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Tuesday, May 13, 2014

Sec.498 A, 304 B of I.P.C.- A 1-husband acquitted - A 2 sentence was reduced - mitigating circumstances - A1 husband and A2 mother in law - In dying declaration and in her letter , the deceased said that A 1- husband is innocent and further gave credit marks in her letters - Apex court acquitted the husband A1- as far as mother-in-law concerned A2 - she has been demanding for gold chain - Apex court confirmed the one year sentence of imprisonment for sec.498 A and whereas for sec. 304B dispute was taken place on that night between A2 and deceased but not by A1 and so she committed suicide - but not burnt by A 2 - and further more deceased expressed unhappiness in respect of her marriage with A1 which was also one of the cause to commit suicide - Apex court Acquit the A1- husband from sec.304 B and reduced the sentence of A2 from 10 years to 7 years imprisonment and allowed the appeal partly = SATISH CHANDRA & ANR. Vs. STATE OF M.P. 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41506

Sec.498 A, 304 B of I.P.C.-  A 1-husband acquitted - A 2 sentence was reduced - mitigating circumstances - A1 husband and A2 mother in law - In dying declaration and in her letter , the deceased said that A 1- husband is innocent and further gave credit marks in her letters - Apex court acquitted the husband A1- as far as mother-in-law concerned A2 - she has been demanding for gold chain - Apex court confirmed the one year sentence of imprisonment for sec.498 A and whereas for sec. 304B dispute was taken place on that night  between A2 and deceased but not by A1 and so she committed suicide - but not burnt by A 2 - and further more deceased expressed unhappiness in respect of her marriage with A1 which was also one of the cause to commit suicide - Apex court Acquit the A1- husband from sec.304 B and reduced the sentence of A2 from 10 years to 7 years imprisonment and allowed the appeal partly = 

Section 498A IPC reads as under:-
                 “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 purposes of this Section,  '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
           demand.”
            We  find  that  ingredients  of  the  aforesaid  Section  stand
      satisfied qua Appellant No. 2 as deceased was subject to  cruelty  on
      account of unlawful demand  for  property  viz.  gold  chain  in  the
      instant case and failure on her part to meet that demand. So much so,
      it ultimately had driven Sunita to commit suicide.
      33.   In so far as Appellant No. 1 is concerned it  is  difficult  to
      sustain his conviction  under  Section  498A.  The  deceased  in  her
      statement has accused only her mother-in-law  and  sister-in-law  for
      this demand. She has not blamed her husband at all. On the  contrary,
      she has categorically stated that her husband is innocent. May be  at
      times Appellant No. 1 had beaten his wife on the saying of her mother-
      in-law but the deceased had not connected this with demand of  dowry.
      Therefore, it is not conclusively proved that there was any “cruelty”
      on his part. Here, reading the statement of the deceased  along  with
      various letters becomes somewhat important. Tenor of  those  letters,
      in so far as they relate to Appellant No. 1, indicates that as far as
      Appellant No. 1 is concerned, he is not to be  blamed.  In  fact,  in
      order to please and satisfy his wife, Appellant No. 1 was making  all
      efforts to become something in life and was struggling for  that.  We
      thus, are persuaded to give benefit of doubt to Appellant No.  1  for
      change under Section 498A.  As  a  consequence  while  upholding  the
      conviction of Appellant No. 2 under Section 498A of  IPC,  we  acquit
      Appellant No. 1 from this charge.
      34.   With this, we come to the question of conviction under  Section
      304B of IPC. It is couched in the following language:-
      “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.
      Explanation. - For the purposes 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.

    35.   Undoubtedly, death  of  Sunita  is  caused  by  burns  and  has
      occurred otherwise than under normal circumstances. It  has  happened
      within 7 years of  her  marriage.  Further,  the  trigger  point  for
      committing suicide was the quarrel between her and her  mother-in-law
      on the fateful day. At the same time it is also to be borne  in  mind
      that it is not a case where appellants have poured kerosene  and  put
      her on fire. That is the act of deceased herself and  thus  it  is  a
      case of suicide. 
The question is  whether  the  quarrel  between  the
      deceased and her mother-in-law  can  be  treated  as  satisfying  the
      condition that “soon before her death she was subjected to cruelty or
      harassment for, or in connection with, in demand for dowry”.  
On  the
      reading the statement in  totality,  it  becomes  clear  that  cause/
      reason for regular fights was dowry. One can clearly  find  out  from
      the statement that on that day also Appellant No. 2 fought  with  her
      for that reason. We are, therefore, of the opinion that commission of
      offence  under  Section  304B  against   Appellant   No.   2   stands
      conclusively proved in view of  iron  clad  dying  declaration.  
Here
      again, for the reason stated by us while  discussing  the  accusation
      against Appellant No. 1 under Section 498A of IPC, it cannot be  said
      that he had committed any act of  “cruelty”  soon  before  her  death
      which forced the deceased to take such a step. 
She has nowhere stated
      that on that date when her  mother-in-law  had  quarreled  with  her,
      Appellant No. 1 was associated or even responsible for that. We  thus
      acquit Appellant No. 1 of charge under Section 304B as well.
      36.   Coming to the sentence of Appellant No. 2  in  respect  of  the
      aforesaid offences, we maintain the sentence  of  one  year  rigorous
      imprisonment (R.I.) for offence under Section 498A of  IPC.  
However,
      in so far as Section 304B of IPC is concerned we are of  the  opinion
      that there are certain extenuating and mitigating circumstances which
      persuade us to reduce the sentence of 10 years  R.I.  as  awarded  to
      Appellant No. 2. First of all,  even  when  the  immediate  cause  to
      commit suicide was the fight, at the same time it has to be  kept  in
      mind that deceased was not happy with her matrimonial life for  other
      reasons as well. In fact, she was not happy with this marriage at all
      which she stated in some of the letters to her mausi  or  mausa.   We
      are of the view that ends of justice would be sub served by  reducing
      the sentence from 10 years to  7  years  Rigorous  Imprisonment.  The
      appeals are partly allowed in the  aforesaid  terms.   The  Appellant
      no.2 shall be taken into custody to serve remaining sentence.

