Rajasthan High Court - Jaipur
Gurditta Singh vs The State Of Rajasthan on 14 March, 1991
Equivalent citations: 1992CRILJ309, 1991(1)WLN44, 1991(2)WLN242
JUDGMENT Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated Sept. 15, 1989 passed by the Additional Sessions Judge, Sri Ganganagar by which appellant Gurdutta Singh was convicted Under Section 304B, I.P.C. and sentenced to imprisonment for life.
2. Succinctly narrated the prosecution case is that Veerpal Kaur, daughter of Balwant Singh resident of Village Sunderpura, was married to appellant Gurditta Singh of Village Radewala six years prior to the date of the occurrence i.e. death of Veerpal Kaur on June 16, 1987. At the time of marriage cash, ornaments and other articles were given by Veerpal Kaur's grand mother Nihal Kaur. After one year of the marriage, the appellant and his mother Chand Kaur (Co-accused who had died during the pendency of the trial) told Veerpal Kaur's parents and brother that the gold given at the time of marriage was not sufficient. At this, ten tolas of gold was given. When the first son was born to Veerpal Kaur, there was a demand of fifteen thousand rupees but at the intervention of the Panchas, amount of rupees twelve thousand was settled and given. That son died. Whereafter two more sons were born to Veerpal Kaur but despite demand, nothing was given from her father's side. Chand Kaur and Gurditta Singh are said to have illtreated Veerpal Kaur because of the dowry not being adequate. On June 16, 1987 Gurditta Singh had gone to the field and Chand Kaur and Veerpal Kaur were at the house. Veerpal Kaur consumed insecticide spray lying in the house. At about 10.30 a.m. Gurditta Singh being informed, came to the house and took Veerpal Kaur to Devta Nursing Home of Dr. Ravindra Pal Sharma and Dr. Kanta Sharma. Looking to her condition, the Doctor asked Gurditta Singh to take her to Government Hospital. On way to Government Hospital, Veerpal Kaur breathed her last and was taken back to the house at Radewala. Gurditta Singh went to the Police Station, Karanpur and informed about his wife having died by consuming insecticide spray. The information reduced into writing is Ex.D/2. At this Subhash Chandra, S.H.O. (P.W. 5) started proceedings Under Section 174 of the Code of Criminal Procedure and went to Village-Redewala, Circle Officer Inderjit Singh (P.W. 7) along with Subhash Chandra (P.W. 5) went to the site. He inspected the site and prepared the site inspection memo Ex.P/10A and site plan Ex.P/10. Gurditta Singh gave to the S.H.O. one iron 'dibba' of insecticide spray lying beneath the Godrej Almirah which was taken in possession vide Ex.P/2. On June 16, 1987 at 7.15 p.m. Balvindra Singh (P.W. 2), brother of the deceased gave the written report Ex.P/1 to S.H.O. Subhash Chandra (P.W. 5). On reaching Police Station at 9.30 p.m. Subhash Chandra chalked out the formal F.I.R. Ex.P/9 and registered the case. On June 17, 1987 Circle Officer Inderjit Singh (P.W. 7) went to Karanpur Hospital and prepared the inquest report Ex.P/3. He got the postmortem examination of the dead body conducted by the Medical Board consisting of Dr. Ikbal Singh (P.W. 10), Dr. Jagtar Singh Kosa and Dr. (Smt.) Suman Dutta on June 17, 1987 at 9.30 a.m. Dr. Ikbal Singh was the Chairman of the Board. One lacerated wound 1/4 cm x 1/4 cm at lower lip mucous membrance near right angle was found on the dead body. The postmortem examination report is Ex. P/21. The cause of death according to the Doctors was due to organo phosphoras poison. The Doctors, however, reserved final opinion on receipt of Chemical Examination Report of the Reserved viscera. The iron 'dibba', clothes of the deceased and viscera taken in possession during the course of investigation were sent for the Chemical Examination. The report of the Chemical Examiner is Ex. P/24. Gurditta Singh was arrested by Inderjit Singh (P.W. 7) on June 22, 1987 vide memo ex. P/15. Chand Kaur, Mother-in-law of the deceased was arrested on June 30, 1987 vide memo Ex. P./16.
