The accused have taken the defense that the PWs. have also
stated in their statements that no demand for dowry was
made before marriage and that the marriage was concluded
by the consent of the two parties.
They also took the
defense that no prior police complaint of dowry demand was
made by the family of the deceased. However, in light of the
decision of this Court in State of Himachal Pradesh v. Nikku
Ram & Ors. (supra) and the social evil of dowry that is
prevalent in the Indian society, this defense does not hold
water. The demand for dowry can be made at any time and
not necessarily before marriage.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2146 OF 2009
BHIM SINGH & ANR.
V
STATE OF UTTARAKHAND
Dated;February 11, 2015
Read original judgment here; click here
Pinaki Chandra Ghose, J.:
1.
This appeal, by special leave, has been filed against the
judgment and order dated 23.03.2009 passed by the High
Court of Uttarakhand at Nainital in Criminal Appeal No.1706
of 2001 whereby the High Court while acquitting the two co-
accused (appellant Nos.2 & 3 herein), upheld the conviction
and sentence of appellant Nos.1 & 2 herein, as awarded by
learned
Special
Judge
(CBI)/Additional
Sessions
Judge,
Nainital, and dismissed their appeal. The learned Special
Judge
(CBI)/Additional
Sessions
Judge,
Nainital,
by
its
Page 1
2
judgment and order dated 25.04.2000 passed in Sessions
Trial No.36 of 1998 convicted appellant Nos.1 & 2 herein
under
Section
imprisonment
304-B of IPC and sentenced them to
for
life,
and
further
convicted
all
the
appellants under Section 498-A IPC and sentenced them to
rigorous imprisonment for one year and a fine of Rs.500/- to
each of them. All the appellants were also convicted under
Sections 3 & 4 of the Dowry Prohibition Act, 1961 and
sentenced
each
of
them
to
three
months’
simple
imprisonment and fine.
2.
The facts leading to this appeal are that one Bhim Singh S/o
of Govind Singh, resident of Village Naliana in District
Nainital got married to Prema Devi (deceased) on 4.5.1997.
Appellants Nos.2 & 3, namely Aan Singh and Nain Singh are
brothers of
Bhim Singh and Appellant No.4, namely Janki
Devi is the wife of Aan Singh (appellant No.2 herein). Prema
Devi
died
unnatural death
in
her
in-laws’
house
on
26.9.1997. Soon after the death of Prema Devi, Pushpa Joshi,
Village Pradhan of Jeolikot made a complaint telephonically
Page 2
3
to Sub-Divisional Magistrate about the unnatural death of
Prema Devi. Upon receiving this information, the Magistrate
along with Sub-Inspector Shiv Singh Gusain (PW-7) reached
the village and took the dead body in their possession and
an inquest report was prepared on the same day.
Post-
mortem examination of the deceased was conducted on the
same day at about 4.55 p.m. by Dr. D.K. Joshi (PW-5) and
one Dr. H.C. Bhatt who prepared the Autopsy Report. Post-
mortem report reveals that there were 90% burn injuries on
the body of the deceased. Since the cause of death was not
ascertained by the medical officers, therefore, vicera was
preserved for chemical examination.
3.
First Information Report was lodged on 27.9.1997 at around
1830 Hrs., at Police Station Jyolikot, Police Station Tallital,
District Nainital by one Sri. Birbal Singh Sambhal, inter alia,
stating that the marriage of his sister Smt. Prema Devi was
solemnized with Bhim Singh son of Govind Singh, in the
month of May, 1997 in Village Jyolikot, Nainital. The elder
brother of Bhim Singh, namely Aan Singh played the role of
Page 3
4
mediator in finalizing the marriage.
Several items were
given in the aforesaid marriage. FIR states that Prema Devi,
complainant’s sister, told him that when she went to the
house of her in-laws after marriage, her husband Bhim
Singh, Aan Singh, Nain Singh, all sons of Govind Singh and
Smt. Janki Devi wife of Aan Singh, used to taunt and torture
her by saying that she had brought nothing in dowry. When
she narrated these events to her parents they persuaded
Prema and told her to adjust with her family and live with
them
cordially.
