On going through the dying declaration, we find that the
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of the dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 292 OF 2011
PRADEEP KUMAR … APPELLANT
VERSUS
STATE OF HARYANA … RESPONDENT
Read original judgment here; click here
Sudhansu Jyoti Mukhopadhaya, J.
Dated;JULY 2, 2014.
Citation; AIR 2014 SC 2694
This appeal is directed against the judgment dated 3rd
February, 2010, passed by the High Court of Punjab and Haryana at
Chandigarh in CRA No.909-SB of 1997. By the impugned common
judgment the High Court dismissed the revision application
preferred by the appellant and affirmed the conviction and
sentence for the offence punishable under Section 498-A and 304-B
IPC passed by the Sessions Judge, Karnal vide judgment dated 1st
August, 1997.
2. The case of the prosecution is that Manju alias Uma Devi had
been married to the accused Pradeep Kumar on 20th June, 1995. On 1st
March, 1996 she received burn injuries and was got admitted in the
Medical College Hospital, Rohtak. On 2nd March, 1996, she made her
dying declaration before the Chief Judicial Magistrate, Rohtak. In
the first part of the said dying declaration she asserted that it
was a case of accident, whereas in the latter part she alleged
that her husband had been pressing to fetch a sum of Rs. One lakh
from her parents and had been threatening to kill her if she did
not bring the money. She also alleged that around 5.30 a.m. on 1st
March, 1996 her husband doused her in kerosene from behind and set
her on fire and later on he tried to save her when she raised
alarm and on doing so his hands got burnt.
On the basis of this statement, First Information Report was
recorded against the accused. The matter was investigated. On 12th
March, 1996 Manju alias Uma died. Thereafter, the case was
converted under Section 304-B IPC and after completion of
1
Page 2
investigation challan was presented in the Court and on
commitment, the accused was charged in the manner noticed above.
3. In support of their case, prosecution examined 9 witnesses.
Usha (PW-6), mother of the deceased and Sapattar Singh (PW-8),
father of the deceased are the material witnesses.
4. On appreciation of evidence and hearing the parties learned
Sessions Judge, Karnal, observed as follows:
“20. From the totality of the discussion noticed
herein above it would appear that the accused had
been responsible for the murder of his wife and
also of causing torture and harassment to her.
However, since he has been charged only under
Section 498-A and 304-B Indian Penal Code, I would
hold him guilty for the said offence and convict
him there under which are lesser offences than
Section 302 Indian Penal Code. I call upon the
accused to address argument and to show the
extenuating circumstances and to address arguments
on the quantum of sentence.”
5. Learned counsel for the appellant submitted that the medical
evidence is contrary to the prosecution story and does not support
the case of the prosecution. In this regard it was contended that
if kerosene oil was poured on the deceased from behind then the
burns would have been on the back of the deceased. However, the
medical report/postmortem report does not find any burn injuries
on the back of the deceased. It was further contended that the
Trial Court and the High Court failed to appreciate that the
occurrence was an accident as injuries were on the face, chest,
and legs of the deceased which show and prove that the kerosene
oil fell on her after bursting of kerosene stove.
6. Learned counsel further submitted that so called dying
declaration cannot be relied upon, as first part of it is
contradictory to the second part.
7. In the present case, Usha Devi (PW-6), mother of the deceased
and Subedar Sapattar Singh (PW-8), father of the deceased are the
material witnesses.
8. Usha Devi (PW-6), in her deposition stated that Manju, her
daughter was married to the accused Pradeep Kumar on 20th June,
1995. In the evening of 1st March, 1996 at about 7 p.m. Jal Singh
2
Page 3
came to her and told her that the health of Manju was not proper
and that she was admitted in Medical College Hospital, Rohtak. She
reached Medical College Hospital, Rohtak around 12/12.30 a.m. In
the Hospital the accused Pradeep Kumar and Santosh met her and
told that Manju had received burns from a stove. When she went to
see her daughter, Manju told her that she had got up around 5.30
a.m. when the accused Pradeep Kumar doused her in kerosene and set
her on fire. She then stayed with her daughter, who died on 12th
March, 1996. She stated that she did not know whether her daughter
ever made a statement to the Magistrate. She further stated that
her daughter had told her that there used to be quarrel in the
family as the accused used to demand for Rs.1 lakh for running a
piggery farm.
