JAGJIT SINGH versus STATE OF PUNJAB on 26 September 2018

JAGJIT SINGH

v.

STATE OF PUNJAB

(Criminal Appeal No.408 of 2017)

SEPTEMBER 26, 2018

[RANJAN GOGOI, NAVIN SINHA AND K. M. JOSEPH, JJ.]

Constitution of India – Art.136 – Contours of jurisdictionunder – Appellant’s wife died along with her child by way ofdrowning in a river within seven years of her marriage – Trial Courtconvicted the appellant u/s.304-B of IPC – Conviction affirmed bythe High Court, however, it reduced the sentence from 8 yearsrigorous imprisonment to a period of 7 years – Appellant contendedthat there was neither cruelty nor any demand for dowry – Onappeal, held: In various Supreme Court judgments, it has been heldthat in an appeal u/Art.136, the Court will not reassess the evidenceat large, particularly, when it has been concurrently accepted bythe High Court and the Courts below – For interference of SupremeCourt something more must be shown such as, violation of principlesof natural justice in the trial, error of law or procedure, by errorsof record or misreading of evidence, non-consideration of glaringinconsistencies in the evidence which demolish the prosecution caseor where the conclusion of the High Court is manifestly perverseand unsupportable and the like – In the instant case, there is materialin the form of testimony of PW-1 and PW-3 regarding dowryharassment – On 16.02.2001, PW-1 stated that appellant’s wifecontacted him from a PCO and informed him that all the accused,including appellant were maltreating her – On the same date, PW-3stated that appellant’s wife had visited her and informed thatappellant had beaten her – Furthermore, PW-5 deposed that hesaw appellant’s wife on 16.02.2001 at the PCO, though he couldnot hear her but saw her weeping – Doctor who conducted postmortem opined that death occurred on 16.02.2001/17.02.2001 –Therefore, the law enjoins u/s.113-B of the Evidence Act drawingof the presumption that the accused has committed dowry death –The view taken by trial Court and affirmed by the High Court onbasis of the material available on record cannot be said to be

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Amanifestly perverse – Thus, interference by the Supreme Court wouldnot be justified – Penal Code, 1860 – s.304-B – Evidence Act, 1872– s.113-B.

Dismissing the appeal, the Court

HELD: 1. Whether there is material within the meaning ofBSection 113-B of the Evidence Act for the Court to have come tothe conclusion that soon before the death, the deceased wastreated with cruelty or harassed for or in connection withdemand for dowry. In this regard here is a material in the form oftestimony of PW1 and PW3. The marriage between the accused-Cappellant and the deceased took place on 24.1.1998 and itsurvived only for a little over three (3) years. It is on 16.2.2001that the deceased goes to the house of PW3, her elder sister,spent 5 to 7 minutes, according to the said witness, complainedof cruelty or harassment by the accused and her own daughterwas with her. On the same day, she goes to the PCO, phones herDfather PW1 and tells him about the harassment. PW4 the personworking at the PCO has also stated that she was weeping, whenshe made a call. PW1 has spoken about the contents of thetelephonic conversation namely, all the accused weremaltreating and taunting her and that she was very much upsetEand the accused had thrown her out from their house with thedaughter and that she will not be allowed to come back without aMaruti car or Rupees two lakhs. If he is to be believed (In fact,two courts have), this would amount to cruelty/harassment inconnection with demand for dowry. Therefore, the law enjoinsunder Section 113-B of the Evidence Act drawing of theFpresumption that the accused has committed the dowry death.[Para 26] [424-E-H; 425-A-B]

2. Undoubtedly, the presumption is rebuttable at the handsof the accused by adducing evidence and discharging the reverseburden. Whether any such evidence in discharge with reverseGburden has been successfully adduced and whether it has beenconsidered, is the next question. The judgment of the trial Courtwould show that there is indeed a reference to the contents ofthe deposition of PW5, PW6 and PW8. [Para 27] [425-B-C]

3. Power under Article 136 seemingly, transcends alllimitations in regard to matters save where it is expresslyexcluded. However, by way of self imposed intrusions into suchpower, as also by way of deference to the scheme of theConstitution, the principles we have alluded to stand culled out.Apposite to the facts of this appeal, the principles are:1. Credibility of witnesses as commended to Courts below is notordinarily reappraised; 2. Is there misreading of evidence; 3. Isthere any non-consideration of glaring inconsistency in theevidence which demolishes the prosecution’s case; 4. Are thefindings inconsistent with the evidence; 5. Have the courtsoverlooked striking features in the evidence or is their failure toconsider important piece of evidence; 6. Whether the evidenceadduced by the prosecution fall short of the test of reliability andacceptability and it is therefore unsafe to act upon it. [Para 28][425-C-F]

4. PW3 stated that the deceased told her that on the nightprevious to 16.2.2001, the appellant had hurled abuse on herfather and when she prevented the appellant from abusing herfather, she was beaten even more. If this be true, indeed, it iscruelty near, in point of time and bearing a link proximate to thetime of her death immediately thereafter. (The doctor hasconducted post mortem on 28.2.2001. He has opined that theprobable time which elapsed between death and post-mortemwas about 12 days). This means that the tragic death took placeon the 16[th] or 17[th] of February, 2001. [Para 30] [426-B-D]

