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
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.
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