In her examination-in-chief, Usha Devi (PW-6),mother of the
deceased deposed that when she reached the Hospital to see her
daughter, the accused and other persons were present there so her
daughter could not disclose anything to her. The Police did not
record her statement so long she was admitted in the Medical
College Hospital, Rohtak. She further stated that on 24th March,
1996 she had stated before the Police that her daughter Manju had
told her that she received burn injuries from stove. Earlier she
had a statement before Police on 13th March, 1996 wherein she
stated that she had faith in the statement of Manju made before
the Magistrate. She denied the suggestion that she had deposed
before the Police that her daughter told her that she received
burn injuries on account of bursting of stove. However, when she
was confronted with portion ‘A’ to ‘A’ in Ex.DA it was found to
have been so recorded.
9. Subedar Sapattar Singh (PW-8), stated that on 3rd March, 1996,
he received a telephonic call from his wife from Rohtak that his
daughter had been burnt and that he should come immediately. After
obtaining leave from his Company Commander, he came to Rohtak by
the evening of 4th March, 1996. He talked to his daughter
(deceased). She told him that she had already made a statement to
the Magistrate which should be accepted by them. When he talked to
his daughter in the absence of others she told him that she and
3
Page 4
her husband wanted to open a piggery farm, and that Santosh Devi
came to their house and told Pardeep Kumar-accused to obtain a sum
of rupees one lakh from his father-in-law i.e himself and that he
should not apply for a loan. Pardeep at the instance of Santosh
pressurized his wife(deceased) and also abused her physically in
order to coerce her to meet the demand. PW.8 further stated that
on 20th January, 1996, he received a letter from his daughter
stating that the accused wanted a colour television. In the month
of January his daughter and Pradeep came to his house and his
daughter told him that she needed her Matriculation Certificate as
she had to apply for a loan for piggery farm. She told that mother
of Pradeep did not provide food to her. On 12th, his daughter died
and on 13th the dead body was taken to village Ardana because the
people from Ardana were in large number and in Rohtak he himself
and his wife were only present.
During the cross-examination, Sapattar Singh (PW-8), stated
that on 4th March, 1996 his daughter did not tell anything beyond
the fact that she had already made a statement before the
Magistrate which should be accepted by them. He remained with his
daughter from 4th March, 1996 till her death. During this period no
police officer met him. Police came to the Medical College
Hospital on 13th March, 1996 and he made a statement before the
Police.
10. Shri A.K. Bimal, CJM, Rohtak in his deposition stated that on
2nd March, 1996, ASI, Jai Prakash moved an application Ex.PA to him
to record the statement of Manju wife of Pradeep Kumar, who was
admitted in the Medical College Hospital, Rohtak. He proceeded to
the Hospital and reached there at about 2 p.m. He obtained the
opinion of the Doctor regarding the fitness of the patient. The
Doctor gave his opinion Ex.PA/1 that the patient was fit to make a
statement. Thereupon, he recorded the statement of Manju alias Uma
Devi – EX.PB. It was read out to her and she gave thumb mark on it
in token of its correctness. The Doctor attending upon the patient
gave his endorsement Ex.PB/1 that the patient remained fit to make
statement throughout the period of making the statement. After
recording the statement he allowed a copy of it to be taken by the
4
Page 5
Police and made his endorsement Ex.PB/2 in this connection. The
patient was identified by the Doctor attended upon the patient.
The patient had made two statements at the same time. Both these
statements were made by her in sequence and were recorded at the
same time one after the other.
In his cross-examination, CJM stated that after recording of
the first part of the statement when he asked the patient to put
her thumb impression the patient told him that she wanted to make
a truthful statement provided he did not say to anybody else. He
asked the patient to put her signatures. But she was not in a
position to put her signatures, therefore, her thumb impressions
were taken.
11. Ex.PA is the dying declaration which reads as follows:
“Copy of writing in as under:-
Q. Are you married?
Ans. I am married and having pregnancy of 7 month.
After getting myself examined in ultra-sound,
I have come to know that the foetus has been
smashed.
Q. How many years of your marriage have passed?
Ans. My marriage was performed on 20.6.95.