5. The trial Court has carefully discussed the possibleversions. The questions which this Court posed as troubling, mostof them, was present in its mind. The High Court has alsoreferred to the defence evidence including DW6 and DW8. Thetrial Court, however, finds solace in rejecting the defenceversion on the score that it cannot be squared with the deceasedvisiting the home of PW3 on 16.02.2001, and it takes the viewthat she would have been the last person for her to visit. It isalso found that the deceased did not go on being called by PW3.The trial Court had the advantage of watching the demeanor ofthe witnesses. This Court cannot hold that the view taken by thetrial Court as affirmed by the High Court is not warranted as AB

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Asuch by the materials on record. This Court cannot possibly holdthat the view taken by the courts is manifestly perverse or that itis based on no evidence. Even if persuaded to take a differentview as canvassed by the appellant, this Court would not bejustified in interfering. [Paras 31 and 32] [426-E-H; 427-A]

BSaravanabhavan and Govindaswamy v. State ofMadras AIR 1966 SC 1273 ; Mst. Dalbir Kaur andOthers v. State of Punjab (1976) 4 SCC 158 : [1977] 1SCR 280 – relied on.

Sushil Ansal v. State Through Central Bureau ofCInvestigation (2014) 6 SCC 173 : [2014] 9 SCR 571 ;Major Singh and Another v. State of Punjab (2015) 5SCC 201 : [2015] 5 SCR 777 ; Rajinder Singh v. Stateof Punjab (2015) 6 SCC 477 : [2015] 2 SCR 835 ;G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC152 : [2010] 2 SCR 380 ;Ashok Kumar v. State ofDHaryana (2010) 12 SCC 350 : [ 2010] 7 SCR 1119 –referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealGNo. 408 of 2017.

From the Judgment and Order dated 27.02.2015 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. S- 724 SBof 2002.

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Dr. J.P. Dhanda, Ms. Raj Rani Dhanda, Vineet Dhanda,N.A. Usmani, K.P. Singh, Gopi Chand, Advs. for the Appellant.

Ms. Jaspreet Gogia, Ms. Manadakini Singh, Advs. for theRespondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J. 1. The appeal after granting special leaveto appeal is filed by the appellant against the judgment of the High courtof Punjab and Haryana affirming the judgment of the trial Court convictingthe appellant under Section 304-B IPC but reducing the sentence from8 years rigorous imprisonment to a period of 7 years under the aforesaidsection. The appellant who was tried along with his parents and twobrothers was acquitted of the charge under Section 406 of the IndianPenal Code by the trial Court. In view of his conviction under Section304-B IPC, the trial Court did not find it necessary to record a separateconviction under Section 498-A IPC.

2. We heard Dr. J.P. Dhanda, learned counsel for the appellantand Ms. Jaspreet Gogia, learned counsel for the respondent-State.

3. There is no dispute that the marriage between the appellantand his deceased wife took place on 24[th] January, 1998. It is also not inthe region of controversy that she died well within seven years of hermarriage. It is undisputed that the death of the appellant’s wife wasunnatural and she died along with her child by way of drowning in ariver. In fact, PW8 - ASI in his deposition stated that both the deadbodies were secured together with one chunni. The only question iswhether the death is to be attributed to cruelty/harassment on the part ofthe appellant arising out of demand for dowry as contemplated underSection 304-B of the IPC.

4. Learned counsel for the appellant pointed out that the Court didnot consider the evidence given by the appellant and that neither crueltynor any demand for dowry is made out. It is contended that the appellant’swife apparently took her life along with that of her daughter on accountof the fact that she was consistently taunted by PW3 – the sister of theappellant’s wife who was married to an industrialist. The appellant wasearning a sum of Rs.3000/- per month. However, notwithstanding thesame, the appellant had taken care of her by fulfilling the desire of thedeceased wife to pursue education and she was, in fact, doing her Post- A

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AGraduation at the time of her untimely death. The appellant’s father (wenote that the appellant along with his two brothers and mother weretried by the trial Court and the trial Court convicted the appellant and hismother under Section 304-B but appellant’s mother stood acquitted bythe High Court) had in fact financed the education of the deceasedwife.B

5. Learned counsel for the State pointed out that no reliance is tobe placed on the evidence of the DW6 and DW8. They were neighbours.Their evidence supporting the case of the appellant should be perceivedas born out of their need to maintain cordial relationship with theirneighbours. As to what happened within the four walls of the house, sheCwould question as to how could they depose before the Court. Shesought support from the evidence of PW1 and PW3. The evidence wouldindicate that there is a proximity in a point of time between the acts, ascomplained of, against the appellant and the untimely death of thedeceased.

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6. Before we embark on the examination of the case it becomesnecessary to remind ourselves of the contours of the jurisdiction of thisCourt in an appeal which is maintained after grant of special leave underArticle 136 of the Constitution of India. Does the Court have the dutyas a regular court to consider an appeal or is its jurisdictionEcircumscribed by the consideration that this Court is dealing with theappeal on the basis of grant of special leave.

