LexSURESH KUMAR SINGH versus STATE OF U.P.
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[2009]7 S.C.R. 1068 A SURESH KUMAR SINGH t- V. STATE OF U.P. Criminal Appeal No. 939 of 2009 ~ B MAY 06, 2009 [S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860- ss.3048 and 498A - Conviction by courts below - On appeal, held: The death of woman did not • • take place within 7 years of marriage - Nothing to show that .< c cruelty was inflicted upon the deceased soon before death - Presumption u/s. 113A or uls. 1138 cannot be raised - Appellant cannot be held guilty uls. 3048 - However, he was rightly convicted uls. 498A - Sentence imposed on that count is maintained - Evidence Act, 1872 - S.113A, 1138. D The trial court convicted the appellant under Sections 3048 and 498A IPC for committing murder of his wife. High ' Court upheld the order of conviction. In appeal to this Court, defence of appellant was that E there was no evidence to show that the deceased was subjected to. cruelty soon before her death. - Partly allowing the appeal, the Court HELD: 1. One of the ingredients of Section 3048 IPC F is marriage within a period of seven years preceding the death. No such requirement finds place in Section 498A thereof. From the evidence of brother of deceased, P.W.1, it appears that he had talked of only one incident in respect whereof his evidence was admissible in law, that G is, when the deceased came back to her parental home six months after 'Gauna' ceremony, she had informed him ~ that if he did not give a ring and a chain, the accused • persons might kill her. It is also not in dispute that the matter rested at that as he talked to the appellant in that H 1068 SURESH KUMAR SINGH V. STATE OF U.P. 1069 behalf, whereafter he came and took her away. The matter A was therefore settled. There was nothing to show that any cruelty or harassment was meted out on that ground thereafter. So far as the other incident disclosed by him is concerned, it was one which he had heard from his wife and other female members of the family. It was, thus, hearsay, B as they were not examined. [Paras 16, 17] [1078-C-F] 2. In order to attract s.3048 IPC, it is imperative on • the part of the prosecution to establish that the cruelty or ,1- harassment was meted out to the deceased 'soon before her death'. There cannot be any doubt that it is a flexible c term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as 'proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry D demand was not too late and not too stale before the death .. of the victim. Some harassment which had taken place .: one year prior to the death without something more, could not have been considered to be a cruelty which had been , inflicted soon before the death of the deceased. It does E not satisfy the proximity test. As the death had not taken place within a period of sev_en years and there is no evidence that any cruelty has been inflicted upon the "I deceased soon before her death neither the presumption in terms of Section 1138 of the Evidence Act could have F been drawn nor it could be concluded that the appellant , is guilty of commission of offence under Section 3048. The appellant was rightly found guilty of commission of · offence under Section 498A IPC. Sentence imposed on him on that count is, therefore, maintained. [Paras 19, 21, G ,/ ~ 22, 23, 24] [1079-C-D; 1082-G-H; 1083-B-C] Satvir Singh and Ors. v. State of Punjab and Anr. (2001) 8 SCC 633; Harjit Singh v. State of Punjab (2006) 1 SCC 463; Thakkan Jha & .Ors. v. State of Bihar (2004) 13 SCC 348; Baldev Singh v. State of Punjab (2008) 13 SCC 233; Kamesh H 1070 SUPREME COURT REPORTS [2009] 7 S.C.R. A Panjiyar Alias Kamlesh Panjiyar v. State of Bihar (2005) 2 SCC 388; Ram Badan Sharma v. State of Bihar (2006) 10 SCC ~ 115; Devi Lal v. State of Rajasthan 2007 (12) SCALE 265; State of Rajasthan v. Jaggu Ram 2008 (1) SCALE 22 - relied on. B Case Law Reference (2001) 8 sec 633 relied on Para 19 (2006) 1 sec 463 relied on Para 19 ~ c (2004) 13 sec 348 relied on -\ Para 19 (2008) 13 sec 233 relied on Para 19 (2005) 2 sec 388 relied on Para 19 (2006) 10 sec 115 relied on Para 19 D 2007 (12) SCALE 265 relied on Para 19 2008 (1) SCALE 22 relied on Para 19 • CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E No. 939
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