Q. How you caught fire?
Ans. Yesterday at 5.30/6.00 a.m. I started
preparing tea outside the varandah. My
husband was sleeping in the last room. When
the pump of stove was pressed to air and
match stock was lit on, the stove at once got
burst and the terrycot suit worn by me caught
fire and when I raised alarm
RO& AC Sd/- C.J.M.
2.3.1996
Again said my statement be recorded again, because
this statement was tutored to me by my husband.
Now I want to make the statement again. You may
not show the statement to anybody.
Q. What happened with you?
Ans. A dispute was going on with my husband for
the last 10/15 days and he used to beat me
and used to remain at the house and was doing
nothing. One day my husband tried to hang me
to death and demanded Rs.One Lakh from my
parents otherwise he would hang me to death.
He first tried to burn me in the night and
5
Page 6
when in the morning at 5.30 a.m. I went to
bathroom he sprinkled the oil on the clothes
from my back side and lit on the match stick
and rushed towards inside. I raised noise
upon which other persons saved me.
Thereafter, my husband came there. He torn
my clothes at the spot. I have been brought
to Rohtak because I had been told that I
shall narrate all this to the police. My
mother-in-law prepares the meals herself. She
prepares meals for my sister-in-law but she
does not provide meals to me.
Q. Why did you make wrong statement earlier?
Ans. I was made to understand to make such
statement.
Q. Are you literate?
Ans. Yes. I am matriculate.
RO & AC.
R.T.I. of Manju
Certified that patient remained fit
throughout her statement.
Sd/-A.K. Vimal,
S.J.M. Rohtak,
2.3.96 at 2.30 P.M.”
On going through the dying declaration, we find that the
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of the dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
12. Dr. S.S. Dahiya (PW-7) conducted postmortem examination on the
dead body of Manju wife of Pradeep Kumar. He stated that there was
superficial to deep burns all over the body except face scalp,
both legs and feet and a part of left upper arm. Pockets of pus
were preset at some places. Liver spleen kidneys and both lungs
were congested. In his opinion the cause of death in this case was
burns which were ante mortem in ordinary cause of events. Probable
time that elapsed between injury and death was within few hours to
few days and between death and postmortem was about 24 hours.
In his cross-examination, Dr.S.S.Dahiya (PW-7) stated that
since the body of the deceased had been burnt it was unlikely that
6
Page 7
marks of the other injuries could be seen. If the deceased was
sitting in front of the stove and the stove got burst she could
have received injuries on her face and scalp which were not there
in this case. He agreed with the suggestion that if kerosene was
poured from behind the deceased and she was put on fire there
would be injuries on the back side of the deceased. It is possible
that the deceased could receive burn injuries if on account of
pinning of the stove the oil and the flame left from the stove but
in that case also the face and scalp should have been burnt which
was not there in this case.
13. On going through the dying declaration, we have held that the
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
14. Usha Devi (PW-6), mother of the deceased-Manju stated that
Manju had told her that there was a quarrel in the family because
the accused had been making a demand of Rs. One lakh for running a
piggery farm. Manju had also sent a letter to her father making a
demand of Rs.5,000/-. Letter is Ex.PJ.
15. Sapattar Singh (PW-8), father of the deceased has also deposed
with regard to the demand of the appellant. Although, appellant
donated blood to save the life of his wife but it was of no use as
it was too late. The deceased in the dying declaration stated that
her husband had stated that he would hang her to death if his
demand for Rs.1 lakh is not met by her parents and on 1st March,
1996, her husband tried to hang her. The appellant had initially
tried to set her on fire during the night and when in the morning
at 5.30 a.m. she went to bathroom he sprinkled the oil on the
clothes from her back side and set her on fire. She categorically
stated that earlier part of the statement was made at the
instigation of her husband. The deceased had no reason to falsely
implicate her husband particularly when she had suffered from burn
injury.
7
Page 8
16. From the aforesaid, evidence of Sapattar Singh (PW-8) and
dying declaration, we find that there was a demand of dowry and
harassment soon before the death.
17. For the purpose of Section 304-B IPC, a presumption can be
raised only on the proof of the following essentials:
“(a) Death of a woman took place within seven
years of her marriage.
(b) Such death took place not under normal
circumstances.