7. We may profitably advert to the views of the majority expressedin Saravanabhavan and Govindaswamy Vs. State of MadrasAIR1966 SC 1273, which is as under:- F

“7. This is an appeal under Article 136 of the Constitution andwe shall first state what this Court will ordinarily consider in suchan appeal. It is not to be forgotten that this Court’s ordinaryappellate jurisdiction in criminal cases is to the extent laid down inArticle 134 of the Constitution. Some of the appeals in that articleGare available as of right and others lie if a special certificate isgranted by the High Court. This appeal belongs to neither class. Itis not as of right and no special certificate has been granted bythe High Court. There is in our jurisdiction no “sacred right ofappeal” as the French Canadian law assumes(See Mayor etc. ofMontreal v. Brown, (1876) 2 AC 168 (184). Once a decision is H

given by the High Court, that is final unless an appeal is allowedby special leave of this Court. No doubt this Court has grantedspecial leave to the appellants but the question is one of theprinciples which this Court will ordinarily follow in such anappeal. It has been ruled in many cases before that this Court willnot reassess the evidence at large, particularly, when it has beenconcurrently accepted by the High Court and the court or courtsbelow. In other words this Court does not form a fresh opinion asto the innocence or the guilt of the accused. It accepts theappraisal of the evidence in the High Court and the court or courtsbelow. Therefore, before this Court interferes something moremust be shown, such as, that there has been in the trial a violationof the principles of natural justice or a deprivation of the rights ofthe accused or a misreading of vital evidence or an improperreception or rejection of evidence which, if discarded or received,would leave the conviction unsupportable, or that the court orcourts have committed an error of law or of the forms of legalprocess or procedure by which justice itself has failed. We have,in approaching this case, borne these principles in mind. They arethe principles for the exercise of jurisdiction in criminal cases,which this Court brings before itself by a grant of special leave.”

8. In Mst. Dalbir Kaur and Others Vs. State of Punjab1976(4) SCC 158, the Bench of two learned Judges laid down as follows:- “3. As to the principles on which special leave is granted by thisCourt, the same have been clearly and explicitly enunciated in alarge number of decisions of this Court. It has been pointed outthat the Supreme Court is not an ordinary court of criminal appealand does not interfere on pure question of fact. It is only in veryspecial cases where the court is satisfied that the High Court hascommitted an error of law or procedure as a result of which therehas been a serious miscarriage of justice that the court wouldinterfere with the concurrent findings of the High Court and thetrial Court. It has also been pointed out by this Court more thanonce that it is not in the province of this Court to reappraise theevidence and to go into the question of credibility of the witnessesexamined by the parties, particularly when the courts below have AB

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after considering the evidence, given their findings thereon. Inother words, the assessment of the evidence by the High Courtwould be taken by this Court as final, unless it is vitiated by anyerror of law or procedure, by the principles of natural justice, byerrors of record or misreading of evidence, non-consideration ofglaring inconsistencies in the evidence which demolish theprosecution case or where the conclusion of the High Court ismanifestly perverse and unsupportable and the like. As early as1950 this Court in Pritam Singh v. State, 1950 SCR 453: AIR1950 SC 169: 51 Cri LJ 1270, speaking through Fazl Ali, J. (as hethen was) observed as follows:

The obvious reply to all these arguments advanced by the learnedCounsel for the appellant, is that this Court is not an ordinarycourt of criminal appeal and will not, generally speaking, allowfacts to be reopened, especially when two courts agree in theirconclusion in regard to them and when the conclusions of factwhich are challenged are dependent on the credibility of witnesseswho have been believed by the trial Court which had theadvantage of seeing them and hearing their evidence.

In arguing the appeal, Mr. Sethi proceeded on the assumptionthat once an appeal had been admitted by special leave, the entirecase was at large and the appellant was free to contest all thefindings of fact and raise every point which could be raised in theHigh Court or the trial Court. This assumption is, in our opinion,entirely unwarranted.

The rule laid down by the Privy Council is based on soundprinciple, and, in our opinion, only those points can be urged at thefinal hearing of the appeal which are fit to be urged at thepreliminary stage when leave to appeal is asked for, and it wouldbe illogical to adopt different standards at two different stages ofthe same case.

On a careful examination of Article 136 along with thepreceding article, it seems clear that the wide discretionary powerwith which this Court is invested under it is to be exercisedsparingly and in exceptional cases only,....

Generally speaking, this Court will not grant special leave,unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and thatthe case in question presents features of sufficient gravity towarrant a review of the decision appealed against.

Analysing this decision, two principles appear to have been clearlylaid down by this Court:

“(1) that in appeals by special leave against the concurrentfindings of the courts below, this Court would not go into thecredibility of the evidence and would interfere only whenexceptional and special circumstances exist which result insubstantial and grave injustice having been done to the accused;and

(2) that even after special leave has been granted the appellant isnot free to contest all the findings of fact, but his arguments wouldbe limited only to those points, even at the final hearing, whichcould be urged at the stage when the special leave to appeal isasked for.”

