Criminal Appeal No.318 of 2011

29th October, 2014

Petitioner Counsel: Mr. FAKHRUDDIN, Sr. Adv., Mr. RAJ KISHOR CHOUDHARY, Ms. NEERU SHARMA, Mr. SADAF REHMAN, Mr. T. MAHIPAL
Respondent Counsel: Mr. ANKIT KUMAR LAL, Mr. MISHRA SAURABH

Cases Cited:
Kaliyaperumal & Anr. Vs. State of Tamil Nadu, 2003 ALL MR (Cri) 2398 (S.C.)=AIR 2003 SC 3828 [Para 14]
State of Punjab Vs. Parveen Kumar, (2005) 9 SCC 769 [Para 28]
State of A.P. Vs. Raj Gopal Asawa & Anr., 2004 ALL MR (Cri) 1469 (S.C.)=(2004) 4 SCC 470 [Para 30]

JUDGMENT

JUDGMENT :- This appeal has been preferred by the accused-appellant against the judgment dated 15th December, 2009, passed by the High Court of Judicature Madhya Pradesh at Jabalpur in Criminal Appeal No.7 of 1991. By the impugned judgment, the High Court dismissed the appeal preferred by the appellant thereby affirming the sentence passed by the Additional Session Judge, Dindori in Session Case No.10 of 1990, for an offence punishable under Sections 498-A and 304-B of the Indian Penal Code, 1860 (IPC).

2. The facts leading to the conviction of the appellant are as follows:

The deceased, Mamta Bai, was married to the appellant Srikant in the year 1986 in the collective Marriage Conference held at Jabalpur. The case of the prosecution is that at that time, no dowry was settled but afterward the appellant started demanding dowry of Rs.15,000/- and used to harass her and subjected her to cruelty on account of not fulfilling the demand. Badri Prasad Gupta, PW-17, the brother of Mamta, who was a Sub-Engineer in Irrigation Department at Baikunthpur, managed to help the appellant to open a hotel at Baikunthpur. The said hotel was run by him for 2½ months only. However, the appellant could not run the hotel properly hence it was closed. Thereafter, the appellant had gone to Bhopal for business purposes but on failure, he returned to Baikunthpur and intended to start a stationery business at Vikrampur for which Badri Prasad Gupta, PW-17, gave Rs.2,500/- to the appellant. Thereafter, the appellant persisted his demand and got the letters written by his wife Mamta (now deceased) and brother Ramakant, but the parents and brothers of the deceased failed to meet the same. For the said reason, the appellant continued to harass his wife. On 25th July, 1989, Mamta, poured kerosene over herself and on her daughter, Ruby aged about 2 years, and set herself ablaze on account of which both of them sustained burn injuries.

3. On the information of Guljari Lal, PW-7, at the outpost of Vikrampur, report was written in Rojnamcha Sanha (Ex.P-33C) by Ravishanker (PW-37). Sarada Makhan Singh (PW-35), Principal of Government Higher Secondary School, Vikrampur, recorded her dying declaration (Ex.P-26). Mamta and her daughter Ruby were sent to Primary Health Centre, Dindori, where they were admitted. Dr. S.K. Khare (PW-11) intimated the concerned police for recording her dying declaration and, therefore, at the request of the concerned police, Mr. C.L. Yadav (PW-8), Naib Tahsildar and Executive Magistrate recorded her dying declaration (Ex.P-6). Subsequently, on 26th July, 1989, at 3.05 a.m., Mamta died and her daughter Ruby also died. Marg Intimation No.0/89 was registered at police station, Dindori, from where it was sent to Police Station Shahpur, where the Marg Intimation No.15/89 under Section 174 of Code of Criminal Procedure, 1973, was registered. After preparing Panchanama of the dead body of Mamta, postmortem examination was conducted by Dr. S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29). The doctors opined that the cause of death was shock as a result of extensive burn. However, Viscera and articles were preserved for further chemical and histopathological examination. The articles were seized and on the basis of inquiry of Marg Intimation, Crime No.81/89 under Section 306 of IPC was registered at Police Station, Shahpur. The statement of witnesses were recorded during the course of investigation and seized articles were forwarded to F.S.L., Sagar, for chemical examination. After completion of the investigation, the charge sheet was filed in the Court of J.M.F.C., Dindori, who committed the case to the Sessions Court for trial.