Father
of
the
complainant
however
convinced Prema that he would himself talk to her in-laws
and settle things. They went to the house of the in-laws of
Prema and tried their best to persuade them, but instead of
settling matters, they exhorted to taunting. Consequently,
Prema was advised to adjust herself to the situation.
Thereafter when she came to her parents’ house on the
occasion of Rakhi, she told them
that Bhim Singh, Aan
Singh, Nain Singh and Janki Devi are repeatedly taunting and
torturing her. She further told that the elder brother, Aan
Singh threatened to insult her before the entire village and
Page 4
5
pressurised her for getting clothes and other items from her
parents’ house. On 27.9.1997 the complainant received
information that his sister had died due to burning. Upon
receiving this information, they immediately went to the
house of Prema’s in-laws and they found her dead. She was
completely burnt. They were told that she had set herself on
fire.
4.
Investigation
was
done
by
Bimla
Gunjyal,
Deputy
Superintendent of Police (PW-6) and after the investigation
was complete, charge-sheet against all the four accused
persons was filed before the Chief Judicial Magistrate
and
the case was committed to the Sessions Court for trial.
5.
The Trial Court
on
finding that the
prosecution
has
succeeded in proving the guilt of the appellants, convicted
them for offences under Section 498-A of IPC and sentenced
them to undergo rigorous imprisonment for three years each
with a fine of Rs.500/-, and in the event of default in
payment of fine, further simple imprisonment for fifteen days
each. Accused Bhim Singh and Aan Singh (appellants Nos.1
Page 5
6
& 2 herein) were also held guilty of offence 304-B of IPC and
both
of
them
were
sentenced
to
undergo
rigorous
imprisonment for life. Appellants were also convicted for the
offences under Sections 3 & 4 of the Dowry Prohibition Act,
1961 and sentenced to undergo three months’
imprisonment along with fine of Rs.500/-.
rigorous
In the event of
default in payment of fine, they were to undergo further
simple imprisonment for fifteen days. However, all these
sentences were directed to run concurrently.
6.
An appeal was preferred by the appellants under Section 374
of Code of Criminal Procedure, 1973 (“Cr.P.C.” for short)
against the judgment and order dated 25.04.2000 passed by
the Special Judge (C.B.I)/ Additional Sessions Judge, Nainital
in Sessions Trial No.36 of 1998. After hearing the counsel for
the parties and perusing the Trial Court’s record, the High
Court relied, firstly on the finding by the team of two
doctors who after post-mortem examination prepared the
autopsy report. The said report disclosed that there were
90% burns and all these burns were skin deep. As to the
Page 6
7
cause of death, the two officers Dr. D.K. Joshi and Dr. H.C.
Bhatt opined that the cause of death could not be
ascertained, hence the viscera was preserved. The viscera
report on the Trial Court record disclosed that pieces of
stomach, intestine, liver, kidney and spleen contained
Organo Chloro Insecticide and Ethile Alcohol poisons. The
Autopsy
report
and
chemical
examiner’s
report
with
statement of Dr. D.K. Joshi clearly established the fact that
the deceased died an unnatural death. Secondly the High
Court also relied on the statements of Virbal Singh, brother
of the deceased (PW- 1),
Maan Singh, father of the
deceased (PW-2) and Trilok Singh, uncle of the deceased
(PW-3) that the deceased got married to Bhim Singh on
07.05.1997 and died an unnatural death on 26.9.1997,
within 5 months of marriage. It also noted that the accused
had themselves admitted in their replies recorded under
Section 313 of Cr.P.C. that the marriage took place on the
said date and Prema Devi died an unnatural death. The only
question in dispute as framed by the High Court was whether
the deceased was subjected to cruelty by the accused
Page 7
8
appellants before her death or not. The High Court found
that firstly the prosecution had sufficiently shown as
required under Section 304-B IPC that the deceased was
subject to cruelty and harassment by Bhim Singh and Aan
Singh by relying on the statements made on oath by PW-1
Virbal Singh, PW-2 Maan Singh and PW-3 Trilok Singh where
they specifically stated that in the ceremony of Durgun, Aan
Singh complained that expenditure incurred by him in the
marriage had not been recovered. Their statements were
corroborated by statement of Trilok Singh.
