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TMI Blog2004 (2) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 years RI and to pay a fine of Rs. 500/- while it sentenced him to undergo 2 years RI for an offence punishable under Section 498A IPC. It convicted the second appellant for an offence punishable under Section 201 IPC and sentenced him to undergo 2 years RI. The sentences imposed on the first appellant Baljeet Singh were directed to run concurrently. Being aggrieved by the said conviction and sentence, the said convicted accused preferred an appeal before the High Court of Punjab Haryana at Chandigarh which by its impugned judgment confirmed the said conviction and sentence and dismissed the appeal. 2. It is against the said judgment of the High Court the two appellants filed the above criminal appeal. During the pendency of this appeal, A-3 Ganga Dutt died, hence, his appeal abated and the present appeal is confined to first appellant only. 3. Brief facts necessary for the disposal of this appeal are as follows: It is the case of the prosecution as stated by PW-4 Baldeva in his complaint lodged on 14.2.1987 as also in his evidence before the court that his daughter Darshana was married to the appellant herein about 5 years before the filing of the said complaint and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the onus of proof on the accused without the prosecution having proved the basic requirement under the said section. He also contended that the evidence led on behalf of the prosecution to establish either the demand of dowry or harassment meted out to deceased Darshana cannot be accepted at all because it is an afterthought of PW-4 to harass the family of the appellant after his daughter Darshana committed suicide. Learned counsel pointed out that though the death of Darshana took place on 6.2.1987 and her parents and relatives were present at the cremation, no complaint was immediately filed but a well drafted complaint making false allegations against the appellant was made by PW-4 on 14.2.1987. He also contended that the courts below erred in relying upon such a belated complaint. He further contended that the prosecution has tailed to establish that Darshana's death had occurred within 7 years of her marriage and the evidence led by the prosecution to establish demand of dowry and harassment have all emanated from interested sources, hence, the courts below erred in convicting the appellant and his father. 5. Ms. Avneet Toor, learned counsel appearing for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within 7 years of her marriage; (c) and the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death. 9. Section 113B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment. 10. The explanation to said section says the word dowry death shall have the same meaning as in Section 304B of the IPC which means such death should be otherwise than in normal circumstances and within 7 years of marriage. On a conjoint reading of these sections, it is clear that for drawing a presumption under Section 113B of the Evidence Act firstly there should be a death of a woman otherwise than in normal circumstances, within 7 years of marriage and the prosecution having shown that soon before her death she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence. Unless and until these preliminary facts are establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act also in so far as they relate to the proof of facts enumerated in the section before a presumption is drawn. 12. From the above, it is clear that certain conditions precedent by way of proved facts should be brought on record before the courts can draw a presumption under Sections 113A or 113B of the Evidence Act. 13. We will now examine whether the prosecution in this case has discharged its initial burden so as to attract the presumption under Section 113B of the Evidence Act and whether the courts below have correctly applied that law to the facts of this case. 14. The trial court in the course of its judgment while dealing with the presumption available under Section 113A and 113B held thus: In this case, now in view of new statutory provisions, onus also lies on the accused to rebut the presumption which may be raised under Section 113A of the Indian Evidence Act or under Section 113B of the Indian Evidence Act. 15. A reading of this part of the judgment clearly shows that the trial court proceeded as if a presumption is available against the accused merely because an allegation of death within 7 years of the marriage was made, without even the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the year of marriage. 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. It even examined defence witnesses in this regard. Be that as it may the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance it was for the prosecution to establish this fact which for reasons stated above, it has failed to do. 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 113B 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. 18. We will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings we have given in regard to the evidence of PW-4. 20. PW-5 the mother of the deceased in her examination-in-chief repeats whatever her husband has stated in his evidence which we have already considered and not found it safe to rely on. In her cross-examination she stated that after the death of Rohtas, who was her only brother, Darshana used to be depressed. She further states that she was also depressed because she had no children. This indicates that there is a possibility of Darshana having committed suicide in a state of depression. 21. PW-6 is an uncle of Darshana who also speaks about the harassment allegedly meted out by the appellant and his family to Darshana but these facts are not mentioned to the I.O. in his statement under Section 161 (See Ex.DA). He states that they came to know of the death of Darshana from one Balwan who had told about the death of Darshana to a cousin of Darshana, by name Dilbagh, who in turn had informed the other members of the family about the death of Darshana. Curiously none of the witnesses who came to know of the incident from Balwan are able to give either the correct address, the particulars of the caste and occupation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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