4. The appellant was charged under Sections 498-A and 304B or in alternative under Section 306 IPC. He denied the guilt and claimed innocence contending that he has not committed any offence. On behalf of the prosecution altogether 37 witnesses were examined and no witnesses were examined on behalf of the defence. After appreciation of the evidence, the trial Court held the appellant guilty under Sections 498-A and 304B IPC and sentenced him with rigorous imprisonment for 3 years under Section 498-A and for rigorous imprisonment for 10 years for the offence punishable under Section 304B. Both the sentences were directed to run concurrently.

5. Mr. Fakhruddin, learned Senior counsel, appearing on behalf of the appellant, mainly placed reliance on the dying declaration of the deceased, which was recorded by Mr. C.L. Yadav, Naib Tahsildar and Executive Magistrate, Dindori. It was contended that it was an accidental death, as accepted by the deceased, Mamta, herself in her dying declaration. It was further contended that the trial court mainly erred in law in discarding the two prompt dying declarations made by the deceased. It was also contented that the trial court failed to appreciate that there was no cogent evidence as to the torture and dowry harassment and that much less harassment was for or in connection with dowry soon before the death. He placed reliance on some of the decisions of this Court, which will be discussed at an appropriate stage.

6. We have heard rival contentions made on behalf of the parties and also perused the record.

7. Mamta died on 26th July, 1989 at 3.05 a.m. The Panchanama of the dead body was prepared and postmortem examination was conducted by Dr. S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29). According to their opinion, the cause of death was shock as a result of extensive burns. The postmortem examination report is Ex.P-14 which contains the signatures of both the autopsy surgeons.

8. It is not in dispute that the appellant married to the deceased, Mamta, in the year 1986 and the death took place on 26th July, 1989. Therefore, the prosecution could prove that the deceased died within 7 years of her marriage and died due to burn injuries.

9. Mamta died on account of extensive burns and keeping in view the evidence of the autopsy report, the question arises as to whether it can be recorded as an accidental death, as contended on behalf of the appellant. But before discussing the said issue it is desirable to notice whether the prosecution had proved all the ingredients beyond reasonable doubt against the appellant to draw the presumption under Section 113B of the Indian Evidence Act, 1872, as to whether the appellant caused dowry death.

10. Section 304 IPC relates to dowry death and reads as follows:

"304B. 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."

11. The basic essentials required to be established u/s 304B IPC are: (i) The death of a woman was caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) Such death have occurred within seven years of her marriage; and (iii) Soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband.

12. Section 113B of the Indian Evidence Act reads as follows:

"113B. 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 has 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."

13. The presumption shall be raised only on the proof of following essentials:

(i) The question before the Court must be whether the accused had committed the dowry death of a woman;

(ii) The woman was subjected to cruelty or harassment by her husband or his relative;

(iii) Such cruelty or harassment was for or in connection with, any demand for dowry; and

(iv) The woman was subjected to cruelty or harassment soon before her death.

14. In this connection, we may refer the decision of this Court in the case of Kaliyaperumal and Anr. Vs. State of Tamil Nadu (AIR 2003 SC 3828) : [2003 ALL MR (Cri) 2398 (S.C.)].

15. Ram Dayal Gupta (PW-23) is the father of the deceased, Mamta. Ravishankar Gupta (PW-7), Badri Prasad Gupta (PW-17) and Purshottam Lal Vaisya (PW-23) are her brothers. They have given evidence that the appellant demanded Rs.15,000/-. Letters were also received demanding Rs.15,000/- from the in-laws of the deceased. They have denied that the appellant demanded such money for doing the business.