8. Thus the principles governing interference by this Court in acriminal appeal by special leave may be summarised as follows:

“(1) that this Court would not interfere with the concurrentfinding of fact based on pure appreciation of evidence even if itwere to take a different view on the evidence;

(2) that the Court will not normally enter into a reappraisement orreview of the evidence, unless the assessment of the High Courtis vitiated by an error of law or procedure or is based on error ofrecord, misreading of evidence or is inconsistent with theevidence, for instance, where the ocular evidence is totallyinconsistent with the medical evidence and so on;

(3) that the Court would not enter into credibility of the evidencewith a view to substitute its own opinion for that of the High Court;

(4) that the Court would interfere where the High Court hasarrived at a finding of fact in disregard of a judicial process,principles of natural justice or a fair hearing or has acted inviolation of a mandatory provision of law or procedure resulting inserious prejudice or injustice to the accused; A

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(5) this Court might also interfere where on the proved facts wronginferences of law have been drawn or where the conclusions ofthe High Court are manifestly perverse and based on no evidence.

It is very difficult to lay down a rule of universal application, butthe principles mentioned above and those adumbrated in theauthorities of this Court cited supra provide sufficient guidelinesfor this Court to decide criminal appeals by special leave.Thus ina criminal appeal by special leave, this Court at the hearingexamines the evidence and the judgment of the High Court withthe limited purpose of determining whether or not the High Courthas followed the principles enunciated above. Where the Courtfinds that the High Court has committed no violation of thevarious principles laid down by this Court and has made a correctapproach and has not ignored or overlooked striking features inthe evidence which demolish the prosecution case, the findings offact arrived at by the High Court on an appreciation of theevidence in the circumstances of the case would not be disturbed.”

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9. We may also notice the judgment rendered by this Court inSushil Ansal v. State Through Central Bureau of Investigation2014(6) SCC 173. Therein, in the judgment rendered by the T.S. Thakur, J.as His Lordship then was, it is inter alia held in para 55 as follows:

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“55. ....Perversity in the findings, illegality or irregularity in thetrial that results in injustice or failure to take into consideration animportant piece of evidence are some of the situations in whichthis Court may reappraise the evidence adduced at the trial butFnot otherwise....”

10. We lastly notice a recent judgment of this Court in the case ofMohd. Ali alias Guddu v. State of Uttar Pradesh2015 (7) SCC 272wherein the Court inter alia held as follows:G

“17. In Ganga Kumar Srivastava v. State of Bihar, (2005) 6SCC 211 : 2005 SCC (Cri) 1424, the Court after referring to aseries of decisions on exercise of the power of this Court underArticle 136 of the Constitution, culled out the following principles:(SCC p. 217, para 10)

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“(i) The powers of this Court under Article 136 of theConstitution are very wide but in criminal appeals this Court doesnot interfere with the concurrent findings of fact save inexceptional circumstances.

(ii) It is open to this Court to interfere with the findings of factgiven by the High Court, if the High Court has acted perverselyor otherwise improperly.

(iii) It is open to this Court to invoke the power under Article 136only in very exceptional circumstances as and when a questionof law of general public importance arises or a decision shocksthe conscience of the Court.

(iv) When the evidence adduced by the prosecution fell short ofthe test of reliability and acceptability and as such it is highlyunsafe to act upon it.

(v) Where the appreciation of evidence and finding is vitiated byany error of law of procedure or found contrary to the principlesof natural justice, errors of record and misreading of the evidence,or where the conclusions of the High Court are manifestlyperverse and unsupportable from the evidence on record.”

11. Learned counsel for the appellant drew our attention to therecent judgment of this Court in the case of Major Singh and Anotherv. State of Punjabreported in 2015 (5) SCC 201. It was a case ofunnatural death. Therein the prosecution witnesses, the complainant-father and brother of the deceased deposed that they saw the accuseddragging the deceased towards the room inside the house and that shewas trembling and on seeing the witnesses, all the four accused ranaway and the deceased breathed her last. The father had spoken aboutthe information he had given to the village panchayat. The Courtproceeded inter alia as follows:

“10. To sustain the conviction under Section 304-B IPC, thefollowing essential ingredients are to be established:

(i) the death of a woman should be caused by burns or bodilyinjury or otherwise than under a ‘normal circumstance’; A

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A(ii) such a death should have occurred within seven years of hermarriage;

(iii) she must have been subjected to cruelty or harassment by herhusband or any relative of her husband;

(iv) such cruelty or harassment should be for or in connectionBwith demand of dowry; and

(v) such cruelty or harassment is shown to have been meted outto the woman soon before her death.”

The Court also proceeded to hold as follows:

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C“14. The prosecution has not examined any independent witnessor the panchayatdars to prove that there was demand of dowryand that the deceased was subjected to ill-treatment. Ordinarily,offences against married woman are being committed within thefour corners of a house and normally direct evidence regardingDcruelty or harassment on the woman by her husband or relativesof the husband is not available. But when PW-3 has specificallystated that the demand of dowry by the accused was informed tothe panchayatdars and that panchayat was taken to VillageBadiala, the alleged ill-treatment or cruelty of Karamjit Kaur byher husband or relatives could have been proved by theEexamination of the panchayatdars. The fact that the deceasedwas subjected to harassment or cruelty in connection withdemand of dowry is not proved by the prosecution. It is alsopertinent to note that both the courts below have acquitted all theaccused for the offence punishable under Section 498-A IPC.”