Relying on
Section 113-B of the Indian Evidence Act 1872 read with
prosecution evidence, the High Court opined that the
prosecution had successfully proved charge of offence
punishable under Section 498-A and 304-B of I.P.C. and one
punishable under Sections 3 and 4 of Dowry Prohibition Act,
1961 against Bhim Singh and Aan Singh. Secondly on the
point of proving proximity between the taunts and death of
the deceased, the High Court decided that five months was
proximate enough and that presumption under Section 113B
was proved beyond doubt to prove charge. Thirdly, the fact
of living separately by showing ration cards was immaterial.
On being urged by the accused that the charge framed by
Trial Court is defective and alternative charge could not have
been framed in the manner it is done by Trial Court, the
Court found that there was no error in stating the offence
nor in particulars stated in the charge, nor any failure of
justice as is shown by the appellants. Relying on Sections
221 and Section 464 of Cr.P.C. the High Court opined that
there was no error in the charge nor there was any failure of
justice. On going through the entire evidence on record the
High Court found that though the names of Nain Singh and
Janki Devi are mentioned with Bhim Singh and Aan Singh, no
specific role in harassing the deceased is stated against
them and as such the possibility of implication of their
names, on suspicion, cannot be ruled out. Even in respect of
charge of offence punishable under Section 498-A and
Sections 3 and 4 of Dowry Prohibition Act, 1961,
charge
against Nain Singh and Janki Devi had not been proved
beyond reasonable doubt. But as far as conviction recorded
by the Trial Court in respect of Bhim Singh and Aan Singh is
concerned, the Trial Court had committed no error in law in
convicting and sentencing them under Section 498-A I.P.C.,
304-B I.P.C., and one under Sections 3 and 4 of Dowry
prohibition Act, 1961 as the charge against them was proved
on the record beyond all reasonable doubt.
7.
The High Court in the present matter convicted appellant
Nos.1 & 2, on the basis of circumstantial evidence in the
impugned judgment. It has been established in leading
judicial precedents that where the prosecution case is based
on circumstantial evidence, only the circumstantial evidence
of the highest order can satisfy the test of proof
in a
criminal prosecution. To base a conviction on circumstantial
evidence
put forth by the prosecution should establish a
complete and unbroken chain of events so that only one
inference could be drawn out from the same and if more
than one inference could be drawn, then the accused should
be entitled to the benefit of doubt.
8.
The learned counsel appearing for the State of Uttarakhand
contended that PW-1 Birbal Singh had categorically stated
on oath that marriage of his sister Smt. Prema Devi was
solemnized on 7.5.1997 with Bhim Singh. Elder brother of
Bhim Singh, Aan Singh, played role of mediator in finalizing
the marriage. Loan was taken for marriage. However no
demand for dowry was made. But his sister had complained
twice that his family was taunting her and demanding dowry.
This statement given by PW-1 is fully corroborated by the
father of the deceased also. Prosecution counsel also
examined PW-3 Trilok Singh the uncle, who said that Bhim
Singh and Aan Singh talked about dowry before him and
thereupon he expressed his displeasure. The learned counsel
also argued that she died after 4 months and some days of
her marriage in an unnatural way. Further, it is argued that
since there was no mode of transport in the village at night,
they could not go to the house of Prema Devi’s in-laws on
26.9.1997 and next day when they reached by walking on
foot for about 15 km, they came to know that the dead body
had been sent to Nainital for post-mortem. Apart from the
above witnesses, Smt. Pushpa Joshi, the Gram Pradhan of
the Village was produced as PW-4. She stated that the elder-
brother Aan Singh came to her and told her that Prema Devi
had set herself on fire and thereafter she along with her
neighbor, went to their house and saw Prema Devi lying
there badly burnt.
