SHINDO ALIAS SAWINDER KAUR AND ANR.versusSTATE OF PUNJAB

--
                      [2011] 4 S.C.R. 117

        SHINDO ALIAS SAWINDER KAUR AND ANR.                          A
                                V.
                     STATE OF PUNJAB
             (Criminal Appeal No. 1902 of 2010)
                       MARCH 31, 2011
                                                                     B
     [HARJIT SINGH BEDI ·AND CHANDRAMAULI KR.
                    PRASAD, JJ.]

       Penal Code, 1860: ss. 3048, 498A - Dowry death -
 Allegation that sister-in-law and mother-in-law of the victim-      C
 deceased poured kerosene on her and lit fire as she could
 not satisfy their demand for dowry - Dying declarations
 recorded by the police officer and the Magistrate - Trial court
 did not find dying declarations reliable for the reason that the
 deceased had suffered 100% burn injuries and would not              D
 have been in a position to give dying declarations - Order of
 acquittal - High Court endorsed the view of trial court that both
 the dying declarations were not reliable, however, relying on
 the evidence of father of the deceased held that the demand
 for dowry soon before the death had been made and as the            E
 death was unnatural, the ingredients of s.3048 were spelt
 against the accused - Conviction - On appeal, held: In
 statement made uls.161, Cr.P.C., the father of the deceased
 admitted that allegation of dowry demand was not made by
 him - Improvement made in his evidence in court clearly             F
 spelt out a case of doubt with regard to the veracity of his
 evidence - There was no reference whatsoever to the
 accused-appellants either to demand of dowry or their
 involvement in any manner - The doctor who gave fitness
 certificate to the deceased for making statement was not cited      G
 as a prosecution witness - The evidence of the doctor (who
 gave post mortem report) was general in nature with regard
 to the capacity of 100% burnt victim to make a statement -
 No doubt, death was unnatural and had taken place within
                               117                                   H
                                                                       --
    118        SUPREME COURT REPORTS               [2011] 4 S.C.R.


A seven years of the marriage but the third ingredient of dowry
    demand soon before the death was not proved - In this view
    of the matter, the presumption u!s. 1138 of the Evidence Act
    could not be raised - Conviction set aside - Evidence Act,
    1872 - s.1138.
B
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1902 of 2010.

      From the Judgment & Order dated 17.2.2010 of the High
  Court of Punjab and Haryana at Chandigarh in Criminal Appeal
C No. 394-DBA of 2011.

        N. Rai, Tara Chandra Shrama and Neelam Sharma for the
    Appellants.

          Kuldip Singh for the Respondent.
D
          The following Order of the Court was delivered

                               ORDER

          This appeal arises out of the following facts:
E
        On the 19th March, 1999 ASI Gurmit Singh posted at
  police station, Mehta received information from the Guru Nanak
  Dev Hospital, Amritsar to the effect that one Balbir Kaur was
  lying admitted in the hospital with severe burn injuries. The
F police officer rushed to the hospital at about 8.15 p.m. and
  found her lying admitted in the 5th Surgical Ward. An
  application was thereafter moved by the police officer seeking
  the opinion of the doctor regarding her fitness to make a
  statement as her condition was critical. The ASI then went on
G to record the statement (Ext.PC). In her statement Balbir Kaur
  stated that she had been married with Jarnail Singh about three
  years prior to the date of t_he incident and two children had been
  born from the marriage and that during the course of the
  deliberations before the marriage and even thereafter several
H articles of dowry had been given to satisfy the demands of the
--
        SHINDO ALIAS SAWINDER KAUR AND ANR. v,                   119
                   STATE OF PUNJAB
     two accused Shindo-her mother-in-law and Paramjit Kaur-her         A
     married sister-in-law. She further stated that on account of the
     harassment meted out to her by the two accused an additional
     sum of rupees one lakh had been obtained by her from her
     father and handed over to them. She further went on to say that
     at about 2.20 p.m. on that date the two accused who were           B
     present along with her in the house had asked her to bring more
     money from her parents but she had replied that as tier father
     had already given sufficient dowry as per his status nothing
     more would be brought by her and this had apparently annoyed
     the accused and whereas Shindo had poured kerosene oil on          c
     her, Paramjit Kaur had set her alight causing severe burn
     injuries. She further stated that on receiving information about
     the happening, her husband Jarnail Singh had rushed back from
     his shop and after arranging a vehicle had taken her to Amritsar
     and had got her admitted to the hospital. On the very next day     D
     i.e. on the 20th March, 1999 Ajit Singh (PW.2) Balbir Kaur's
     father, moved an application (Ext. P.H.) requesting the Chief
     Judicial Magistrate, Amritsar to record the statement of his
     daughter as the police was not doing the necessary
     investigations. The CJM directed the duty Magistrate to do the     E
     needful whereupon the Judicial Magistrate, 1st Class, recorded
     another statement of Balbir Kaur in the hospital after obtaining
     a certificate of fitness from Dr. Rahul Gupta, the attending
     doctor. In this statement she gave almost the same details as
     in the statement made to the ASL Balbir Kaur died on the 23rd
     march 1999 and a case under Sections 304-B and 498-A was           F
     registered. On the completion of the investigation a charge
     under Section 302/34 and in the alternative 304-8/34 read with
     Section 498-A ofthe IPC was framed against the two accused.
     The Trial Court in the Course of an elaborate judgment
     observed that the two dying declarations, one made by the ASI,     G
     and another to the Judicial Magistrate could not be relied upon,
     primarily for the reason that Balbir Kaur was in a very serious
     condition with 100% bum injuries and would not have been able
     to give a dying declaration to the ASL The second dying
     declaration was rejected as well on the additional ground that     H
                                                                        --
    120      SUPREME COURT REPORTS                [2011) 4 S.C.R.