F12. We noticed that it was a case where the courts had acquittedall the accused for the offence under Section 498-A of the IPC. TheCourt noted that the case of the prosecution is that there is a demand forscooter and proceeded to hold inter alia as follows:

“18. Applying these principles to the instant case, we find thatGthere is no evidence as to the demand of dowry or cruelty andthat deceased Karamjit Kaur was subjected to dowryharassment “soon before her death”. Except the demand ofscooter, there is nothing on record to substantiate the allegation ofdowry demand. Assuming that there was demand of dowry, in H

our view, it can only be attributed to the husband Jagsir Singh whoin all probability could have demanded the same for his use.In theabsence of any evidence that the deceased was treated withcruelty or harassment in connection with the demand of dowry“soon before her death” by the appellants, the conviction of theappellants under Section 304-B IPC cannot be sustained. Thetrial court and the High Court have not analysed the evidence inthe light of the essential ingredients of Section 304-B IPC and theconviction of the appellants under Section 304-B IPC is liable tobe set aside.”

13. In this connection it is to be noticed that the appellants in thesaid case was not the husband, but they were the parents-in-law of thedeceased.

14. We have already noticed that the essential ingredients ofSection 304-B IPC as noticed by this Court in Major Singh & Anothervs. State of Punjab(supra). Parliament has inserted Section 113-B inthe Evidence Act. In order that the presumption therein has to be appliedit must be established that soon before her death, such woman musthave been subjected by such person to cruelty or harassment for, or inconnection with any demand of dowry. Upon this fact being established,undoubtedly, the court is mandated to assume that the person has indeedcaused the dowry death as contemplated in Section 304-B IPC.Therefore, the presumption cannot apply unless it is established thatsoon before her death, a woman has been subjected to cruelty orharassment for or in connection with any demand for dowry. The words“soon before” her death has also been considered in a large number ofcases.

15. We need only to advert to a recent judgment rendered by aBench consisting of three learned Judges in Rajinder Singh v. State ofPunjabreported in 2015(6) SCC 477 only for the purpose ofappreciating the words “soon before” occurring in Section 304-B IPC.This is what the Court has to see “24. We endorse what has been said by these two decisions.Days or months are not what is to be seen. What must be bornein mind is that the word “soon” does not mean “immediate”. A

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Afair and pragmatic construction keeping in mind the great socialevil that has led to the enactment of Section 304-B would make itclear that the expression is a relative expression. Time-lags maydiffer from case to case. All that is necessary is that the demandfor dowry should not be stale but should be the continuing causefor the death of the married woman under Section 304-B.”B16. Having regard to the aforesaid statements of the law, weembark on a consideration of the appeal. The prosecution case asprojected through PW1 complainant – Mohinder Singh, the father of thedeceased is as follows:- the deceased was married on 24[th] January,1998 and he had given dowry beyond his capacity in the marriage. AfterCsome time of the marriage, all the five accused started beating thedeceased. They started taunting her that she had brought meagre dowryand that her parents had not given a Maruti car in the marriage due towhich they had felt belittled in their neighbourhood. The deceasedconveyed this fact to the complainant on telephone. The daughter wasDaged about 1½ years at the time of her death. In December 2000, thedeceased accompanied by her sister went to see her parents at AmaoFarm, PS Khatima. She informed the complainant that she was beingsubjected to harassment by her in-laws. She also told him that theaccused had threatened her that she could return to her matrimonialhome only if she brought a sum of Rs.2 lacs from her parents for theEpurchase of a Maruti car. The complainant then got prepared a fixeddeposit receipt for Rs.30,000/- and handed it over to the deceased. Thecomplainant has also informed at that time to accused Jagjit Singh onphone that he would visit Ludhiana after the sale of the crops and wouldpay the accused the sum of Rs.2 lacs demanded by them. He alsoFrequested him not to harass the deceased. However, even then theaccused gave beatings to the deceased and turned her out of their house.The deceased wife then went to the house of Avtar Singh (nephew ofthe complainant), and he took her to the house of the accused and alsopaid them Rs.2000/- and requested him to treat the deceased nicely. OnFebruary 16, 2001 at about 11:30 a.m. the deceased made a telephoneGcall from the PCO to the complainant that all the five accused weresubjecting her to extensive harassment and that she was feelingdepressed also informed him that on that date also the accused hadgiven her beatings and turned her and her daughter out of thematrimonial home. She also told him that she was making this telephoneH

call from the PCO. The complainant consoled the deceased and told herthat he was coming to Ludhiana and advised her to return to hermatrimonial home. It is also stated that his nephew on being contactedtold them that the accused and his mother approached the house ofAvtar Singh in the evening and enquired about the deceased from himand from his other relations. It is alleged that Avtar Singh told that theyhad not visited him nor he had any information about them. It is the caseof the prosecution that complainant lodged the FIR on 17.02.2001.