3. Upon completion of necessary investigation, chargesheet against the appellant and the co-accused Chand Kaur was filed in the Court of Munsif and Judicial Magistrate, Sri-Karanpur. The learned Magistrate finding it a case exclusively triable by the Court of Session, committed the case to the Court of Session Judge, Sri Ganganagar. The case for trial reached the Court of Additional Sessions Judge No. 1, Sri Gamganagar. The learned Judge chargesheeted the two accused under Section 304B and in the alternative Under Section 304B read with Section 34, IPC and recorded their pleas. On their denial of the charges trial proceeded. In order to substantiate its case prosecution examined eleven witnesses in all. Chand Kaur died during the pendency of the trial. In his statement Under Section 313 of the Code of Criminal Procedure, appellant Gurditta Singh denied the allegation of demand of dowry and torturing or illtreating his wife Veerpal Kaur. He stated that his wife Veerpal Kaur was insisting upon his living separate from his mother. Chand Kaur but he being the only son of his mother was not agreeing to the wishes of his wife which was causing annoyance to her. That, on receiving information at the field on the day of the occurrence, he went to the house and took his wife to Dr. Ravindra Pal Sharma at Devta Nursing Home who advised him to take her to Government Hospital. While on way to Government Hospital, Veerpal Kaur expired. He brought her back to the house and asked his mother as to what had happened and his mother told him that in the morning there was quarrel between the two ladies and Veerpal Kaur insisted upon living separate and thereafter the mother became busy in house-hold business and Veerpal Kaur consumed the spray. He informed his in-laws by sending a person in Jeep and himself went to the Police Station and informed about the incident. That, he had two children one aged 51/2 years and other 21/2 years. That, his mother-in-law and brother-in-law Balvindra Singh (P.W.2) used to tell him that he should get the land transferred in the names of his children and wife and should live separate from the mother but he refused to do so. That, Naseed Kaur (P.W. 9) had gone to Jail where he was lodged and told him that he should transfer the land in the name of the children and they will not depose against him but he refused to do so. That, his brother-in-law Balvindra Singh (P.W. 2) has filed a suit for the land in the Sub Divisional Magistrate's Court, the certified copy of which is Ex.D/6. That, he has never tortured or illtreated his wife. That, his wife wanted to get the land transferred in her name and in the name of her children. To substantiate the defence version three witnesses have been examined. The learned Judge placed reliance on the prosecution case and held that there was demand of dowry and on account of maltreatment Veerpal Kaur committed suicide. In view of this finding, the learned Judge convicted and sentenced the appellant as stated earlier and the appellant feeling aggrieved has preferred this appeal in this Court.
4. We heard Mr. M.L. Garg, learned counsel for the appellant, and Mr. Vijay Singh Choudhary, learned Public Prosecutor assisted by Mr. H.S.S. Kharlia, learned counsel for the Complainant.
5. The learned counsel for the appellant strenuously contended that the learned Judge has legally erred in placing reliance on the three near relatives of the deceased viz. Sarjit Singh (P.W. 1), her maternal uncle, Balvindra Singh (P.W. 2), her brother and Naseed Kaur (P.W. 9), her mother on the question of demand of dowry and illtreatment to her. It has been stressed by the learned counsel that there is no material on record against the appellant and, therefore, the question of presumption Under Section 113B of the Indian Evidence Act does not arise. The learned counsel for the appellant drew our attention to the statement of Balvindra Singh (P.W. 2) and submitted that the initial story given in Ex.P/1 was subsequently improved upon by mentioning the fact of demand of gold and money after the marriage. The learned counsel referred to the witnesses from the defence side and submitted that Darshan Singh (D.W. 1) and Pal Singh (D.W. 3) were neighbours of the house of the appellant and their statements should have been believed by the learned trial Judge regarding the cordial relations between the appellant and his wife and the quarrel between the mother-in-law and the daughter-in-law on account of the wife insisting upon living separate.