16. Ram Dayal Gupta (PW-22) has deposed that Rs.7,000/- was given at the time of marriage but the appellant demanded Rs.15,000/- at the time of 'Bidai'. His daughter used to tell him that the appellant used to demand money. She told the aforesaid facts 3-4 times and lastly 5-6 months before the incident. Due to financial constraints, he failed to meet the demand. His daughter wrote a letter/Article-B to him which was seized by the police. In the cross examination he has stated that he did not lodge the report regarding the demand of dowry because he wanted the relation to be maintained.

17. Ravishankar Gupta (PW-7) had also given evidence that the appellant demanded Rs.15,000/- but he did not provide the same. He also received letter/Article-D written by the brother of the appellant.

18. Badri Prasad Gupta (PW-17) in his statement deposed that the appellant demanded Rs.15,000/-. He also stated that the appellant used to harass his sister and, therefore, he took his sister to Baikunthpur where he was serving. The appellant also reached there. He managed to open a hotel for the appellant but it was closed after 2½ months.

19. Similar was the statement made by Purushottam Lal Vaishya (PW-23) that subsequent to the marriage of his sister he had gone to Vikrampur where the appellant demanded Rs.15,000/-, but he refused. Thereafter, he demanded Rs.3,000/- or Rs.4,000/- but he expressed his inability to give the same. He also stated that his sister used to tell him that the appellant harassed her on account of not giving the dowry.

20. The aforesaid evidences corroborate each other and it is clearly proved that the appellant harassed his wife, deceased Mamta for and in connection with dowry. The appellant harassed the deceased 5-6 months prior to the death of the deceased also justifies the stand taken by the prosecution that the harassment for or in connection with dowry was soon before her death.

21. From the aforesaid evidence on record it is clear that the deceased Mamta died due to burn injuries, the death took place within 7 years of her marriage, she was subjected to cruelty and harassment by her husband, such cruelty and harassment was for and in connection with dowry and such harassment was soon before her death. The prosecution having proved all the essential against the appellant, the presumption under Section 113B of the Indian Evidence Act certainly goes against the appellant.

22. The learned counsel appearing on behalf of the appellant submitted that the death was incidental and, therefore, could not be termed to be a death due to burns caused due to harassment for or in connection with dowry soon before the death. He placed reliance on the dying declaration of Mamta dated 25th July, 1989, when she was admitted in Primary Health Centre, Dindori.

23. The dying declaration (Ex.P-6) was recorded by Mr. C.L. Yadav (PW-8), Naib Tahsildar and Executive Magistrate, Dindori. The certificate that she was fit to give statement was obtained from Dr.S.K. Khare (PW-11). Mr. C.L. Yadav has given his statement that he recorded the dying declaration of the deceased Mamta and she gave her statement and that she remained conscious during the recording of the statement. This witness has also stated that at the time of recording of the statement no other person, except Dr. Khare, was there as all others were sent out.

24. On perusal of the statement of PW-8, it reflects that he has given the evidence before the Court in a very slipshod manner. He had not given the evidence in detail as to what the deceased stated in her dying declaration.

25. The Court also failed in its duty to record the statement of the said witness properly. It is evident that the dying declaration was not recorded in the question and answer form and the members of her in-laws family were there when she was admitted in the Primary Health Centre, Dindori. Therefore, the possibility of her in-laws influencing her in giving her statement could not be ruled out.

26. The trial court and the High Court both ruled that the dying declaration given was not voluntary. The theory of accidental fall of kerosene container due to the act of child and catching of fire had been negatived in view of the evidence of autopsy surgeons Dr. S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29), who have clearly deposed that the smell of kerosene was coming out from the body of the deceased which can only be possible by pouring the kerosene over the body and setting the fire. Dr. R.M. Mishra had clearly opined that it was not the case of accidental fire. Therefore, it is not proved that Mamta gave dying declaration voluntarily. Another dying declaration was recorded on the same date, i.e. 25.7.1989, by Sardar Makhan Singh (PW-35), who was examined as PW-35. He was posted as Principal of Government Higher Secondary School, Vikrampur. He stated that at about 3-4 p.m., the S.H.O. sent a constable to him who narrated the incident and told him that the S.H.O. had invited him to record the statement because he was a gazetted officer. Then he went to the residence of the accused person with the policeman and saw that a woman aged 22-23 years old was lying on the cot. The woman was in burnt condition and was gabbing. A child was lying there, who was also in burnt condition. The child was lying inside the house. He subsequently stated that he did not feel the smell of anything, including kerosene. The said woman told him to teach her daughter properly and he promised that he would teach her properly. When he asked the woman about the said state of affairs, she told him that she was cooking food in the kitchen and the container of oil got overturned on her dress which caught fire.