(c) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(d)Such cruelty or harassment was for, or in
connection with, any demand for dowry and
(e) Such cruelty or harassment was soon
before her death.
18. The expression “soon before her death” used in the substantive
Section 304-B IPC and 113-B of the Evidence Act was considered by
this Court in Hira Lal & Others Vs. State (Govt. of NCT), Delhi,
(2003)8 SCC 80, which reads as follows:
“8. Section 304-B IPC which deals with dowry death,
reads as follows:
“304-B. Dowry death.—(1) Where the death of a
woman is caused by any burns or 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).
(2) 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.”
The provision has application when death of a woman
is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon
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Page 9
before her death she was subjected to cruelty or
harassment by her husband or any relatives of her
husband for, or in connection with any demand for
dowry. In order to attract application of Section
304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns
or bodily injury or otherwise than under a normal
circumstance.
(ii) Such a death should have occurred within
seven years of her marriage.
(iii) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
(iv) Such cruelty or harassment should be for or
in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have
been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant
for the case at hand. Both Section 304-B IPC and
Section 113-B of the Evidence Act were inserted as
noted earlier by Dowry Prohibition (Amendment) Act 43
of 1986 with a view to combat the increasing menace
of dowry deaths. Section 113-B reads as follows:
“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 purposes of this section,
‘dowry death’ shall have the same meaning as in
Section 304-B of the Indian Penal Code (45 of 1860).”
The necessity for insertion of the two provisions has
been amply analysed by the Law Commission of India in
its 21st Report dated 10-8-1988 on “Dowry Deaths and
Law Reform”. Keeping in view the impediment in the
pre-existing law in securing evidence to prove dowryrelated
deaths, the legislature thought it wise to
insert a provision relating to presumption of dowry
death on proof of certain essentials. It is in this
background that presumptive Section 113-B in the
Evidence Act has been inserted. As per the definition
of “dowry death” in Section 304-B IPC and the wording
in the presumptive Section 113-B of the Evidence Act,
one of the essential ingredients, amongst others, in
both the provisions is that the woman concerned must
have been “soon before her death” subjected to
cruelty or harassment “for or in connection with the
demand of dowry”. Presumption under Section 113-B is
a presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the court
9
Page 10
to raise a presumption that the accused caused the
dowry death. The presumption shall be raised only on
proof of the following essentials:
(1) The question before the court must be whether
the accused has committed the dowry death of the
woman. (This means that the presumption can be raised
only if the accused is being tried for the offence
under Section 304-B IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her
death.”
19. In the present case, it is not in dispute that marriage took
place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar
got burnt on 1st March, 1996 and died on 12th March, 1996 within
nine months of her marriage. Death of Manju was caused by burns
i.e. otherwise than under normal circumstances. It has already
been seen that soon before her death she was subjected to cruelty
and harassment in connection with demand of dowry. All the five
ingredients were proved by the prosecution. Under Section 113-B of
the Evidence Act when a question arises whether a person committed
dowry death and it is proved that the death of woman took place
within seven years of marriage; such death took place not under
normal circumstances and soon before the death deceased was
subjected to cruelty or harassment by such person for or in
connection with any demand for dowry, the Court shall presume that
such person had caused the dowry death. The prosecution having
successfully proved the dowry death, the Trial Court and the High
Court correctly held the accused Pradeep Kumar guilty of the
offence under Section 304B.
20. Section 498-A IPC reads as follows:
“498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the
husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable to
fine.
Explanation.—For the purpose of this section,
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Page 11
“cruelty” means—
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person
related to her to meet any unlawful demand for
any property or valuable security or is on
account of failure by her or any person related
to her to meet such demand.”
21. In the present case, on the basis of the evidence of Subedar
Sapattar Singh (PW-8) and dying declaration, it can be clearly
concluded that the Trial Court and the High Court rightly held
that the accused Pradeep Kumar had subjected Manju to harassment
as defined under Clause (b) of explanation to Section 498-A.
22. In view of the aforesaid observation and finding, we find no
ground to interfere with impugned judgment. In absence of any
merit, the appeal is dismissed. Bail bond stands cancelled.
Appellant is directed to be taken into custody forthwith to serve
the remainder period of sentence.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(S.A. BOBDE)
NEW DELHI,
JULY 2, 2014.