6. The learned Public Prosecutor controverting these submissions submitted that in the cases of demand of dowry only near relatives can know as to what was demanded and what was given and independent witness can be of no help in such matters. He argued that in cases of dowry death the presumption is against the husband and his relatives for maltreatment and harassment and the learned trial Judge has, therefore, rightly taken to be a case in which the husband and the mother-in-law demanded dowry and on the demand not being satisfied maltreated and tortured the deceased and under those circumstances, she had no other alternative but to do away with her life by consuming insecticide. A number of authorities on the point were referred from both the sides which we would presently discuss.
7. The dowry system is in existence from the time immemorial in different forms in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot by itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the list of dowry hungry persons who though not purturbed by the pathotic condition of the victim of the system have atleast fear of suffering penal consequences. The Legislature, as such enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the hapless weaker section of the society i.e. the women folk from the torture and harassment, mental and physical at the hands of the husband and in-laws on account of their parents being unable to quench the over increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life through marriage but the affluent section of the society even in certain cases has lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage are given deplorable form and the vows taken by the husband at the altar of marriage are pushed in oblivion and a continuous demand every now and then is either directly made by the husband and his relatives to the parents of the bride at the time of marriage or subsequent thereto.
8. Section 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as 'the Act') defines the term 'dowry' as under:
Section 2 Definition of 'Dowry' :-- In this Act "dowry" means and property or valuable security given or agreed to be given either directly or indirectly --
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim personal Law (shariat) applied.
9. The insertion of the word "or any time after the marriage" and "in connection of the marriage of the said parties" by amendments in the year 86 has significance because clever parties initially do not enter into any agreement make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that legislature in its wisdom included subsequent demands and the things given as inclusive in the definition of "dowry". Along with these amendments, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted as a new provision in the category of offences falling Under Sections 302, 304A and 307, IPC, in order to curb the lust of procurement of the dowry in the post marital life. Section 304B reads as under:--
304B. Dowry death : Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Explanation -- For the purpose of this sub-section "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
10. The torture and harassment ordinarily for life being confined in the four walls of the house, the cases depend upon the circumstantial evidence and it ordinarily becomes difficult to prove the allegation-levelled and as a safeguard to that, the Legislature enacted Section 113B in the Indian Evidence Act, which reads as under :--
113-B Presumption as to dowry death :---When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation:-- For the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).
11. The Dowry Prohibition Act is both a remedial and penal statute. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of the language employed in the statute. If a case under the provisions of the Dowry Act or the penal provisions related to it just referred to above, is established then the courts are to be stringent in dealing with the culprits. However, the cardinal principle of criminal law that unless guilt is established, the person accused should not be punished only because a lesson is to be given to the person involved in the crime or the court is morally satisfied about the commission of the crime. The Courts while taking stringent view and despite the obligation of making the Legislative enactment a success have also to keep in mind that the charge should be made out.
12. In the case of Chanchal Kumari v. Union Territory, Chandigarh, AIR 1986 SC 752 : (1986 Cri LJ 816), it has been observed that in the absence of dependable evidence in regard to the actual abetment, by any of the accused, for the deceased to commit suicide, accused are held entitled to be acquitted.
13. In the case of Ashok Kumar v. State of Punjab, 1987 Cri LJ 1412, when the suicide by wife was within seven years of the marriage, the question arose about the presumption Under Section 113B of the Evidence Act. Wife had committed suicide by consuming insecticide. During the course of investigation, it was not disclosed that the husband or any of his relations was oppressive or in any manner cruel towards the deceased. However, during the course of trial it was alleged that deceased was maltreated by her husband. On the facts and circumstances of the case, it was held that prosecution had failed to establish that the husband was guilty of cruelty to wife. Hence presumption Under Section 113B of the Evidence Act was not drawn.
14. In the case of Dalip Singh v. State of Punjab, 1988 (1) Crimes, 211, the wife died by hanging within one year of the marriage. Only two witnesses, father and brother of the deceased were examined to prove the maltreatment and harassment meted out to the deceased because of demand of dowry. The prosecution case being established, the fact of only two witnesses being relatives of the deceased did not come in the way of conviction of the accused.