PW-4 informed Darogaji Gusai Singh
about the incident. The learned counsel further stated that
PW-5 Dr. D.K. Joshi examined the dead body on 26.9.1997
and in external examination found 90% burn injuries on the
body. The deceased had died 6-8 hours prior to examination.
Since
no
cause
examination,
of
death
therefore,
was
viscera
visible
of
the
from
external
deceased
was
preserved for internal examination. Post-mortem report was
prepared by Dr. H.C. Bhatt in which it was stated that he
was of the opinion that the deceased was given some toxic
substance before her death due to which she died and later
on she was burnt. Because no external reason of death was
found, the viscera was sent to the State Laboratory for
chemical examination and it was found that toxic material
was present in the viscera. The counsel for the State, thus,
submitted that the accused tried to kill Smt. Prema Devi by
giving poisonous substance after torturing her for dowry and
when they became apprehensive whether she had died or
not, they set her on fire to confirm her death. Thereafter,
they informed the Gram Pradhan of the Village that Prema
Devi had died due to burning so that the deceased is not
able to give her dying declaration.
9.
On the other hand, the learned counsel for the appellants
submitted that PW-1 Birbal has admitted in his statement
that no demand for dowry was made by accused before the
marriage and if at all they wanted dowry, they would
demand it before marriage itself. None of them were in a
position to demand and give dowry. Birbal admitted in his
statement that the marriage was settled voluntarily by Birbal
and his father on their own accord. He stated that “marriage
of his sister was settled by his father and his marriage was
solemnized with the consent of both me and my father. My
sister came back to our house after some days of marriage.
But I cannot tell after how many days she came back.
Because I was in Haldwani that time.” Further, it was urged
that PW-1 and PW-2 have admitted that no reports were
lodged by them prior to death of Prema, with respect to
torture on demand of dowry. The Counsel further said that,
the conduct of the accused was of great importance, as the
information of the death was given by Aan Singh himself to
the Gram Pradhan of the Village. If they had killed her, they
would not have informed her family members and instead
would have cremated her immediately after her death.
Counsel urged that, it appears that the deceased herself
committed suicide, by first consuming poisonous substance
and thereafter she thought she might not die due to its
consumption, therefore she burnt herself. Learned Counsel
further argued that Bhim Singh, husband of the deceased
has two brothers. Aan Singh, elder brother of Bhim Singh is a
Chowkidar in P.W.D. and living separately with his wife. Bhim
Singh was a vehicle driver and his younger brother Nain
Singh was running a shop. Thus, there was no correlation of
Aan Singh, Nain Singh and Janki Devi with Bhim Singh. All
three were doing their separate avocations. The voter lists
and ration cards of all the three brothers, which are on
record, are separate. Thus, it is not proved that all three
brothers were involved in the offence. On the other hand,
they have helped the police in this case by informing them.
10. Thus, the present appeal requires an evaluation and analysis
of the circumstantial evidence on record and the statements
made in the course of investigation and produced against
the accused appellants.
11. The first ground of defense taken by the appellants in this
appeal is that there is no specific incident of abuse or torture
for dowry and no prior report of dowry demand was filed by
the family of the deceased. It is also stated that there was
no demand of dowry made by them before marriage as is
evident from the statements of PW-1 Birbal Singh and PW-2
Man Singh. However, as held by this Court in the State of
Himachal Pradesh v. Nikku Ram & Ors., (1995) 6 SCC 219,
the demand for dowry can be made at any time, and not
necessarily before marriage. The demand can be made on
three occasions; before marriage, at the time of marriage
and after marriage. The relevant extract of the said
judgment is reproduced hereunder:
“Dowry, dowry and dowry. This is the painful
repetition which confronts, and at times haunts,
many parents of a girl child in this holy land of
ours where, in good old days the belief was: “Yatra
Naryastu Pujyante ramente tetra dewatah” (where
woman is worshipped, there is abode of God). We
have mentioned about dowry thrice, because this
demand is made on three occasions: (i) before
marriage; (ii) at the time of marriage; and (iii)
after the marriage. Greed being limitless, the
demands become insatiable in many cases,
followed by torture on the girl, leading to either
suicide in some cases or murder in some.”