27. The aforesaid statement was recorded by PW-35, which was signed by two proper witnesses and marked as Ex.P-29. However, the said dying declaration was first recorded by the Principal and then the two witnesses put their signature.

28. In State of Punjab Vs. Parveen Kumar (2005) 9 SCC 769 this Court while dealing with different versions of the incident in the several dying declaration held that such dying declaration may create doubt about their truthfulness. Having noticed that three dying declaration made by the deceased woman, first before her uncle, second before Executive Magistrate and third before Sub Inspector of Police, one contrary to the other, this Court held that the dying declarations being inconsistent with each other as versions disclosed were quite different and as role of the accused was differently described, held that those were not reliable.

29. In the present case, we find that two versions have been recorded in two dying declarations one in which the kerosene container fell on her and the other in which daughter accidentally overturned kerosene container over her, contrary to each other. Therefore both the trial Court and the High Court discarded the dying declarations.

30. Learned counsel appearing for the appellant relied on the decision of State of A.P. Vs. Raj Gopal Asawa and Another (2004) 4 SCC 470 : [2004 ALL MR (Cri) 1469 (S.C.)]. In the said case having noticed the provision of Sections 498A, 304B IPC and Section 113 B of the Evidence Act, this Court held:

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence.

It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."

31. It was contended on behalf of the learned counsel for the appellant that prosecution while succeeded in proving that the woman died due to burns, they failed to prove that the burns was not due to accident and it was otherwise than in normal course. However, such submission cannot be accepted in view of Section 304B IPC, wherein it is stipulated that where the death of a woman is caused by burn or bodily injury or occurs otherwise then under normal circumstances within 7 years of marriage and when it is shown that soon before her death she was subject 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 or such husband or relative should have been deemed to cause her death.

32. The cause of death u/s 304B can be burns or bodily injury which is specified under Section 304B. If death occurs otherwise then normal circumstances it is a third category u/s 304B, which is non-specific unlike burns, or bodily injury, though burn and bodily injuries also comes within the meaning of otherwise then under normal circumstances. Therefore, if one of the essential ingredients is proved that the death of the women is caused by burns, it is not necessary for the prosecution to prove that death occurs otherwise then normal circumstances, as death due to burns comes under otherwise then under normal circumstances. If all the four essential ingredients are proved beyond all reasonable doubt by the prosecution, the presumption under Section 113B will go against the accused, who in his turn may prove that the death of the women was accidental and was not due to harassment of husband or relative of the husband for or in connection with dowry and no such harassment was made soon before the death. In the present case the appellant has failed to prove the same.

33. The prosecution being successful in proving all the essentials of Section 304B of IPC and the appellant having failed to rebut the evidence by placing evidence on record that death was accidental death, we find no ground to interfere with the conviction made by the trial court as affirmed by the High Court. However, taking into consideration the nature and circumstances of the case, while we affirm the conviction of appellant-Srikant, S/o Ram Charan Gupta under Section 498A and 304B IPC and sentence of rigorous imprisonment for 3 years for the offence under Section 498A, as held by trial court and affirmed by High Court, we reduce the sentence to rigorous imprisonment for 7 years for the offence under Section 304B IPC. Both the sentences shall run concurrently. The appeal is dismissed.

34. The appellant be taken to custody to serve the remaining period of sentence and his bail bonds stands cancelled.

Appeal dismissed.