15. In the case of Mohan Lal v. The State of Punjab 1984 (1) Chandigarh law Reporter, 647, the question about the legality of abetment to commit suicide came for consideration before the Court. The admitted position was that the wife had committed suicide by burning herself. Her husband and mother-in-law were the accused and the allegation was that they abetted her to commit suicide. There was no allegation about the accused being present at the time of the occurrence. The only evidence was that on earlier occasions they used to maltreat the deceased and used to tell her that she had not brought sufficient dowry. That fact alone was not taken to be sufficient to connect the accused with the commission of the crime.
16. On the other hand in the case of Smt. Shyama Devi v. State of West Bengal D.B. Cr. Appeal No. 183 of 1983 : (1987) Cri LJ 1163) decided on 20-2-87 by the Calcutta High Court the evidence of the relatives of the deceased without being corroborated from any person outside the family or residing in the vicinity of the house of in-laws, was taken to be sufficient evidence regarding the demand of dowry and the torture or harassment of the lady.
17. In the case of Wazir Chand v. State of Haryana 1989 SCC (Cr) 105 : (1989 Cri LJ 809), burn injuries sustained by housewife caused her death. The prosecution case was that she committed suicide by setting on fire. The evidence regarding the smell of kerosene from deceased's clothes, improbability of sustaining burn injuries accidentaly from stove, deliberate delay in taking the deceased to hospital/nursing home, deliberately avoiding to take her to Civil hospital and instead taking her to a nursing home where sufficient medical aid for burn injuries was not available and suppressing cries of the deceased by putting on loudly a radio or T.V. set being insufficient were not found reliable and the conviction Under Section 306 was not sustained. However, the conviction and sentence Under Section 498A was upheld because of the material on record relating to repeated dowry demand made and harassment meted out the deceased housewife by accused husband and father-in-law.
18. In the case of P.B. Biksdhapathi v. State of Andhra Pradesh 1989 Cr LJ 1186 drinking and coming late of the husband coupled with beating and demanding dowry was taken to amount to cruelty as defined in Section 498A, IPC in view of the legal effect of presumption Under Section 113A of the Evidence Act.
19. Keeping in mind the principles enunciated and the guidelines laid down in the various pronouncements by the courts referred to above and the aims and objects of the remedial Legislation under the Dowry Act and making demand of dowry punishable under the penal law, we would now discuss the facts and circumstances of the case to make out as to whether the ingredients of Section 304B have been established and it is a fit case in which presumption Under Section 113B of the Evidence Act has rightly been drawn.
20. The main ingredients to be proved for establishing a case Under Section 304B, IPC are (i) unnatural death of woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry.
21. In the present case, it has been duly established by the prosecution and not disputed by the defence side that the appellant Gurditta Singh and deceased Veerpal Kaur entered into wedlock on March 15, 1981 and Veerpal Kaur died on June 16, 1987 within seven years of her marriage. This is also not in dispute that the death was on account of her consuming insecticide i.e. spray to be used in fields to kill the insects and that, insecticide is ordinarily kept by farmers in their houses. The information Ex. D/ 2 lodged by the appellant at Police Station Karanpur speaks about the mode of death. The prosecution witnesses related to Veerpal Kaur also do not dispute that it was a case of suicide. It has also been not disputed by the prosecution that appellant Gurditta Singh was at his field when he was informed about his wife consuming insecticide.
22. The controversy however is that whereas the prosecution case is that Veerpal Kaur had brought an end to her life, on account of the cruel treatment and harassment by her husband, the appellant and her mother-in-law Chand Kaur because of her not bringing sufficient dowry from her father, the defence version is that Veerpal Kaur wanted her husband, the appellant, to live separate from his mother and get the land transferred in her name and in the names of her two sons and the appellant not heeding to her wishes, she was annoyed. That, on the date of occurrence there was a quarrel between Veerpal Kaur and her mother-in-law and on account of that she committed suicide by consuming spray.
23. The prosecution has examined three witnesses to substantiate its case that there was demand of dowry by the appellant and his mother and Veerpal Kaur was harassed.