2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41506
SUDHANSU JYOTI MUKHOPADHAYA, A.K. SIKRI

                                                                  REPORTABLE


                       IN THE SUPREME  COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 211 OF 2010




      Satish Chandra & Anr.                  ….........Appellant(s)




                                   Versus


      State of M.P.                                ….........Respondent(s)




                               J U D G M E N T


      A.K. SIKRI, J.


     1. The two appellants before us are the son and the mother.  Appellant
        No. 1 was the husband and Appellant No. 2  was  the  mother-in-law,
        respectively,  of  the  deceased  Smt.  Sunita.  Marriage   between
        Appellant No. 1 and Smt. Sunita was solemnised in April, 1988. Smt.
        Sunita committed suicide on 14.1.1991 i.e. within  three  years  of
        the marriage. This led to the prosecution of the two appellants  as
        well as father and sister of Appellant No. 1 under  Sections  304-B
        and 498-A of Indian Penal Code (IPC).
     2. We may mention that as per the prosecution, just before her  death,
        she even gave a statement which was recorded as Ex. P.9. After  her
        death, it was treated as dying declaration and case was  registered
        against  the  accused  persons.  After  the   completion   of   the
        investigation they were all committed to their trial.  The  accused
        persons did not admit to the charge and abjured their guilt. As per
        them  they  were  falsely  implicated  in  the  matter.  The  trial
        proceeded. Various prosecution  witnesses  were  examined.  On  the
        basis of the oral and documentary evidence brought on  record,  the
        Sessions Court returned the verdict of guilty  qua  the  appellants
        herein, as well as sister of Appellant no.1.
     3. The Trial Court sentenced both the appellants as  well  as  Sunita,
        sister of Appellant no.1 to undergo one year rigorous  imprisonment
        (R.I.) for offence under Section 498 A of IPC. A fine of Rs. 1,000/-
         on each of the appellants was also  imposed  and  in  default  the
        appellants were to undergo an additional R.I. for six  months.  For
        offence under Section 304-B, both the appellants were sentenced  to
        10 years rigorous  imprisonment  with  Rs.  1,000/-  as  fine  with
        similar default clause.
     4. The appellants filed the appeal before the High Court  against  the
        said conviction  and  sentence.  By  the  impugned  judgment  dated
        21.10.2008 the High  Court  of  Madhya  Pradesh  has  affirmed  the
        conviction and sentence, thereby dismissing the  appeal  qua  these
        two Appellants. However, Sunita has been acquitted.  Special  Leave
        Petition was filed questioning the validity of the said verdict  of
        the High Court in which leave was granted. This is how the  present
        appeal has been heard finally by this Court.
     5. A perusal of the judgment of the High Court would demonstrate  that
        the High Court has primarily  relied  upon  the  dying  declaration
        (Exhibit P9) which according to the High Court  is  a  strong  iron
        clad testimony from the clutches of  which  the  appellants  cannot
        escape. It has found that the said dying declaration is  worthy  of
        credence which was recorded  in  the  presence  of  the  Magistrate
        (P.W.2) that too with certification from the Doctor (P.W.5) to  the
        effect that Sunita  was  in  a  fit  state  of  mind  to  give  the
        statement, notwithstanding  the  fact  that  she  has  suffered  92
        percent burns. In so far as charge under Section 498A is concerned,
        the High Court has found that this was proved on the basis  of  Ex.
        P8, which was a letter written by  the  deceased  stating  she  was
        being treated with cruelty. The High Court also recorded  that  the
        dying declaration as well as allegations in letter (Ex.  P.8)  were
        duly supported by the testimony of the father (P.W.1), the  brother
        (P.W.7) and the uncle (P.W.4) of the deceased. It is observed  that
        even when they are interested witnesses being close relation of the
        deceased, there was no reason to discard their testimony. More  so,
        when their testimony was  supported  by  written  documents  namely
        letters written by the deceased which were Exhibit P1, P3,  P4  and
        P5.
     6. Mr. Sushil Kumar Jain, learned Senior  Counsel  appearing  for  the
        appellants  endeavoured to find loopholes  in  the  depositions  of
        various  witnesses.  Thrust  of  his  argument   was   that   their
        testimonies could not have been relied upon to record the guilt  of
        the appellants for both the charges i.e. under Section 498A as well
        as 304B of I.P.C. In this attempt, he referred to various  portions
        of the testimonies of these witnesses with the purpose to show that
        there was an acceptance on their part that no dowry  was  taken  at
        the time of Marriage; there was no demand of dowry even  thereafter
