2004(2) Crimes 285 (SC)
Supreme Court of India
(From Punjab and Haryana High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Baljeet Singh and Anr. —Appellants
versus
State of Haryana —Respondent
Criminal Appeal No. 1161 of 2003
Decided on 24-2-2004

Important point
To draw a presumption against the accused invoking Section 113-B of the Evidence Act, there should be a death of a woman otherwise than in normal circumstances, within 7 years of marriage and it is for the prosecution to establish it.

Headnote:Indian Penal Code, 1860—Sections 304-B, 306, 498-A and 201—Evidence Act, 1872—Section 113B—Dowry death—Presumption available under Section 113-B of the Act—Onus of proving date of marriage—Suicide by taking pills of insecticide—Prosecution case of unnatural death within 7 years of marriage—Evidence led by prosecution to establish demand of dowry—Specific plea taken by accused persons that marriage had taken place 11 years prior to death of deceased—Whether Courts were justified in drawing an adverse presumption against the accused by shifting the onus on them to prove date of marriage—(No)—Law requires the prosecution to establish first by cogent evidence that death in the case occurred within 7 years—Oral evidence led by prosecution to establish the fact that appellant or his family used to harass deceased, not substantiated—Prosecution’s failure to prove basic facts—Conviction and sentence imposed on appellants by courts below set aside.

       Held : Having noticed the requirement of law both under Section 304-B of the IPC as also under Section 113-B of the Evidence Act, we are of the considered opinion that both the courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within 7 years of the marriage. Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within 5 years of her marriage as contended by PW-4. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which Sambat it was. (Para 17)

       Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana’s marriage thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. (Para 17)

       Both the courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the trial court which is as follows. “Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113-B of the Indian Evidence Act thus prosecution has been able to prove him the guilt”. This finding which is concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law. We will now consider whether the prosecution has established its case de hors the presumption available under the Evidence Act. In this process, we should bear in mind the fact that the complaint in question was filed nearly 8 days after the incident and a perusal of the said complaint shows that it was a well thought, deliberated and typed document which even mentions the sections relating to the offences of which the accused persons were said to be guilty. Though PW-4 has denied that this was a document prepared after consultation and on the advice of outsiders, we must note that he admittedly is an illiterate and, in our opinion, this denial is wholly false. The narration of facts in the complaint enumerates even the ingredients of the offences under the Indian Penal Code and the sections under which the offences fall. This undoubtedly goes to show that this is a document which has come into existence after lots of deliberation and consultation. In this context, the admission of the informant that he had gone to the court where the report to be lodged was prepared, is significant. (Paras 17 and 18)

       Bearing in mind the falsity we have found in the evidence of PW-4, we do not consider it safe to place reliance on such oral evidence led by the prosecution to establish the fact that the appellant or his family used to harass Darshana. There is one other aspect of the case to be borne in mind to consider the role played by the appellant in the alleged harassment of Darshana. It has come in evidence that the appellant was not residing in the village with his wife but was employed in Jagadhari in Ambala District and was only visiting the village now and then. This fact has been noticed by the trial court but it rejected the same by observing that if the appellant was not present when Darshana died the evidence under section 304-B is not effected by the factum of appellant being away from his house at the time of death, forgetting the fact that the argument of the defence was not merely the absence of the appellant at the time of death of Darshana but also the possibility of appellant’s involvement in the alleged harassment, since most of the time he was away from the village. That apart, we notice that the courts below have not founded the guilt of the appellant on the oral evidence produced by the prosecution but the same is based primarily on a presumption drawn under Section 113-B of the Evidence Act which we have held to be impermissible in law in view of the prosecution’s failure to prove the basic facts which was a condition precedent to the drawing of such a presumption. (Para 21)

       Result : Appeal allowed.