304B conviction set aside as soon before death an ingredient not proved: Supreme Court

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1902 OF 2010
SHINDO ALIAS SAWINDER KAUR AND ANR. .. APPELLANT(S)

vs.

STATE OF PUNJAB .. RESPONDENT(S)

O
R D E R

This appeal arises out of the following facts:

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 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 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 the incident and two children had been born

from the marriage and that during the course of the

-2-

deliberations before the marriage and even thereafter

several articles of dowry had been given to satisfy the
demands of the two accused Shindo-her mother-in-law and

Paramjit Kaur-her 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 present along with

her in the house had asked her to bring more money from

her parents but she had replied that as her 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 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 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

-3-

the needful whereupon the Judicial Magistrate, Ist 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

ASI. Balbir Kaur died on the 23rd march 1999 and a case

under Sections 304-B and 498-A was registered. On the

completion of the investigation a charge under Section

302/34 and in the alternative 304-B/34 read with Section

498-A of the 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, 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% burn injuries and would

not have been able to give a dying declaration to the ASI.

The second dying declaration was rejected as well on the

additional ground that 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

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.

-4-

An appeal was thereafter taken by the State to the

Punjab and Haryana High Court. The High Court has endorsed

the 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 and as the death was

undoubtedly unnatural the ingredients of Section 304-B 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 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.This

appeal has been filed challenging the order of the High

Court.

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 to the demands of

dowry was uncertain his statement could not be relied

-5-

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 confronted with his statement under Section 161 of the

Cr.P.C. 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) and PH(3) dated 20th

March, 1999 which he had had made before the CJM requesting

that the the dying declaration of his daughter be 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 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 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

-6-

examination, it was clear that a person with 100% burn

injuries could also make a lucid 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, Dr.

Rahul Gupta had 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.

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 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 dowry had been 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

-7-

raised. We accordingly allow this appeal; set aside the

judgment/order of the High Court.

The appellants are in custody; they shall be

released forthwith if not required in any other case.
……………..J.
(HARJIT SINGH BEDI)

New Delhi,
March 31, 2011.
………………..J.
(CHANDRAMAULI KR. PRASAD)

 

Judgement