16/06/2014
Recent Supreme Court Judgement on the case:GURDIP SINGH VS. STATE OF PUNJAB
[Criminal Appeal No. 1308 of 2013]
Facts:-
Appellant is the second accused(Husbands Father). First accused is his son(Husband). Harjit Kaur, daughter of Mohinder Singh was married with Mohan Singh accused. Mohinder Singh along with Hari 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 her to bring scooter, refrigerator and cash from her parents. On her failure to do so, they after conspiring with each 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 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.
Mohinder 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 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 registered.
The investigation in the case was conducted and after the completion of investigation, challan was presented against the appellants in the Court. The accused were charge-sheeted under Sections 498-A/304-B IPC to which they pleaded not guilty and claimed trial.
Judgement:-
The Sessions Court convicted both the accused under Section 498A of IPC, and under Section 304B of IPC. The sentences were ordered to run concurrently. The High Court, in appeal, maintained the conviction but reduced the sentence under Section 304B of IPC to seven years rigorous imprisonment and confirmed the rest.
It is reported that the husband-first accused Mohan Singh is no more.
Ratio Decendi:-
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 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
Being a mandatory presumption on the guilty conduct of an accused under Section 304B, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113B of the Evidence Act. Once all the ingredients are present, the presumption of innocence fades away.
1 Having carefully 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. 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 accused before two weeks of her death. Yet with all these, for conviction under Section 304B 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 case, the offence would fall only under Section 498A of IPC.
The Sessions Court, unfortunately, has not addressed this crucial aspect and has gone only on 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 deceased, is not clear.
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 to seven years back. 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 under Section 304B of IPC/113B 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 304B 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, law will presume. In the instant case, prosecution has failed to establish the crucial fact on the death occurring within seven years of marriage.
Hence, the court set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The 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.