Print Page
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of the dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 292 OF 2011
PRADEEP KUMAR … APPELLANT
VERSUS
STATE OF HARYANA … RESPONDENT
Read original judgment here; click here
Sudhansu Jyoti Mukhopadhaya, J.
Dated;JULY 2, 2014.
Citation; AIR 2014 SC 2694
This appeal is directed against the judgment dated 3rd
February, 2010, passed by the High Court of Punjab and Haryana at
Chandigarh in CRA No.909-SB of 1997. By the impugned common
judgment the High Court dismissed the revision application
preferred by the appellant and affirmed the conviction and
sentence for the offence punishable under Section 498-A and 304-B
IPC passed by the Sessions Judge, Karnal vide judgment dated 1st
August, 1997.
2. The case of the prosecution is that Manju alias Uma Devi had
been married to the accused Pradeep Kumar on 20th June, 1995. On 1st
March, 1996 she received burn injuries and was got admitted in the
Medical College Hospital, Rohtak. On 2nd March, 1996, she made her
dying declaration before the Chief Judicial Magistrate, Rohtak. In
the first part of the said dying declaration she asserted that it
was a case of accident, whereas in the latter part she alleged
that her husband had been pressing to fetch a sum of Rs. One lakh
from her parents and had been threatening to kill her if she did
not bring the money. She also alleged that around 5.30 a.m. on 1st
March, 1996 her husband doused her in kerosene from behind and set
her on fire and later on he tried to save her when she raised
alarm and on doing so his hands got burnt.
On the basis of this statement, First Information Report was
recorded against the accused. The matter was investigated. On 12th
March, 1996 Manju alias Uma died. Thereafter, the case was
converted under Section 304-B IPC and after completion of
1
Page 2
investigation challan was presented in the Court and on
commitment, the accused was charged in the manner noticed above.
3. In support of their case, prosecution examined 9 witnesses.
Usha (PW-6), mother of the deceased and Sapattar Singh (PW-8),
father of the deceased are the material witnesses.
4. On appreciation of evidence and hearing the parties learned
Sessions Judge, Karnal, observed as follows:
“20. From the totality of the discussion noticed
herein above it would appear that the accused had
been responsible for the murder of his wife and
also of causing torture and harassment to her.
However, since he has been charged only under
Section 498-A and 304-B Indian Penal Code, I would
hold him guilty for the said offence and convict
him there under which are lesser offences than
Section 302 Indian Penal Code. I call upon the
accused to address argument and to show the
extenuating circumstances and to address arguments
on the quantum of sentence.”
5. Learned counsel for the appellant submitted that the medical
evidence is contrary to the prosecution story and does not support
the case of the prosecution. In this regard it was contended that
if kerosene oil was poured on the deceased from behind then the
burns would have been on the back of the deceased. However, the
medical report/postmortem report does not find any burn injuries
on the back of the deceased. It was further contended that the
Trial Court and the High Court failed to appreciate that the
occurrence was an accident as injuries were on the face, chest,
and legs of the deceased which show and prove that the kerosene
oil fell on her after bursting of kerosene stove.
6. Learned counsel further submitted that so called dying
declaration cannot be relied upon, as first part of it is
contradictory to the second part.
7. In the present case, Usha Devi (PW-6), mother of the deceased
and Subedar Sapattar Singh (PW-8), father of the deceased are the
material witnesses.
8. Usha Devi (PW-6), in her deposition stated that Manju, her
daughter was married to the accused Pradeep Kumar on 20th June,
1995. In the evening of 1st March, 1996 at about 7 p.m. Jal Singh
2
Page 3
came to her and told her that the health of Manju was not proper
and that she was admitted in Medical College Hospital, Rohtak. She
reached Medical College Hospital, Rohtak around 12/12.30 a.m. In
the Hospital the accused Pradeep Kumar and Santosh met her and
told that Manju had received burns from a stove. When she went to
see her daughter, Manju told her that she had got up around 5.30
a.m. when the accused Pradeep Kumar doused her in kerosene and set
her on fire. She then stayed with her daughter, who died on 12th
March, 1996. She stated that she did not know whether her daughter
ever made a statement to the Magistrate. She further stated that
her daughter had told her that there used to be quarrel in the
family as the accused used to demand for Rs.1 lakh for running a
piggery farm.
