. Yet with all these, for conviction under
    Section 3048 of IPC, it is obligatory on the part of the
    prosecution to establish that the death occurred within seven
    years of marriage. Sans the requirement of seven years, in this
0
    case, the offence would fall only under Section 498A of IPC.
    And for that matter, sans any of the five ingredients discussed
    at Paragraph 6 above herein, the offence will fall out of Section
    3048 of IPC. The Sessions Court, unfortunately, has not
    addressed this crucial aspect and has gone only on
E assumptions with regard to the date of marriage. It has to be
    noted that the deceased had two children, the son had died
    earlier and there is. a surviving daughter who is stated to be
    around seven years. Whether the said age of the daughter is
    at the time of evidence or at the time of the death of the
F deceased, is not clear. Neither PW-1, father of the deceased
    nor PW-2 Sarpanch or any other witness has given any
    evidence with regard to the date of marriage. No document
    whatsoever has been produced with regard to the marriage.
    There is no evidence even with regard to the date of birth of
G the children. Also, according to PW-1 father of the deceased,
    the marriage had taken place five to seven years back. It has
    to be noted that DW-1 elder devrani/sister-in-law of the
    deceased had stated in her evidence that the marriage had
  1
    taken place around eleven years back. Nobody has even
H spoken on the exact date of marriage~ The death reportedly
          GURDIP SINGH v. STATE OF PUNJAB                   289
                     (KURIAN, J.]
took place on 06.04.1990. The evidence was recorded in 1996.       A
The High Court counted the eleven years from the date of
recording of the evidence. However, on going through the
evidence, it is not at all clear as to whether the same is with
respect to the date of tendering evidence or with respect to the
date of the incident. In view of the mandatory presumption of      B
law under Section 3048 of IPC/1138 of the Evidence Act, it is
obligatory on the part of th·e prosecution to establish that the
death occurred within seven years of marriage. Section 3048
of IPC permits presumption of law only in a given set of facts
and not presumption of fact. Fact is to be proved and then only,   c
law will presume. In the instant case, prosecution has failed to
establish the crucial fact on the death occurring within seven
years of marriage.

     11. Hence, we set aside the conviction of the appellant
under Section 3048 of the Indian Penal Code (45 of 1860). The      D
conviction under Section 498A of the Indian Penal Code (45
of 1860) is confirmed. However, taking note of the late evening
age of the appellant, the substantive sentence is limited to the
period undergone by him during the investigation/trial.
                                                                   E
     12. The appeal is allowed as above.

 8.8.B.                                 Appeal partly allowed ..