24. Naseed Kaur (P.W. 9), is the mother of the deceased. She has stated about cash of rupees forty thousand and forty tolas of gold and other articles being given at the time of the marriage of Veerpal Kaur. She has also stated about the demand of rupees fifteen thousand after one year at the time of the birth of the first son to Veerpal Kaur and at the intervention of the Panchas rupees twelve thousand only being given. She has also stated that thereafter Veerpal Kaur gave birth to two more sons and both the times there was demand of money but money was not given and for that reason Gurditta Singh and his mother were harassing Veerpal Kaur and she had told this fact to the witness. According to the witness about fifteen days prior to her death Veerpal Kaur had come to her and told that she was being harassed by her husband and mother-in-law and they were demanding more gold. The witness further stated that seven or eight days prior to incident Balvindra Singh, her son, had gone to his sister Veerpal Kaur and thereafter they received the telephonic message of her death. The witness stated that the money, gold and articles were given by her mother-in-law who has died five or seven years back. Attention of the witness was drawn to her Police Statement Ex.D/3 in which it has not been written as to whom ten tolas of gold was given after the marriage. In that statement the fact of rupees twelve thousand being given on demand at the time of the birth of the first son to Veerpal Kaur is also missing and the witness could not explain the reason. The fact of her son going to see Veerpal Kaur seven or eight days prior to the incident also does not find place in Ex.D/3 and the witness could not explain the reason. The witness has also denied to have stated in Ex. D/3 that somebody had committed the murder of Veerpal Kaur by administering poision to her forcefully or deceitfully and she had not died herself. The witness stated that she might have consumed insecticide because she might have been tortured. Attention of the witness was drawn to portion A to B of her police statement Ex.D/3 where she has stated that they had a talk with Gurditta Singh and Chand Kaur that already much has been given what more they want and they told that they want nothing.
25. Balvindra Singh (P.W. 2), brother of the deceased has also stated that at the time of the marriage of Veerpal Kaur rupees forty thousand cash, forty tolas of gold and other articles were given. That, after one year of the marriage Gurditta Singh and his mother told him and his sister that the gold given was insufficient and at this he had his maternal uncle Sarjit Singh went to their house and gave ten tolas of gold. That, five months thereafter his sister gave birth to her first child and there was a demand of 'chhuchhak' and twelve thousand rupees were given. Thereafter his sister gave birth to two more sons but despite demand of money they gave nothing and for that reason, the husband and the mother-in-law were picking up quarrel with Veerpal Kaur and whenever he was going to see his sister she used to tell him about it. That, Veerpal Kaur had come to their house twenty days prior to her death and after two days, he took her back to her house. That, he had gone to the house of her sister eight days prior to her death and at that time Chand Kaur and Gurditta Singh did not talk with him. His sister told that they were feeling annoyed. That, whenever he was going there, they were making demand of dowry. Ex.P/1 is the report lodged by Balvindra Singh, when at the instance of Gurditta Singh the Police had reached the site. The witness has stated that forty tolas of gold and forty thousand cash were arranged by her grand-mother and he cannot say wherefrom she arranged it. In Ex.P/1 he has not mentioned about the cash and gold being given. He has also not written in it the fact of rupees twelve thousand being given, at the time of the both of her first child. He has admitted that he had never seen any mark of injury or beating on her sister's body nor any report was lodged anywhere about her being tortured or harassed. The reason given by him for not doing so was that in case he would have done so, the accused would have harassed her more. Ex. D/1 is his police statement wherein it has been written that his sister remained for two days at his house and then he went with her to Radewala and left her there. That, during those two dyas she had not told anything about her in-laws harassing her. That, in case she would have told so, he would not have sent her to her father-in-law's house. The witness did not deny to have stated so rather deposed that he did not remember whether he had stated so before the police or not. The witness admitted that for five years prior to the death of Veerpal Kaur no money was given in the form of dowry or 'chhuchhak' or on any other occasion. The statement of the witness in Ex. P/1 indicates that the demand about twelve thousand rupees and the amount being given and torturing of Veerpal Kaur by her husband and mother-in-law was an afterthought. Portion A to B of his Police statement falsifies his version and that of his mother that Veerpal kaur on her last visit to their house about twenty days prior to the incident had told them about any harassment because the witness has clearly stated there that if she would have complained, they would not have sent her back.