        and the deceased was not treated with cruelty at all.  His  further
        endeavour was to show  that  the  deceased  had  committed  suicide
        because of her own reasons and  frustrations  which  could  not  be
        attributed to the appellants and for which appellants could not  be
        held responsible in any manner in as much as she was not happy with
        her marriage with Appellant No. 1. which was her creation  with  no
        blemish on the part of the appellants. Before we take note of these
        arguments in detail and deal with them, it  would  be  apposite  to
        take note of the testimonies  of  material  witnesses  as  well  as
        documentary evidence produced. It is only thereafter the  arguments
        of Mr. Jain would be better discernible  and  appreciated  for  our
        analysis/ discussion.
     7. As per Rameshwar Dayal (P.W.1), whenever his daughter  Sunita  used
        to come to  Guna  she  would  say  that  her  parents  in  law  had
        persistent demand for gold chain. In the month of  Shravan  in  the
        year 1989, they had come to Jaora to take  the  daughter  then  her
        mother-in-law had beaten her in his presence. Rameshwar  Dayal  has
        also said that it was guessed from the letters of the girl that her
        husband and parents in law were harassing her.
     8. Ashok Sharma (PW. 7) stated that he was sent a letter  Ex.  P.5  by
        his sister to him. Rameshwar Dayal has also stated letters Ex.  P.3
        and P4 to have been written by Sunita.  It  is  revealed  from  the
        statement of Ashok Sharma that Sunita had  told  him  in  Guna  and
        Sagar that in laws had demanded gold chain and money. Also, she was
        troubled in her in-laws house. Ashok Sharma had  met  Sunita  about
        one and half months before death when she had gone to Sagar.
     9. Ram Behari Lal Sharma (P.W.4) is the mousa of  deceased  Sunita.The
        police had prepared the map of  the  place  of  occurrence  in  his
        presence. The police had seized letters Ex. P3, P4 and P5 from  Ram
        Behali Lal Sharma. Ram Behari Lal Sharma had got the information of
        burning of Sunita when he was in school. Thereupon, he reached  the
        spot and later on he had gone to Sunita in the Hospital.
    10. Naib Tehsildar SPS Chauhan (P.W.2) had recorded the statement  (Ex.
        P.9) of Sunita, before her  death.  This  witness  has  proved  the
        statement from  B  to  B  in  Ex.  P.9  by  Sunita.  Before  taking
        statement, the certificate of the doctor was taken. Dr.  S.K.  Jain
        (PW. 5) had examined Sunita and had advised to take her  statement.
        Report relating to it is  Ex.  P.15.  After  death  Dr.  Chandelkar
        (P.W.6) had performed postmortem of Sunita. Dr. Jain has  mentioned
        about the smell of kerosene from Sunita's body  and  that  she  had
        suffered 92% burns. As per him, the cause of death is the  burning,
        flowing of water from the body and the state of shock arising  from
        loss of chemicals. Dr. Chandelkar has also mentioned about kerosene
        smell from the body. The postmortem report  given  by  him  is  Ex.
        P.16.
    11. The defence side produced one witness viz. Pravin Dixit, brother-in-
        law of Appellant No. 1 who is the husband of his sister Sunita.
    12. Perusal of the judgment of the  Trial  Court  shows  that  detailed
        submissions   were   made   by   the   defence   questioning    the
        trustworthiness  of  the  prosecution  case.  It  was  argued  that
        deceased was not treated with cruelty, much less on the  ground  of
        dowry. The defence also  attacked  the  dying  declaration  of  the
        deceased – Sunita, on    the plea that it was unreliable because of
        many loopholes therein. The Trial Court stated that there were  two
        decisive questions which were to be determined and they were:
           “(i)  Whether the accused  used  to  behave  with  cruelty  with
           Sunita wife of Satish Chandra  Trivedi  for  illegal  object  of
           getting more dowry.
           (ii)  Whether the  accused  tortured  Sunita  on  the  night  of
           14.1.1991 in fulfilment of the illegal object  of  getting  more
           dowry and Sunita died  in  the  manner  different  from  natural
           death?”




      13.   While answering the aforesaid questions, apart from relying  on
      oral testimonies of the witnesses, the trial court referred to Ex. P-
      3, which is a letter written by Sunita to her  aunt  (Mausi)  stating
      that she would do nothing except but to give up her life. Mention was
      also made to Ex. P-8 which Satish had written to his father-in-law as
      well as Ex. P-1 which was a letter written by deceased Sunita to  her
      parents 15 days before her death, mentioning that there was no change
      in the atmosphere and she was not happy  in  her  matrimonial  house.
      From these letters coupled with oral  testimonies,  the  Trial  Court
      concluded that there was a demand  of  dowry  because  of  which  the
      deceased was harassed.