12. The accused have taken the defense that the PWs. have also
stated in their statements that no demand for dowry was
made before marriage and that the marriage was concluded
by the consent of the two parties.
They also took the
defense that no prior police complaint of dowry demand was
made by the family of the deceased. However, in light of the
decision of this Court in State of Himachal Pradesh v. Nikku
Ram & Ors. (supra) and the social evil of dowry that is
prevalent in the Indian society, this defense does not hold
water. The demand for dowry can be made at any time and
not necessarily before marriage. The appellants have also
taken the plea that no specific incidents of abuse or torture
were there. But in the present case, PW-3 Trilok Singh has
categorically stated in his statement that the accused Aan
Singh had come in the ceremony of durgud, which is
celebrated after marriage in which he had stated in the
presence of all the persons that he had not recovered the
money he had spent in the marriage and became angry. The
PWs. have also stated that, the deceased, Smt. Prema Devi
had also complained to her family members twice, regarding
taunts and demand for dowry by the four accused persons.
These incidents occurred “soon before her death” as she
died within 5 months of her marriage. This raises a
presumption, under Section 113-B of the Evidence Act, as to
dowry death punishable under Section 304-B of I.P.C. A
conjoint reading of Section 113B of the Evidence Act and
Section 304-B of I.P.C. shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
within the purview of “death occurring otherwise than in
normal circumstances”. The prosecution is obliged to show
that soon before the occurrence there was cruelty or
harassment for or in connection with the demand for dowry.
In other words, only when the prosecution proves that soon
before her death, the lady was subjected to cruelty or
harassment for or in connection with any demand for dowry
as laid down by this Court in Kaliyaperumal and Anr. Vs.
State of Tamil Nadu (2004) 9 SCC 157. The prosecution has
proved by producing cogent evidence that soon before her
death the lady was subjected to cruelty or harassment in
connection with the demand for dowry.
Thus, it becomes
obligatory for the Court to raise a presumption that the
death is a dowry death.
13. It is the case of the defense that the deceased would have
tried to commit suicide by consuming poison and when she
was apprehensive whether she would die or not, she set fire
to herself. Assuming, without conceding, that Smt. Prema
had committed suicide, then under Section 113A of the
Indian evidence Act, onus is shifted on the accused to
dislodge the presumption of having committed abetment of
suicide by a married woman. Unlike as in Section 304-B
where the court “shall presume” dowry death, when the
prosecution has established the ingredients, under Section
113A of the Evidence Act, discretion has been conferred
upon the Court wherein it has been provided that the Court
may presume abetment of suicide. Therefore the onus lies
on the accused to rebut the presumption, and in case of
Section 113-B of the Evidence Act relatable to Section 304B
of IPC, the onus to prove shifts exclusively and heavily on
the accused as held in Bansilal v. State of Haryana (2011) 11
SCC 359.
Thus, where the death of the wife was
concurrently found to be unnatural, viz., by strangulation,
and there was demand for dowry and also cruelty on the
part of the husband the presumption under Section 113B has
been rightly drawn, as held in Hemchand v. State of Haryana
AIR 1995 SC 120, 121.
Even then the presumption against
the accused persons as in Section 113A of the Evidence Act
is rightly presumed as if we assume that she committed
suicide, as the circumstantial evidence shows that she might
be compelled to take the extreme steps as the alleged
suicide was committed within 7 years of marriage, as held in
Gurbachan Singh v. Satpal Singh 1990 Cri. LJ 562,571 (SC).