A Dr. Rahul Gupta who had given the endorsement of her fitness
  had not even been cited as a prosecution witness during the
  trial. The trial Judge also rejected the evidence with regard to
  the demand of dowry of PW.2 Ajit Singh, as it was brought out
  during the course of the cross examination that in his statement
B under Sec.161 Cr.P.C. he had not referred to any such
  demands having been made by the accused. The Trial Court
  accordingly acquitted both the accused.

       An appeal was thereafter taken by the State to the Punjab
  and Haryana High Court. The High Court has endorsed the
C opinion of the Trial Court that both the dying declarations
  deserved to be rejected. However, the High Court relying on
  the evidence of PW.2, held that demands for dowry soon before
  the death had indeed been made and that some parts of two
  dying declarations supported the allegations of such demands
D and as the death was undoubtedly unnatural the ingredients of
  Section 304-8 were spelt out against the accused. The
  judgment of the Trial Court was accordingly reversed and the
  accused were convicted under Section 304-B of the IPC and
  498-A of the IPC and sentenced to imprisonment for seven
E years and under 498-A to two years with a fine of Rs.5000/- in
  default, to further undergo rigorous imprisonment for a period
  of six months, both the sentences to run concurrently. T h i s
  appeal has been filed challenging the order of the High Court.
F       During the course of the hearing today Mr. Nagender Rai,
  the learned senior counsel for the appellant, has argued that in
  the light of the fact that the dying declarations had been rejected
  by both the Courts the only other evidence if at all was the
  statement of PW.2 Ajit Singh and as his evidence pertaining
G to the demands of dowry was uncertain his statement could not
  be relied upon. He has also taken us to the evidence of PW.2
  Ajit Singh and we have gone through the same very carefully.
  In his examination in chief he did refer to the fact that demands
  for dowry had been made and that Balbir Kaur, his daughter,
  had been harassed on that account. However, he was
H
--
         SHINDO ALIAS SAWINDER
                        I
                               KAUR AND ANR. v.                   121
                    STA1E OF PUNJAB
      confronted with his stat~ment under Section 161 of the Cr.P.C.     A
      and has forced to admit that no such demand had been referred
      to in the said statement. We find that the improvements made
      by PW.2 Ajit Singh in his evidence in Court clearly spells out a
      case of doubt with regard to the veracity of his evidence. It is
      also extremely significant that in the applications Exh. PH(2)     B
      and PH(3) dated 20th March, 1999 which he had had made
      before the CJM requesting that the the dying declaration of his
      daughterbe recorded, he had referred to the fact that the
      demands for dowry had been made by her husband Jarnail
      Singh and he was the one to have set her alight. We find that      c
      there is no reference whatsoever to the appellants before us
      either to the demands of dowry or their involvement in any
      manner.
             Mr. Kuldip Singh, the learned State counsel has however
       argued that the dying declarations particularly the one recorded D
       by the Magistrate required to be accepted. He has pointed out
       that though Dr. Rahul Gupta had not been cited as a witness
       but from the evidence of the Dr.Jagdish Singh Gill(Pw.1} who
       had conducted the post-mortem examination, it was clear that
       a person with 100% burn injuries could also make a lucid E
       statement and as such it was apparent that Balbir Kaur had
       been in a fit condition to make a statement. We see from the
       evidence of PW.1 that his evidence was general in nature with
       regard to the capacity of a person suffering from 100% burn
       injuries to make a statement. In the case before us, however, F
       Dr. Rahul Gupta ttad given a positive opinion that she was in a
       fit condition to make a statement but he was not even cited as
       a prosecution witness. Both the Courts have therefore found that
       the two dying declarations were not trustworthy or capable of
     . reliance.                                                        G
           We also notice that the High Court was dealing with an
      appeal against acquittal. Undoubtedly in a case of a dowry
      death under Section 304-B, a presumption of Sec.113-B does
      arise against the accused. However, the presumption is             H
                                                                         --
    122       SUPREME COURT REPORTS                [2011] 4 S.C.R.

                                                          /
A relateable to the fact that the prosecution must first spell out the
  ingredients of the offence and then only can a presumption
  arise. In the present case we find that the death was an unnatural
  one and had taken place within seven years of the marriage
  but the third ingredient that any demand for Clowry had been
B made soon before the death has not been proved. In this view
  of the matter the presumption under Section. 113-B of the
  evidence cannot be raised. We accordingly allow this appeal;
  set aside the judgment/order of the High Court.

C        The appellants are in custody; they shall be released
    forthwith if not required in any other case.
    D.G.                                            Appeal allowed.