    14. The Trial Court also discussed Ex. P-9, namely, the dying statement
        and returned the finding that since the statement  was  taken  only
        after certifying the state of health of Sunita by the  doctor  that
        she was in a proper state of mind to make  such  a  statement.  The
        Trial Court also discarded the theory of the  defence  that  Sunita
        was tutored by her Mausa in giving the statement. From the  reading
        of this dying statement, the trial court  came  to  the  conclusion
        that there was in fact a quarrel which took place on  the  date  of
        occurrence immediately before she put herself on fire. On the basis
        of such discussion, the Trial Court returned  the  verdict  of  the
        guilty against the appellants and sister of Appellant no.1  in  the
        manner mentioned in the beginning of this judgment.
      15.   The High Court went through the gamut of  all  the  issues  and
      upheld the judgment qua these two appellants recording the  following
      reasons:
           “(i)  On considering the above submissions, I find that there is
           no merit in the appeal, primarily, on the  ground  that  because
           evidence of the prosecution is supported and corroborated by the
           documentary evidence available on record, the dying  declaration
           Ex. - P/9 is a strong iron clad testimony from the  clutches  of
           which the accused cannot escape. Ex. P/9 is recorded and  proved
           in accordance with law. Dr. S.K. Jain PW-5  has  certified  that
           although deceased Sunita had recorded 92% burn, she was in a fit
           state of mind. The dying declaration of the  deceased  has  been
           recorded in presence of the Magistrate Shri S.P.S. Chauhan  PW-2
           and no fault can be found  in  the  same.  The  letter  Ex.  P/8
           available on record also amply  proved  that  the  deceased  was
           being treated with cruelty.


           (ii)  It would be profitable to rely  on  the  decision  of  the
           Supreme Court in the matter of Muthu Kutty and another v.  State
           of T.N. (2005) 9 SCC 113 whereby the Apex Court  has  held  that
           conviction  can  be  accorded  solely  on  the  basis  of  dying
           declaration, if it is  worthy  and  reliable  and  there  is  no
           infirmity  in  it  reinforcing   the   maxim   'Nemo   Moriturus
           praesumitur', which means that a person will not meet his  maker
           with a lie in his mouth.


           (iii) Then, in this light it is important to consider  the  fact
           that the dying declaration is duly supported by the testimony of
           Rameshwar Dayal PW-1; Ashok Sharma PW-7 and Rambiharilal  Sharma
           P4-4 the father, the brother  and  uncle  of  the  deceased  and
           although they are interested  witnesses  being  related  to  the
           deceased. It is only natural  in  the  circumstances  since  the
           offence under Section 498-A pertains to cruelty being meted  out
           to the deceased soon before her  death  and  she  was  bound  to
           report the same to these persons only. Besides  their  testimony
           is duly supported by written documents, letters Ex. P1,  P3,  P4
           and P5 by the deceased Sunita. The fact that Rameshwar Dayal PW-
           1 has stated in his deposition that accused Sohanbai had slapped
           his daughter in his presence is corroborated by letter Ex. P5 to
           the brother that she (deceased Sunita) was aboused in  front  of
           her father who had watched helplessly and  the  situation  could
           never be rectified.”


      16.   However, in so far as sister of Appellant No. 1  is  concerned,
      benefit of doubt was given as after the marriage she had been  living
      separately at Indore.


