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Friday, July 25, 2014

Sec.498 A, 304 B - death within 9 months of marriage - burnt - the woman was subjected to cruelty soon before her death - prosecution proved its case - trial court and High court rightly convicted the accused - No grounds to interfere - Apex court dismissed the appeal = PRADEEP KUMAR … APPELLANT VERSUS STATE OF HARYANA … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41725

 Sec.498 A, 304 B - death within 9 months of marriage - burnt - the woman was subjected to cruelty soon before her death - prosecution proved its case - trial court and High court rightly convicted the accused - No grounds to interfere - Apex court dismissed the appeal = 

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, “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.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41725


                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 292  OF 2011

PRADEEP KUMAR                                       … APPELLANT

                                   VERSUS

STATE OF HARYANA                              … RESPONDENT

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

      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 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 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 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  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 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 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.
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 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.
[pic]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  dowry-related  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  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, “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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