In her examination-in-chief, Usha Devi (PW-6),mother of the
deceased deposed that when she reached the Hospital to see her
daughter, the accused and other persons were present there so her
daughter could not disclose anything to her. The Police did not
record her statement so long she was admitted in the Medical
College Hospital, Rohtak. She further stated that on 24th March,
1996 she had stated before the Police that her daughter Manju had
told her that she received burn injuries from stove. Earlier she
had a statement before Police on 13th March, 1996 wherein she
stated that she had faith in the statement of Manju made before
the Magistrate. She denied the suggestion that she had deposed
before the Police that her daughter told her that she received
burn injuries on account of bursting of stove. However, when she
was confronted with portion ‘A’ to ‘A’ in Ex.DA it was found to
have been so recorded.
9. Subedar Sapattar Singh (PW-8), stated that on 3rd March, 1996,
he received a telephonic call from his wife from Rohtak that his
daughter had been burnt and that he should come immediately. After
obtaining leave from his Company Commander, he came to Rohtak by
the evening of 4th March, 1996. He talked to his daughter
(deceased). She told him that she had already made a statement to
the Magistrate which should be accepted by them. When he talked to
his daughter in the absence of others she told him that she and
3
Page 4
her husband wanted to open a piggery farm, and that Santosh Devi
came to their house and told Pardeep Kumar-accused to obtain a sum
of rupees one lakh from his father-in-law i.e himself and that he
should not apply for a loan. Pardeep at the instance of Santosh
pressurized his wife(deceased) and also abused her physically in
order to coerce her to meet the demand. PW.8 further stated that
on 20th January, 1996, he received a letter from his daughter
stating that the accused wanted a colour television. In the month
of January his daughter and Pradeep came to his house and his
daughter told him that she needed her Matriculation Certificate as
she had to apply for a loan for piggery farm. She told that mother
of Pradeep did not provide food to her. On 12th, his daughter died
and on 13th the dead body was taken to village Ardana because the
people from Ardana were in large number and in Rohtak he himself
and his wife were only present.
During the cross-examination, Sapattar Singh (PW-8), stated
that on 4th March, 1996 his daughter did not tell anything beyond
the fact that she had already made a statement before the
Magistrate which should be accepted by them. He remained with his
daughter from 4th March, 1996 till her death. During this period no
police officer met him. Police came to the Medical College
Hospital on 13th March, 1996 and he made a statement before the
Police.
10. Shri A.K. Bimal, CJM, Rohtak in his deposition stated that on
2nd March, 1996, ASI, Jai Prakash moved an application Ex.PA to him
to record the statement of Manju wife of Pradeep Kumar, who was
admitted in the Medical College Hospital, Rohtak. He proceeded to
the Hospital and reached there at about 2 p.m. He obtained the
opinion of the Doctor regarding the fitness of the patient. The
Doctor gave his opinion Ex.PA/1 that the patient was fit to make a
statement. Thereupon, he recorded the statement of Manju alias Uma
Devi – EX.PB. It was read out to her and she gave thumb mark on it
in token of its correctness. The Doctor attending upon the patient
gave his endorsement Ex.PB/1 that the patient remained fit to make
statement throughout the period of making the statement. After
recording the statement he allowed a copy of it to be taken by the
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Police and made his endorsement Ex.PB/2 in this connection. The
patient was identified by the Doctor attended upon the patient.
The patient had made two statements at the same time. Both these
statements were made by her in sequence and were recorded at the
same time one after the other.
In his cross-examination, CJM stated that after recording of
the first part of the statement when he asked the patient to put
her thumb impression the patient told him that she wanted to make
a truthful statement provided he did not say to anybody else. He
asked the patient to put her signatures. But she was not in a
position to put her signatures, therefore, her thumb impressions
were taken.
11. Ex.PA is the dying declaration which reads as follows:
“Copy of writing in as under:-
Q. Are you married?
Ans. I am married and having pregnancy of 7 month.
After getting myself examined in ultra-sound,
I have come to know that the foetus has been
smashed.
Q. How many years of your marriage have passed?
Ans. My marriage was performed on 20.6.95.