      17.   We now proceed to take note of the detailed submissions  of  Mr.
      Jain,  learned  Senior  Counsel  for  the  appellants.  He  began  his
      submission by arguing that at the time of marriage the father  of  the
      deceased did not consider the fact that Appellant No.  1  was  not  in
      service. He was under the wrong impression that  boy's  father  was  a
      wealthy person and his daughter would  be  happy  in  the  matrimonial
      house even if Appellant No. 1  was  earning  his  livelihood  only  by
      running a  small  shop  i.e.  namkeen  selling  business.  He  further
      submitted that there  was  no  question  of  demanding  any  dowry  as
      marriage between the parties was a part of group  marriage  solemnised
      on that day.
      18.   According to him, reading of the letters as well as  testimonies
      of the prosecution witnesses would bring out that the real problem was
      the unemployment of Appellant No. 1 which became the  villain  of  the
      peace. Thus, he tried to weave the story in his  own  way,  presenting
      the events in the following manner:-
           Appellant No. 1 was continuing his studies (he  was  doing  LLB)
           which is clear from the letter dated 29.1.1998  written  by  the
           brother of the deceased. In this letter Shri Ashok,  brother  of
           the deceased also wrote that deceased was kept  with  affection.
           The deceased Sunita  was  a  graduate.  She  did  not  like  the
           business of Namkeen being run by Appellant  No.  1  in  a  small
           shop. She forced Appellant No. 1 to close the said business. The
           fact that the said business was closed at the  instance  of  the
           deceased and/or her brother  is  clear  from  the  letter  dated
           29.1.1989 written by Ashok Kumar  Sharma,  the  brother  of  the
           deceased to Appellant No. 1's family, wherein he wrote:-
      “Ch. Satish ji how your business is going on. You had  told  to  close
      the shop. How it is going on? LL.B result  would  have  not  been  out
      yet.”
            In another letter dated 22.9.1989  the  deceased  brother  Ashok
      Kumar Sharma had written to the deceased -
           “How the shop is functioning. The shop must have been closed.”
           After closing of the shop, Appellant No. 1 and the deceased, who
      was a graduate, took job as teachers in private school as  is  evident
      from the statement of Rameshwar Dayal Sharma P.W.1, the father of  the
      deceased, himself. Further at the instance of the deceased,  Appellant
      No. 1 started living separately from his parents. This was done at the
      advice of the deceased brother Ashok Kumar Sharma,  who  has  admitted
      this in his statement.
           The deceased lost her job. This is evident from Ex. D-6  wherein
      P.W. 7 Ashok Kumar Sharma, brother of deceased  had  asked  Sunita  to
      prepare a certificate of domicile of any district  of  Madhya  Pradesh
      and send the same to him. Mr. Jain argued that this letter also  shows
      that deceased's brother  was  also  trying  to  find  a  job  for  the
      deceased. On account of losing the job by the deceased, Appellant  No.
      1 and the deceased trapped in a  financial  crisis.  With  the  meager
      income as primary school teacher in private school, it  was  difficult
      for Appellant No. 1 to carry on the family. On  account  of  financial
      crisis Appellant No. 1 again came back to his parents, as  is  evident
      from the testimony of P.W.1 Rameshwar  Dayal  Sharma,  father  of  the
      deceased. He thus, argued that it is this financial crisis  which  led
      the deceased go into depression. Otherwise, various letters written by
      the relatives show their cordial relations.
      19.   Coming specifically to  charge  under  Section  498A  of  I.P.C.
      namely that of harassment, Mr. Jain submitted that even P.W.1  in  his
      cross-examination had stated:
                 “11.  Ex. P-8 letter was written by  my  son-in-law  Satish
           Chandra before the death of my daughter. It is correct  that  my
           daughter Sunita did not make any complaint to me with regard  to
           the behaviour of her husband i.e. accused Satish  or  any  other
           complainant whatsoever.”
                 P.W.7  Ashok Kumar Sharma, brother of the  deceased  Sunita
           also admitted:
                 “6........My sister never told or complained me  about  her
           husband i.e, accused Satish Chandra that he ever tortured her or
           ever demanded dowry or torment her. She has certainly said  that
           her husband does not say anything when  her  mother-in-law  does
           such things.”
            Mr. Jain submitted that in view of the aforesaid  statements  of
      none else than the father and brother of the deceased, the  conviction
      of Appellant No. 1 under Section 498A and thereby under Section  304-B
      I.P.C. is ex-facie untenable.
            For this he placed reliance on the judgment of this Court in the
      case of Satkar Singh and Ors. v. State of Haryana reported  in  (2004)
      11 SCC 291 wherein it is, inter alia, held:-
                 “23.  It is based on these  erroneous  inference  drawn  on
           unproved facts and placing reliance on statements of  interested
           witnesses whose evidence  has  not  stood  the  test  of  cross-
           examination, the trial court came to a wrong  conclusion  as  to
           the guilt of the accused persons. It  is  to  be  noted  that  3
           letters, Exts. P-28, DA and DB which though not  very  proximate
           in time clearly show that  there  was  no  demand  as  has  been
           alleged by the prosecution by the accused and  the  contents  of
           the said letter clearly show that the allegation made after  the
           death of Devinder Kaur of dowry demand or harassment leading  to
           cruelty is unsubstantiated. For all these reasons we are of  the
           opinion that the trial Court committee serious error  in  coming
           to the conclusion that the prosecution had established its  case
           against the appellants.”