17. PW1, father of the deceased inter alia states as follows:

The marriage between the appellant and his daughter (deceased)took place on 24.1.1998. After a good period of marriage all theaccused persons in the home started beating the deceased for notbringing sufficient dowry. He states that they also used to taunt hisdaughter for bringing insufficient dowry. The appellant also demanded aMaruti car. This fact was brought to the notice by his daughter ontelephone. A female child was born. Thereafter, he states that thedeceased went to her house, two months before the untimely death tookplace namely in December 2000. He states that his daughter alongwithPW3(another daughter) came to his farm. He states that his daughtertold him all the accused were harassing and demanding Maruti car orRupees two lacs for purchasing the car. The deceased daughter toldhim that the accused misbehaved with her and she will not go to herin-laws house as they used to beat her and further (it may be noted thatthere is no allegation that the accused appellant used to beat her) hedeposed that she told him that they would kill her. He states that hisbrother Ram Singh and daughter PW3 were present. He further statesthat he send his daughter to her in-laws house after consoling her. Alsoa FDR for Rs.30,000/- (Rupees Thirty Thousand only) was given to her.He phoned up the accused not to maltreat his daughter and he promisedto give Rupees two lacs after selling the crop. He next says that all theaccused re-started giving the beatings and sent away his daughter to thehouse of his nephew Avtar Singh. Avtar Singh, it is alleged brought thisto his notice and gave Rupees two lacs to the accused. PW1 states thatthe maltreatment, however, continued. Thereafter, he relates about oneevent that is on 16.2.2001 the deceased daughter phoned him up from aPCO. She informed that all the accused were maltreating and she wasvery much upset and the accused threw her out from the house and that A

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Athe accused told her that the accused shall not allow her without Maruticar. In cross examination, PW1 stated that the deceased daughter waspreparing for examination B.A. Part-I which she was doing as a privatecandidate and that she did graduation after the marriage by studying inher matrimonial home. He also states that at the time of her death, shewas preparing for the M.A examination. He claims to have madeBpayment of Rs.935/- as the admission fee, which according to theaccused-appellant, was paid by his father but he does admit that bankdraft of Rs.935/- was got prepared by the father of the appellant. Hesays that he does not know whether the appellant was working as turner.He says he might be working but he does not know that he is earningCRs.2000/- or Rs.2500/- per month. He admits the photograph of hisdeceased daughter apparently in connection with the marriage of the‘Devar’ of the daughter of Iqbal Singh (father of the appellant). Headmits that his other daughter (PW3) is married to a person having hisown industry which is being run by his son-in-law, his brother and father.

He admits that neither his brother who is lawyer nor the sister’s sonDwho appears to be a Superintendent in the BPO Office, Ludhiana madeany report to the police station or elsewhere about the harassment. Hefurther states that he did not convene any panchayat in this regard. Hehas denied the suggestion that he used to tell his deceased daughter toseparate from the parents-in-law. He denies the suggestion (apparentlyEthat his daughter took her life) on the basis of the FIR lodged by him.

18. We may also advert to what PW3 has actually said.Sometime after the marriage, the accused started taunting her deceasedsister by saying that she brought insufficient dowry and that there is ademand for dowry. She says that this is disclosed about 5 or 6 monthsFafter the marriage. Thereafter, she repeatedly told her about theharassment at the hands of the accused on account of dowry. Thereaf-ter, she refers to meeting her parents in December 2000 along with thedeceased. She speaks along the same lines as her father. On 16.2.2001,it is alleged that the deceased came to her house and wept bitterly. Shetold her that in the preceding day, her husband (appellant) has hurledGabuses at her father on phone and at that time she was accompanied byher daughter. That all the five (5) accused used to beat her and she toldher that when she prevented her husband from abusing her father, theappellant gave her more beating. She specifically says that when theappellant went to take meal, her daughter also started sharing meal with H

her and then the appellant slapped her. The deceased also told her thatwhen she protested, Balwant Singh (brother of the appellant) also beather and abused her. It is thereafter she goes to a PCO and makes thecall which PW1 has spoken about. She does say that the appellant’smother came to her house to make enquiry about the deceased and shetold her that the deceased was under depression and has gone to makea call at the PCO and she should take her home. The appellant’s mothertold her that she would herself return home.

19. In her cross examination she does state as follows:

Her husband and father-in-law are running their own industry.More importantly, she says it is correct that the status of the accusedwas lower than that of her in-laws. They had represented that they hadapplied for industrial connection and would start their own industry. Sheadmits that the deceased continued with her studies and was preparingfor M.A. Examination at the time of her death so as to becomeself-reliant. She denies the suggestion made to the effect that it is onaccount of his financial status that the appellant used to shun thecompany of her husband. She also states that her uncle, an Advocatewas informed about the harassment but he never lodged any complaintor FIR with a view to ensure settlement of the deceased in hermatrimonial home. She states that on 16.2.2001, the deceased spentabout 5 – 7 minutes with her. She denies the allegation that she alsotaunted the deceased that the birth of her daughter has further increasedthe liability and therefore, the deceased committed suicide.

20. No doubt we notice that PW5 is examined to show that hewas at the PCO from where the deceased made a call on 16.2.2001 thathe just saw but did not hear her talk. She was weeping, the witnessdeposed. Though there is a definite role for the nephew namely, Av tarSingh, which is referred to in the deposition of both PW1 and PW3, theprosecution has given up the said witness as being won over by theaccused.