26. Sarjit Singh (P.W. 1 is the maternal uncle of the deceased. He has given version similar to his sister and nephew regarding the cash and ornaments being given at the time of marriage of Veerpal Kaur and subsequent thereto. He has stated that the first child of Veerpal Kaur had expired and thereafter two more sons were born and during the period of five years prior to her death nothing was given. The witness has stated about the demand of rupees fifteen thousand and Panchas being taken to Radewala and the matter being settled to twelve thousand rupees. He has stated that in his statement before the police recorded on the second day, he had not stated about any demand of rupees fifteen thousand and has only stated about twelve thousand being given. The witness stated that there is custom for giving money and articles in 'chhuchhak' according to the financial condition of the party at the time of the birth of a child. The witness has stated that he did not know as to where from arrangements for the money, gold and the articles were made because that was done by Nihal Kaur, grandmother of Veerpal Kaur, Nihal Kaur expired 5-7 years prior to the statement of Naseed Kaur (P.W. 9) recorded on Dec. 9, 1988 as stated by her and therefore, there arises no question of anything being given within five or seven years prior to the statement of the witnesses recorded about one year after the incident.
27. The learned counsel for the appellants strenuously contended that all the three witnesses are close relatives of the deceased, being her mother, brother and maternal uncle and in the absence of any independent witness, the fact of demand of dowry and cruel treatment and the harassment of Veerpal Kaur by the appellant and his mother should not have been believed by the learned Judge. It has been submitted by the learned counsel that Darshan Singh (D.W. 1) and Pal Singh (D.W. 3) happened to be the near neighbours of the appellant and if there would have been any maltreatment or harassment, it would not have escaped their notice. Mr. Garg emphasized that there is no reason to disbelieve these witnesses when they say that there was no quarrel between Gurditta Singh and his mother and Veerpal Kaur.
28. In order to arrive at a conclusion as to whether presumption Under Section 113B of the Evidence Act has rightly been drawn in the case, it is necessary to discuss the defence version.
29. It is not in dispute that appellant Gurditta Singh was at his field when Veerpal Kaur is said to have consumed insecticide. On being informed he went to the house and took her to Devta Nursing Home where Dr. Ravindra Pal examined her and asked him to take her to Government Hospital. Darshan Singh (D.W. 2) the neighbour had accompanied Gurditta in the Tractor when he had taken his wife to the Nursing Home of Dr. Ravindra Pal and stated that while at the instance of the Doctor she was being taken to Government Hospital, she breathed her last in the way and was brought back.
30. Indrajit Singh (P.W. 7), Investigating Officer has stated that there is Devta Nursing Home of Dr. Ravindra Pal and his wife Dr. Kanta Sharma at Karanpur. That, the accused had taken Veerpal Kaur at her consuming spray to Devta Nursing Home for her treatment and in this connection he had recorded the statement of Dr. Ravindra Pal.
31. So far as the recovery of ornaments from the almirah at the house of the appellant is concerned, he has not disputed that point. Even if ornaments and cash were given at the time of marriage or subsequent thereto, the pertinent question would be as to whether there was any further demand and the demand not being satisfied Veerpal Kaur was subjected to cruelty and harassment by the appellant and his mother.
31A. The defence version is that Veerpal Kaur was insisting upon her husband, the appellant, to live separate from her mother-in-law and she as well as her relatives wanted Gurditta Singh to get the land transferred in her name and in the names of her two sons. Naseed Kaur, mother of Veerpal Kaur at first admitted in cross-examination that many a times Gurditta Singh as asked to live separate from Chand Kaur but he did not agree. Then, taking hint from the objection by the counsel for the prosecution she expressed her ignorance about it. She also expressed ignorance about Gurditta Singh telling that he being the only son of his mother how could he live separate from her. The statement of the witness denotes that Veerpal Kaur desired to live separate from her mother-in-law and her husband was not agreeing to it. Darshan Singh (D.W. 1) the neighbourer, has stated that Veerpal Kaur used to tell Chand Kaur that she along with her husband may be permitted to live separate and Chand Kaur used to say that Gurditta was her only son who has been brought up by her with great difficult and therefore, she cannot separate him. It has been suggested to Naseed Kaur that she in order to grab the land wanted it to be transferred in the names of the sons of the deceased and because of the reluctance of the appellant to do so was against him. Naseed Kaur answered that the two sons of Veerpal Kaur were with the sister of Gurditta Singh. That, she wants to have the children but there is no intention for grabbing the land. She admitted that a suit has been filed by her son against Gurditta Singh for getting the land transferred in the names of the children. Nakshatra Singh (D.W. 2) who was in Jail from March 11, 1988 to January 1989 under Tada Act has stated that during that period Naseeb Kaur used to go there to see Gurditta and used to tell that he should transfer the land in the name of the Children and if he does so, she will not state against him. Naseeb Kaur has denied this fact but as stated above admitted that her son has instituted a case against Gurditta Singh for getting the land transferred in the name of his sons.