      20.   It was argued by Mr. Jain that the learned Trial Court  has  not
      found Appellant No. 1 ever made any demand of dowry.  The  High  Court
      has further acquitted  Sunita  (sister)  and,  therefore,  so  far  as
      Appellant No. 1 (husband) is concerned, neither there is any  evidence
      nor any finding by the learned trial court or the High Court  that  he
      ever demanded dowry. In the absence of any  evidence  with  regard  to
      dowry, the conviction of Appellant No. 1 (husband) under  Section  304
      (B) IPC is ex-facie untenable in  as  much  as  Section  304  (B)  IPC
      envisages “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.”
      21.   Questioning the veracity of  the  dying  declaration,  Mr.  Jain
      argued that it was tutored one in as much as the same was recorded  in
      the presence of family members of the deceased and when Appellant  No.
      2 was sitting outside. More over, in this very statement the  deceased
      had stated about Appellant No. 1 that “he is innocent”. He also argued
      that this dying declaration was not recorded in a proper manner namely
      in the form of questions and answers.
      22.   Mr. Jain concluded his submission by arguing that the  aforesaid
      facts amply prove that this is not a case of demand of dowry but is  a
      case where on account of family circumstances  the  deceased  did  not
      adjust herself and placed herself  in  a  situation  where  first  she
      forced her husband to  close  his  business  of  Namkeen,  forced  her
      husband to separate from his parents and to take up a job in a private
      school and she also joined service in a private school. On account  of
      the fact that when the deceased became unemployed and it was difficult
      for the couple to  bear  the  expenses,  this  resulted  in  financial
      problem and forced the Appellant No. 1 to go  back  to  the  house  of
      parents, which he left before marriage of his sister. In  the  present
      matter it is also borne out from the record that the deceased tried to
      take  away  all  the  ornaments  of  the  family  resulting  in   some
      altercation between Appellant No. 2 and the  deceased  which  was  the
      solitary incident where allegation of physical assault  was  made.  He
      submitted that under the circumstances no case under Section 498A   or
      304-B was made out. He  referred  to  the  decision  in  the  case  of
      Mahendra Singh reported in 1005 Supp. (3) SCC 371  wherein  the  Court
      has observed as under:-
                 “Abetment has been defined in Section 107 IPC to mean  that
           a person abets the doing of a thing who firstly  instigates  any
           person to do a thing, or secondly,  engages  with  one  or  more
           persons in any conspiracy for the doing of that thing, if an act
           or illegal omission takes place in pursuance of that conspiracy,
           and  in  order  to  the  doing  of  that  thing,   or   thirdly,
           intentionally aids, by any act or illegal omission, the doing of
           that thing. Neither of the ingredients  of  abetment  are  under
           Section 306 IPC merely on the allegation of  harassment  to  the
           deceased is  not  sustainable.  The  appellants  deserve  to  be
           acquitted of the charge.”


      23.   He also drew sustenance from another judgment  of  the  case  of
      Kishori Lal vs. State of M.P. reported in 2007 (10) SCC 797  observing
      as under:
           “7.   In cases of alleged abetment  of  suicide  there  must  be
           proof of direct or indirect acts of incitement to the commission
           of suicide. The mere fact that the husband treated the  deceased
           wife with cruelty is not enough. Merely  on  the  allegation  of
           harassment conviction  in  terms  of  Section  306  IPC  is  not
           sustainable. There is ample evidence on record that the deceased
           was disturbed because she had not given birth to any child.  Pws
           8, 10  and 11 have categorically stated that  the  deceased  was
           disappointed due to the said fact that her failure  to  beget  a
           child and she was upset due to this.”
           If the background facts analysed it is crystal  clear  that  the
           prosecution has failed to establish its case. That being so, the
           appeal deserves to be allowed, which we direct.”


      24.   The learned Counsel  for  the  State,  countered  the  aforesaid
      submissions by arguing that there was clinching evidence against  both
      the appellants, thereby proving the charges of commission of  offences
      under Sections 304 B and 498 A of I.P.C., beyond any reasonable doubt.
      He referred to the testimony of P.W.1, P.W.3 and P.W.7 in  support  of
      the charges of demand of dowry and harassment on that account. He also
      read out from the letters Exhibits P1, P3, P4 and P5 of  the  deceased
      and her relatives, which according to him, proved  that  the  deceased
      was living in a miserable condition because of  the  harassment  meted
      out at her at the hands of the appellants.  He further submitted  that
      there was no  reason  to  disbelieve  the  dying  declaration  of  the
      deceased which was rightly acted upon by the  Courts  below.  He  also
      referred to the reasons advanced by the Trial Court as  well  as  High
      Court in holding the appellants guilty of the aforesaid  offences.  He
      further submitted that the truthfulness of the  aforesaid  prosecution
      witnesses namely P.W.1, P.W.3 and P.W.7 could be gauged from the  fact
      that they never  indulged  in  over  stating  the  events  and  fairly
      accepted some of the suggestions put  forth  in  cross-examination  to
      them truthfully. His submission was that the entire statement of these
      witnesses was to be read to arrive at  correct  conclusion  which  was
      done by the Courts below.


      25.   We have given our due consideration to the aforesaid submissions
      of the Counsel for the parties with reference to the record. It is now
      time to have analytical critique of these submissions to find  out  as
      to whether the conviction and sentence as recorded by the Trial  Court
      and affirmed by the High Court for these appellants is sustainable  or
      not.
      26.   There is no dispute about the fact that  Smt.  Sunita  committed
      suicide on 14.1.1991 by  pouring  kerosene  on  her  person  and  then
      putting herself on fire. Marriage between her and Appellant No. 1  was
      solemnised sometime in April 1988. Thus, this  incident  had  occurred
      within a period of 3 years from the date  of  marriage.  Since  it  is
      within 7 years of the marriage, presumption under Section     304 B of
      I.P.C. will stand attracted if the ingredients of the said Section are
      established.
      27.   In the statement, the deceased had given the description of the
      incident namely the manner in which she committed  suicide.  She  has
      also given the reason for  taking  such  a  step  and  described  the
      behaviour of her in laws towards her. There is a specific  allegation
      that her mother-in-law (Appellant No. 2) and  Sister-in-law  used  to
      tease her on the ground that her parents had not given gold chain and
      they used to fight on account of dowry. This fact was  known  to  her
      father. She had stated that she was putting an end  to  her  life  on
      account of continuous fight. She has also  stated  that  her  husband
      (Appellant No. 1) has come under the influence of  her  mother-in-law
      because of which he would beat her up, but otherwise he was innocent.