21. Having adverted to the evidence which is the basis forimputing the charge against the appellant, we may now examine what isthe defence evidence. DW5 is the father-in-law of the appellant’s brother(Sarabjit Singh). Be it noted that Sarabjit Singh was also an accused inthe trial. He says that after 6 years of marriage, his daughter andson-in-law separated from the parents. He states that his daughter AB

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Aalways remained happy in the house of her husband. He states thatPW3 is married into an affluent family. PW3 used to tell that she hasbeen married in a poor family. The deceased had told her that shewould get higher education and bring herself to the level of PW3. Upona daughter being born, again PW3 reminded her of the fact that she ismarried in a poor family and asked her to get rid of the appellant. ThisBis how the deceased started remaining under depression. He says thatthe accused never demanded dowry from the deceased-wife of theappellant. In cross examination he would say that he used to visit thehouse of the appellant after about a fortnight.

22. DW6 is a neighbour. His house is just opposite the house ofCthe Iqbal-appellant’s father. He has stated that family of the accused isa nice family. He never heard or saw the accused harassing thedeceased with the demand of dowry. He denies the allegation thatbeing neighbour he tried to depose in favour of the accused. He saysSarabjit Singh is also a joint resident with the present accused.D23. Finally, DW8 is examined. He says that he knows the familyof the accused Iqbal (appellant’s father) very well. He states that thedeceased-wife of the appellant used to visit his house and used toaddress as Mausaji. His house is opposite to the house of the accused.He says that the deceased never complained to him against theEaccused. He says that PW1 used to visit his house sometimes and thatPW3 is married at a distance of 4[th] streets from his house. The familyof PW3 is well off whereas the family of the accused is an averagefamily. The deceased intended to open a private school in the houseafter completing her study. He deposed that once in his presence PW3told the deceased that while she was married in an affluent family, theFdeceased was married in a poor family. He states that PW1 visited thematrimonial home of the deceased once or twice after the marriage butthereafter he never visited their house. PW3 is alleged to have takenthe deceased away from the matrimonial home on the morning of theday by telling her that father had come to visit his sister in village Rampur.GHe states that the deceased absolutely had no problem while stayingwith the accused. In cross examination he would depose that thedeceased used to meet him sometime. He is not able to remember thedate of marriage of the deceased. He did not attend the marriage eitherfrom this side of the deceased or from the side of the complainant. He H

also did not attend the marriage of PW3 from either side(In this regardPW3 is the elder sister of the deceased). He deposed that PW1 did notvisit the house of the appellant as they were poor.

24. A reading of Section 304-B of the IPC along with Section113-B of the Evidence Act would establish that once the prosecutionshows that soon before the death of the wife, she has been subjected tocruelty or harassment for or in connection with any demand for dowry,the court shall presume that such person caused the dowry death withinthe meaning of Section 304-B IPC. The words ‘shall presume’ inSection 113-B of the Evidence Act, while it mandates that the Court isduty bound to proceed on the basis that the person has caused the dowrydeath, the presumption is rebuttable and it is open to the relative to provethat the ingredients of Section 304-B IPC are not satisfied. See in thisregard, the following statement of law contained in the case ofG.V. Siddaramesh v. State of Karnataka2010 (3) SCC 152:

“26. Section 113-B of the Evidence Act raises a presumptionagainst the accused and reads:

“113-B. Presumption as to dowry death - When the questionis whether a person has committed the dowry death of a womanand it is shown that soon before her death such woman hadbeen subjected by such person to cruelty or harassment for, orin connection with, any demand for dowry, the court shallpresume that such person had caused the dowry death.

Explanation. - For the purposes of this section, ‘dowry death’shall have the same meaning as in Section 304-B of the IndianPenal Code (45 of 1860).”

A reading of Section 113-B of the Evidence Act shows that theremust be material to show that soon before the death of woman,such woman was subjected to cruelty or harassment for or inconnection with demand of dowry, then only a presumption canbe drawn that a person has committed the dowry death of awoman. It is then up to the appellant to discharge thispresumption.”

25. We may also notice the statement of law contained in thedecision of this Court in the case of Ashok Kumar v. State of Haryanareported in 2010 (12)SCC 350 which reads as under:

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“24. Of course, deemed fiction would introduce a rebuttablepresumption and the husband and his relatives may, by leadingtheir defence and proving that the ingredients of Section 304-Bwere not satisfied, rebut the same. While referring to raising ofpresumption under Section 304-B of the Code, this Court, inKaliyaperumal v. State of T.N.;(2004) 9 SCC 157: 2004 SCC(Cri) 1417, stated the following ingredients which should besatisfied: (SCC p. 162, para 4)

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“(1) The question before the court must be whether theaccused has committed the dowry death of a woman. (Thismeans that the presumption can be raised only if the accusedis being tried for the offence under Section 304-B IPC).

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(2) The woman was subjected to cruelty or harassment by herhusband or his relatives.

(3) Such cruelty or harassment was for, or in connection withany demand for dowry.

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(4) Such cruelty or harassment was soon before her death.”