Q. How you caught fire?
Ans. Yesterday at 5.30/6.00 a.m. I started
preparing tea outside the varandah. My
husband was sleeping in the last room. When
the pump of stove was pressed to air and
match stock was lit on, the stove at once got
burst and the terrycot suit worn by me caught
fire and when I raised alarm
RO& AC Sd/- C.J.M.
2.3.1996
Again said my statement be recorded again, because
this statement was tutored to me by my husband.
Now I want to make the statement again. You may
not show the statement to anybody.
Q. What happened with you?
Ans. A dispute was going on with my husband for
the last 10/15 days and he used to beat me
and used to remain at the house and was doing
nothing. One day my husband tried to hang me
to death and demanded Rs.One Lakh from my
parents otherwise he would hang me to death.
He first tried to burn me in the night and
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when in the morning at 5.30 a.m. I went to
bathroom he sprinkled the oil on the clothes
from my back side and lit on the match stick
and rushed towards inside. I raised noise
upon which other persons saved me.
Thereafter, my husband came there. He torn
my clothes at the spot. I have been brought
to Rohtak because I had been told that I
shall narrate all this to the police. My
mother-in-law prepares the meals herself. She
prepares meals for my sister-in-law but she
does not provide meals to me.
Q. Why did you make wrong statement earlier?
Ans. I was made to understand to make such
statement.
Q. Are you literate?
Ans. Yes. I am matriculate.
RO & AC.
R.T.I. of Manju
Certified that patient remained fit
throughout her statement.
Sd/-A.K. Vimal,
S.J.M. Rohtak,
2.3.96 at 2.30 P.M.”
On going through the dying declaration, we find that the
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of the dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
12. Dr. S.S. Dahiya (PW-7) conducted postmortem examination on the
dead body of Manju wife of Pradeep Kumar. He stated that there was
superficial to deep burns all over the body except face scalp,
both legs and feet and a part of left upper arm. Pockets of pus
were preset at some places. Liver spleen kidneys and both lungs
were congested. In his opinion the cause of death in this case was
burns which were ante mortem in ordinary cause of events. Probable
time that elapsed between injury and death was within few hours to
few days and between death and postmortem was about 24 hours.
In his cross-examination, Dr.S.S.Dahiya (PW-7) stated that
since the body of the deceased had been burnt it was unlikely that
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marks of the other injuries could be seen. If the deceased was
sitting in front of the stove and the stove got burst she could
have received injuries on her face and scalp which were not there
in this case. He agreed with the suggestion that if kerosene was
poured from behind the deceased and she was put on fire there
would be injuries on the back side of the deceased. It is possible
that the deceased could receive burn injuries if on account of
pinning of the stove the oil and the flame left from the stove but
in that case also the face and scalp should have been burnt which
was not there in this case.
13. On going through the dying declaration, we have held that the
second part of dying declaration inspires confidence so as to
consider it to be a dying declaration of the deceased. The first
part of dying declaration is tutored by the accused-husband as
apparent from the said part of the dying declaration.
14. Usha Devi (PW-6), mother of the deceased-Manju stated that
Manju had told her that there was a quarrel in the family because
the accused had been making a demand of Rs. One lakh for running a
piggery farm. Manju had also sent a letter to her father making a
demand of Rs.5,000/-. Letter is Ex.PJ.
15. Sapattar Singh (PW-8), father of the deceased has also deposed
with regard to the demand of the appellant. Although, appellant
donated blood to save the life of his wife but it was of no use as
it was too late. The deceased in the dying declaration stated that
her husband had stated that he would hang her to death if his
demand for Rs.1 lakh is not met by her parents and on 1st March,
1996, her husband tried to hang her. The appellant had initially
tried to set her on fire during the night and when in the morning
at 5.30 a.m. she went to bathroom he sprinkled the oil on the
clothes from her back side and set her on fire. She categorically
stated that earlier part of the statement was made at the
instigation of her husband. The deceased had no reason to falsely
implicate her husband particularly when she had suffered from burn
injury.
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16. From the aforesaid, evidence of Sapattar Singh (PW-8) and
dying declaration, we find that there was a demand of dowry and
harassment soon before the death.
17. For the purpose of Section 304-B IPC, a presumption can be
raised only on the proof of the following essentials:
“(a) Death of a woman took place within seven
years of her marriage.
(b) Such death took place not under normal
circumstances.