      28.   In view of the above disclosure in the said dying  declaration,
      according to us starting point should be  to  decide  as  to  whether
      deceased had made such a statement and it is believable or not.
      29.   The said statement is recorded  by  the  Executive  Magistrate,
      Jawra. As per this document  at  the  time  when  the  statement  was
      recorded,  no  police  officer  was  present.  Before  the  Executive
      Magistrate started recording the statement of Sunita, Dr.  S.K.  Jain
      certified that she was fully conscious and was in a position to  give
      her statement. It  is  again  testified  by  the  doctor  that  while
      recording of her statement, she remained fully conscious.  Primarily,
      two objections are raised questioning  the  veracity  of  this  dying
      declaration. It is stated that Sunita was tutored before she made the
      statement as it was made in the presence of the family members of the
      deceased and Appellant No.  2  was  made  to  sit  outside  when  the
      statement was being recorded. Secondly, it is  not  recorded  in  the
      form of questions and answers. On the facts of this case  both  these
      contentions are to be  rejected.  It  is  clear  that  the  Executive
      Magistrate took due precautions and  even  obtained  the  certificate
      about the state of health of Sunita before recording  her  statement.
      He has entered the witness box as P.W.2 and deposed to  this  effect.
      There is nothing on record which would indicate that Sunita may  have
      been tutored by her Mausa. Nothing could be pointed out to show  that
      after reaching hospital, she had occasion to meet her  Mausa  and  he
      got an opportunity to tutor her. It is also to be borne in mind  that
      in some of her letters written to her relatives prior to the date  of
      occurrence, she had categorically stated that she was not happy  with
      her matrimonial life and may put end to same. There  is  a  different
      slant which is sought to be given by the defence, to  these  letters.
      We will revert to that aspect  at  the  appropriate  stage.  At  this
      juncture we are only highlighting that Sunita was not happy with  her
      matrimonial life and she had expressed so  on  earlier  occasions  as
      well. This fact has  now  surfaced  in  her  statement.  It  is  also
      pertinent to point out that she has primarily blamed  her  mother-in-
      law and sister-in-law. There is no accusation against her husband  to
      the effect that he was also demanding dowry.  She  is  forthright  in
      stating that whatever her husband did was under the influence of  her
      mother-in-law, and he was even beating her  occasionally.  Otherwise,
      she has categorically stated that her husband is innocent. Had  there
      been any tutoring, it would not  have  come  in  such  a  form  which
      appears to be more natural and voluntary. For all these reasons we do
      not agree with the contention of Mr. Jain  that  Sunita  was  tutored
      before she made the statement.
      30.   Simply because the statement is not recorded  in  the  form  of
      questions and answers, is  no  reason  to  discard  it  once.  It  is
      otherwise found to be trustworthy and can be  treated  as  the  dying
      declaration admissible under Section  32  of  the  Evidence  Act.  No
      doubt, it is emphasised by  this  Court  that  recording  of  such  a
      statement in the form of question  and  answer  is  more  appropriate
      method which should generally be resorted to. However, that would not
      mean that if such a statement otherwise meets all the requirements of
      Section 32 and is found to  be  worthy  of  credence,  it  is  to  be
      rejected only on the ground that it was not recorded in the  form  of
      questions and answers.  As  pointed  out  above,  all  the  requisite
      precautions  were  taken  before  recording  the  statement  by   the
      Executive Magistrate (P.W.2). It  has  come  on  record  that  Sunita
      remained conscious even after concluding her statement and during the
      period when her statement was being  recorded,  Certificate  to  this
      effect was also obtained by P.W.2.
      31.   Having held that the aforesaid statement of  the  deceased  was
      rightly accepted as admissible under Section 32 of the  Evidence  Act
      treating the same as the dying declaration,  we  proceed  further  to
      find out as to whether conviction of  the  appellants  under  Section
      498A and 304B of IPC is rightly recorded by the  Courts  below.  From
      the tenor of the letters, reference to which have  been  made  above,
      there may be a possibility that  deceased  was  not  happy  with  her
      matrimonial life also because of  the reason that her husband was not
      well off and settled in life. Possibility also cannot  be  ruled  out
      that she was not happy with the small business of Namkeen  which  was
      being carried on  by  Appellant  No.  1  in  a  small  shop  and  her
      aspirations were much higher. She made him wind up that business  and
      both of them viz. the husband and the  deceased  had  started  joined
      service as teachers in a private school. Later she even lost that job
      of hers. But the question is as to whether this was  the  reason  for
      her to commit suicide?  This question  has  to  be  answered  in  the
      negative  having  regard  to  her  statement  made   in   the   dying
      declaration. She has very categorically stated that her mother-in-law
      used to fight with her regularly on account of demand of  gold  chain
      which her parents could not fulfill. She had fight on that  day  also
      and being tired of such regular fights she poured kerosene oil on her
      and set herself on fire. It is thus, clear that  immediate  cause  of
      committing suicide was regular fights with mother-in-law  on  account
      of  dowry  demand.  It,  thus,  stands  established  that  there  was
      continuous dowry demand by Appellant  No.  2,  mother-in-law  of  the
      deceased and Appellant No. 2 was even treating her with  cruelty  for
      not fulfilling this demand.
      32.   Section 498A IPC reads as under:-
                 “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 purposes of this Section,  '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
           demand.”
            We  find  that  ingredients  of  the  aforesaid  Section  stand
      satisfied qua Appellant No. 2 as deceased was subject to  cruelty  on
      account of unlawful demand  for  property  viz.  gold  chain  in  the
      instant case and failure on her part to meet that demand. So much so,
      it ultimately had driven Sunita to commit suicide.
      33.   In so far as Appellant No. 1 is concerned it  is  difficult  to
      sustain his conviction  under  Section  498A.  The  deceased  in  her
      statement has accused only her mother-in-law  and  sister-in-law  for
      this demand. She has not blamed her husband at all. On the  contrary,
      she has categorically stated that her husband is innocent. May be  at
      times Appellant No. 1 had beaten his wife on the saying of her mother-
      in-law but the deceased had not connected this with demand of  dowry.
      Therefore, it is not conclusively proved that there was any “cruelty”
      on his part. Here, reading the statement of the deceased  along  with
      various letters becomes somewhat important. Tenor of  those  letters,
      in so far as they relate to Appellant No. 1, indicates that as far as
      Appellant No. 1 is concerned, he is not to be  blamed.  In  fact,  in
      order to please and satisfy his wife, Appellant No. 1 was making  all
      efforts to become something in life and was struggling for  that.  We
      thus, are persuaded to give benefit of doubt to Appellant No.  1  for
      change under Section 498A.  As  a  consequence  while  upholding  the
      conviction of Appellant No. 2 under Section 498A of  IPC,  we  acquit
      Appellant No. 1 from this charge.
      34.   With this, we come to the question of conviction under  Section
      304B of IPC. It is couched in the following language:-
      “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.
      Explanation. - For the purposes 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.