26. In the perspective of aforesaid state of the law, two issueswould arise. Whether there is material within the meaning of Section113-B of the Evidence Act for the Court to have come to the conclusionEthat soon before the death, the deceased was treated with cruelty orharassed for or in connection with demand for dowry. In this regard wehave noticed that there is a material in the form of testimony of PW1and PW3. The marriage between the accused-appellant and thedeceased took place on 24.1.1998 and it survived only for a little overthree (3) years. It is on 16.2.2001 that the deceased goes to the houseFof PW3, her elder sister, spent 5 to 7 minutes, according to the saidwitness, complained of cruelty or harassment by the accused and herown daughter was with her. On the same day, she goes to the PCO,phones her father PW1 and tells him about the harassment. PW4 theperson working at the PCO has also stated that she was weeping andGthe she made a call. PW1 has spoken about the contents of thetelephonic conversation namely, all the accused were maltreating andtaunting her and that she was very much upset and the accused hadthrown her out from their house with the daughter and that she will notbe allowed to come back without a Maruti car or Rupees two lakhs. If H

he is to be believed (In fact, two courts have), this would amount tocruelty/harassment in connection with demand for dowry. Therefore,the law enjoins under Section 113-B of the Evidence Act drawing of thepresumption that the accused has committed the dowry death.

27. Undoubtedly, the presumption is rebuttable at the hands of theaccused by adducing evidence and discharging the reverse burden.Whether any such evidence in discharge with reverse burden has beensuccessfully adduced and whether it has been considered, is the nextquestion. The judgment of the trial Court would show that there isindeed a reference to the contents of the deposition of PW5, PW6 andPW8.

28. Power under Article 136 seemingly, transcends all limitationsin regard to matters save where it is expressly excluded. However, byway of self imposed intrusions into such power, as also by way ofdeference to the scheme of the Constitution, the principles we havealluded to stand culled out. Apposite to the facts of this appeal, thefollowing principles must inform us:

1. Credibility of witnesses as commended to Courts below is notordinarily reappraised.

2. Is there misreading of evidence?

3. Is there any non-consideration of glaring inconsistency in theevidence which demolishes the prosecution’s case?

4. Are the findings inconsistent with the evidence?

5. Have the courts overlooked striking features in the evidence oris their failure to consider important piece of evidence?

6. Whether the evidence adduced by the prosecution fall short ofthe test of reliability and acceptability and it is therefore unsafe to actupon it?

29. The marriage took place on 24.1.1998. According to PW3about 6 months after the marriage, demands were raised for dowry.Either a Maruti car or Rs.2 lakhs was the demand. There was physicalcruelty according to PW1 father, and PW3 sister. In December, 2000the deceased, meet both PW1 along with PW3 and complained aboutthreats and beatings. The death took place in February, 2001.

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A30. The Troubling features- There is evidence, whichestablishes that the father of the appellant contributed to the continuedhigher education of the deceased. Is that compatible with treating hisdaughter-in-law with cruelty. The father-in-law stands acquitted by thetrial Court. The mother-in-law even according to PW3 met her on16.2.2001 and enquired about her daughter-in-law. PW3 told her thatBher sister was depressed and asked her to take her home. PW3 statesthat the deceased told her that on the night previous to 16.2.2001, theappellant had hurled abuse on her father and when she prevented theappellant from abusing her father, she was beaten even more. If this betrue, indeed, it is cruelty near, in point of time and bearing a linkCproximate to the time of her death immediately thereafter. (The doctorhas conducted post mortem on 28.2.2001. He has opined that theprobable time which elapsed between death and post-mortem was about12 days). This mean that the tragic death took place on the 16[th] or17[th] of February, 2001. But PW1 does not depose a word about thetelephone call made on the eve of 16.2.2001. There is evidence of PW3Dthat in their estimation the status of the appellant was lower and thatthey had represented that they had applied for an industrial connectionand would start their own industry. That apart, Avtar Singh, the nephewof PW1, who is referred to by PW1, as having direct knowledge ofcertain aspects is not examined.E

31. The trial Court has carefully discussed the two versionscanvassed. The questions which we posed as troubling, most of them,was present in its mind. The High Court has also referred to the defenceevidence including DW6 and DW8.

F32. The trial Court, however, finds solace in rejecting the defenceversion on the score that it cannot be squared with the deceased visitingthe home of PW3 on 16-02-2001, and it takes the view that she wouldhave been the last person for her to visit. It is also found that the deceaseddid not go on being called by PW3. The trial Court had the advantage ofwatching the demeanor of the witnesses. We cannot hold that the viewGtaken by the trial Court as affirmed by the High Court is not warrantedas such by the materials on record. We cannot possibly hold that theview taken by the courts is manifestly perverse or that it is based on noevidence. Even if we are persuaded to take a different view as canvassed JAGJIT SINGH v. STATE OF PUNJAB[K. M. JOSEPH, J.]

by the appellant we would not be justified in interfering. See theobservations in Mst. Dalbir Kaur’s case (supra).

33. The upshot of the above discussion is that we are notpersuaded to interfere. The appeal shall stand dismissed.

Ankit Gyan

Appeal dismissed.

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