(c) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(d)Such cruelty or harassment was for, or in
connection with, any demand for dowry and
(e) Such cruelty or harassment was soon
before her death.
18. The expression “soon before her death” used in the substantive
Section 304-B IPC and 113-B of the Evidence Act was considered by
this Court in Hira Lal & Others Vs. State (Govt. of NCT), Delhi,
(2003)8 SCC 80, which reads as follows:
“8. Section 304-B IPC which deals with dowry death,
reads as follows:
“304-B. Dowry death.—(1) Where the death of a
woman is caused by any burns or 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).
(2) 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.”
The provision has application when death of a woman
is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon
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before her death she was subjected to cruelty or
harassment by her husband or any relatives of her
husband for, or in connection with any demand for
dowry. In order to attract application of Section
304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns
or bodily injury or otherwise than under a normal
circumstance.
(ii) Such a death should have occurred within
seven years of her marriage.
(iii) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
(iv) Such cruelty or harassment should be for or
in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have
been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant
for the case at hand. Both Section 304-B IPC and
Section 113-B of the Evidence Act were inserted as
noted earlier by Dowry Prohibition (Amendment) Act 43
of 1986 with a view to combat the increasing menace
of dowry deaths. Section 113-B reads as follows:
“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 purposes of this section,
‘dowry death’ shall have the same meaning as in
Section 304-B of the Indian Penal Code (45 of 1860).”
The necessity for insertion of the two provisions has
been amply analysed by the Law Commission of India in
its 21st Report dated 10-8-1988 on “Dowry Deaths and
Law Reform”. Keeping in view the impediment in the
pre-existing law in securing evidence to prove dowryrelated
deaths, the legislature thought it wise to
insert a provision relating to presumption of dowry
death on proof of certain essentials. It is in this
background that presumptive Section 113-B in the
Evidence Act has been inserted. As per the definition
of “dowry death” in Section 304-B IPC and the wording
in the presumptive Section 113-B of the Evidence Act,
one of the essential ingredients, amongst others, in
both the provisions is that the woman concerned must
have been “soon before her death” subjected to
cruelty or harassment “for or in connection with the
demand of dowry”. Presumption under Section 113-B is
a presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the court
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to raise a presumption that the accused caused the
dowry death. The presumption shall be raised only on
proof of the following essentials:
(1) The question before the court must be whether
the accused has committed the dowry death of the
woman. (This means that the presumption can be raised
only if the accused is being tried for the offence
under Section 304-B IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her
death.”
19. In the present case, it is not in dispute that marriage took
place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar
got burnt on 1st March, 1996 and died on 12th March, 1996 within
nine months of her marriage. Death of Manju was caused by burns
i.e. otherwise than under normal circumstances. It has already
been seen that soon before her death she was subjected to cruelty
and harassment in connection with demand of dowry. All the five
ingredients were proved by the prosecution. Under Section 113-B of
the Evidence Act when a question arises whether a person committed
dowry death and it is proved that the death of woman took place
within seven years of marriage; such death took place not under
normal circumstances and soon before the death deceased was
subjected to cruelty or harassment by such person for or in
connection with any demand for dowry, the Court shall presume that
such person had caused the dowry death. The prosecution having
successfully proved the dowry death, the Trial Court and the High
Court correctly held the accused Pradeep Kumar guilty of the
offence under Section 304B.
20. Section 498-A IPC reads as follows:
“498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the
husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable to
fine.
Explanation.—For the purpose of this section,
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“cruelty” means—
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person
related to her to meet any unlawful demand for
any property or valuable security or is on
account of failure by her or any person related
to her to meet such demand.”
21. In the present case, on the basis of the evidence of Subedar
Sapattar Singh (PW-8) and dying declaration, it can be clearly
concluded that the Trial Court and the High Court rightly held
that the accused Pradeep Kumar had subjected Manju to harassment
as defined under Clause (b) of explanation to Section 498-A.
22. In view of the aforesaid observation and finding, we find no
ground to interfere with impugned judgment. In absence of any
merit, the appeal is dismissed. Bail bond stands cancelled.
Appellant is directed to be taken into custody forthwith to serve
the remainder period of sentence.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(S.A. BOBDE)
NEW DELHI,
JULY 2, 2014.
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