      35.   Undoubtedly, death  of  Sunita  is  caused  by  burns  and  has
      occurred otherwise than under normal circumstances. It  has  happened
      within 7 years of  her  marriage.  Further,  the  trigger  point  for
      committing suicide was the quarrel between her and her  mother-in-law
      on the fateful day. At the same time it is also to be borne  in  mind
      that it is not a case where appellants have poured kerosene  and  put
      her on fire. That is the act of deceased herself and  thus  it  is  a
      case of suicide. The question is  whether  the  quarrel  between  the
      deceased and her mother-in-law  can  be  treated  as  satisfying  the
      condition that “soon before her death she was subjected to cruelty or
      harassment for, or in connection with, in demand for dowry”.  On  the
      reading the statement in  totality,  it  becomes  clear  that  cause/
      reason for regular fights was dowry. One can clearly  find  out  from
      the statement that on that day also Appellant No. 2 fought  with  her
      for that reason. We are, therefore, of the opinion that commission of
      offence  under  Section  304B  against   Appellant   No.   2   stands
      conclusively proved in view of  iron  clad  dying  declaration.  Here
      again, for the reason stated by us while  discussing  the  accusation
      against Appellant No. 1 under Section 498A of IPC, it cannot be  said
      that he had committed any act of  “cruelty”  soon  before  her  death
      which forced the deceased to take such a step. She has nowhere stated
      that on that date when her  mother-in-law  had  quarreled  with  her,
      Appellant No. 1 was associated or even responsible for that. We  thus
      acquit Appellant No. 1 of charge under Section 304B as well.
      36.   Coming to the sentence of Appellant No. 2  in  respect  of  the
      aforesaid offences, we maintain the sentence  of  one  year  rigorous
      imprisonment (R.I.) for offence under Section 498A of  IPC.  However,
      in so far as Section 304B of IPC is concerned we are of  the  opinion
      that there are certain extenuating and mitigating circumstances which
      persuade us to reduce the sentence of 10 years  R.I.  as  awarded  to
      Appellant No. 2. First of all,  even  when  the  immediate  cause  to
      commit suicide was the fight, at the same time it has to be  kept  in
      mind that deceased was not happy with her matrimonial life for  other
      reasons as well. In fact, she was not happy with this marriage at all
      which she stated in some of the letters to her mausi  or  mausa.   We
      are of the view that ends of justice would be sub served by  reducing
      the sentence from 10 years to  7  years  Rigorous  Imprisonment.  The
      appeals are partly allowed in the  aforesaid  terms.   The  Appellant
      no.2 shall be taken into custody to serve remaining sentence.


                    ......................................................J.
                                               [SUDHANSU JYOTI MUKHOPADHAYA]








                       ...................................................J.
                                                                [A.K. SIKRI]




      New Delhi
      May 6, 2014


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