32. During the statement Under Section 113B of the Code of Criminal Procedure, the appellant has submitted Ex.D/6, the certified copy of the plaint in the suit filed by his brother-in-law Balvindra Singh in the Court of S.D.M. regarding the land to substantiate his case that his in-laws were throughout insisting upon transferring the land in the name of his wife and sons.
33. From the evidence discussed above, the defence version about there being some strained feelings between Veerpal Kaur and her mother-in-law on account of the former's intention to live separate appears to be plausible. However, the argument of the learned Public Prosecutor is that there is no cogent convincing evidence to establish that Veerpal Kaur has consumed insecticide on account of any quarrel with her mother-in-law on the day of occurrence, the presumption Under Section 113B of the Evidence Act has rightly been drawn by the learned trial Judge.
34. The words "it is shown" occurring in Section 304B are of significance for the reason that the initial burden of proving that circumstances envisaged by Section 304B, IPC did exist is on the prosecution. This being shown or established, the question of presumption Under Section 113B of the Evidence Act would arise. In other words to draw a presumption Under Section 113B of the Evidence Act, the necessary ingredient that it is shown that soon before her death she was subjected to cruelty or harassment, in connection with the demand of dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of Section 304B, the Court shall presume that the husband or any relative of the husband had caused dowry death.
34A. Whenever it is directed by the Evidence Act that the Court shall presume a fact, that fact shall be taken as proved unless and until it is disproved. Meaning thereby that the presumption is a rebuttable presumption. In this view of the matter, the prosecution has to prove the main factor of cruelty or harassment in connection with any demand of dowry.
35. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be seen before the death of a woman. The Courts are to scrutinise the evidence carefully because cases are not rare in which occassionally there is demand and then the atmosphere becomes Calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined in the four walls of the house. However, the courts are to be vigilant to scrutinise the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in-laws are strained for any reason whatsoever it might be.
36. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.
37. Coming to the facts of the case on hand, ornaments had of course been taken from the house of the appellant but that does hot prove that the ornaments were in possession of Chand Kaur and Veerpal Kaur could not use them. There is no evidence that there was any demand prior to the marriage. Regarding the demand subsequent to the marriage, the two witnesses have improved their version in the Court from what they have deposed before the Police. Statement of Balvindra Singh (P.W. 2) is that if his sister would have complained of any cruelty or harassment, he would not have sent her back when she has come to his house about twenty days prior to her death. It is important to note that no Panch who might have intervened for giving rupees twelve thousand on the birth of the first child, a year after the marriage, has been examined to substantiate the prosecution case. It is also noteworthy that the three witnesses on the point had admitted that nothing was given within five years preceding the incident.
38. In such circumstances, simply because a young lady has brought her life to a tragic end by committing suicide by consuming insecticide it cannot be said that she had embraced death on account of any demand Of dowry by her husband or mother-in-law which was not satisfied. While deciding the case of the husband appellant, this fact cannot be overlooked that he was not at the house at the relevant time and on being informed, he went to the house and took necessary step to get his wife treated by taking her to Devta Nursing Home. There is nothing to suggest any quarrel between the spouses. In the absence of material to bring home the guilt against the accused, we do not feel inclined to hold that the case against the appellant is established.
39. Consequently, the appeal of Gurditta Singh is allowed. His conviction and sentences are set aside. He is in Jail. He shall be set at liberty forthwith if not required in any other case.