The circumstantial evidence leads to the guilt of the accused
persons, as the prosecution has proved that the accused had
the opportunity to administer the poison and the doctors in
the medical examination have also reported that the
deceased was a healthy woman who, along with her family,
was trying to reconcile matters with the accused persons.
The fact that the death occurred in the house of the accused
persons, leads to their guilt. They have not discharged the
onus of disproving the presumptions under Sections 113A
and 113B. Thus, the question of suicide is ruled out. The
Court in this case is obliged to take the presumption raised
under Section 113B of the Evidence Act.
14. The accused persons have taken the defense that they
themselves had informed the Gram Panchayat after she had
died upon which the Gram Pradhan along with other persons
went to the accused persons house, where they found the
dead body of Smt. Prema. A prudent man, trying to save a
person from dying would have taken the deceased person to
the nearest hospital, and would not have waited for her to
die. The argument put forward by the learned counsel for the
accused that the deceased first consumed poison and then
on being apprehensive of her death, she set herself on fire,
is further proved wrong, as any reasonable man would try to
save his wife if such a situation arise. When facts are clear, it
is immaterial whether motive was proved. Absence of motive
does not break the link in the chain of circumstances
connecting the accused with the crime as held by this Court
in Mulakh Raj v. Staish Kumar, (1992) 3 SCC 43 = AIR 1992
SC 1175. Further, proof of motive or ill-will is unnecessary to
sustain conviction where there is clear evidence.
15. In the present case, the guilt or innocence of the accused
has to be adduced from the circumstantial evidence. The law
regarding circumstantial evidence is more or less well
settled. This Court in a plethora of judgments has held that
when the conviction is based on circumstantial evidence
solely, then there should not be any snap in the chain of
circumstances. If there is a snap in the chain, the accused is
entitled to benefit of doubt. Gurpreet Singh v. State of
Haryana (2002) 8 SCC 18 is one of such cases. On the
question of any reasonable hypothesis, this Court has held
that if some of the circumstances in the chain can be
explained by any other reasonable hypothesis, then the
accused is entitled to benefit of doubt. But in assessing the
evidence, imaginary possibilities have no place. The Court
considers ordinary human probabilities.
16. On circumstantial evidence, this Court has laid down the
following principles in Sharad Birdhichand Sardar v. State of
Maharashtra, (1984) 4 SCC 116:
(1)
The circumstances from which the conclusion of guilt is
to be drawn must or should be and not merely “may be”
fully established.
(2)
The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say they
should not be explainable on any other hypothesis except
that the accused is guilty.
(3)
The circumstances should be of conclusive nature and
tendency.
(4)
They should exclude every possible hypothesis except
the one to be proved and,
(5)
There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.
Whenever there is a break in the chain of circumstances, the
accused is entitled to the benefit of doubt; State of
Maharashtra v. Annappa Bandu Kavatage (1979) 4 SCC 715.
17. Following the decision in Sharad Birdhichand (supra), this
Court in the case of Liyakat v. State of Uttaranchal, (2008)
16 SCC 148, and in the case of Kusuma Ankama Rao v. State
of Andhra Pradesh, (2008) 13 SCC 256, upheld the conviction
as awarded by the Trial Court and affirmed by the High
Court.
18. Thus, in light of the above, there is no missing link in the
circumstantial evidence put forth by the prosecution, and
hence the accused are not entitled to benefit of doubt. The
guilt of the accused persons i.e. the appellant Nos.1 & 2
herein, under Section 304-B IPC has been successfully
established. We, therefore, find no infirmity in the impugned
judgment
passed
by
the
High
Court.
This
appeal
is
accordingly dismissed. There shall be no order as to costs.
............................................J
(M.Y. Eqbal)
............................................J
(Pinaki Chandra Ghose)
New Delhi;
February 11, 2015.
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