Coming to the credibility of the defence witnesses, we have already noticed that Ex.D1 is a document created by the defence just to escape the punishment under law. If that is what the deceased wanted to say, she had a number of opportunities to say so, freely and voluntarily. However, in presence of the Tehsildar and twice in presence of the Police, she made the same statement implicating her husband Bhajju of pouring kerosene oil on her and putting her on fire. Where was the necessity of typing an affidavit and getting the same thumb-marked by the deceased when she was suffering 60% burn injuries. If the version given in 23 this affidavit was true, we see no reason why the deceased should have stated before the police and the Tehsildar what she did. The two defence witnesses, namely Prabhat Kumar Sharma, DW1 and Laxmi Prasad Yadav, DW2, were examined by the defence to prove its innocence. DW1, the Notary Public, does not state as to where, when and at whose instance the affidavit was typed. This witness has completely failed to explain as to why the photograph of the deceased was fixed on the affidavit. If it was the requirement of law, then why the photograph of a date prior to the date on which the affidavit was sworn and attested, was affixed on the affidavit. This witness also admitted in his cross-examination that he knew that the affidavit was being sworn for belying a statement made earlier, but he made no enquiries from the deceased or from any other proper quarters to find out what was the previous statement of the deceased. It will not be safe for the Court to rely on the statement of this witness. DW2, is the person who had typed the affidavit, Ex.D1. He knew Medabai. According to this witness, the contents were typed on the basis of what Medabai had stated. There are contradictions between the statements of DW1 and DW2. We do not think that these witnesses are reliable and their statements are trustworthy. We would expect a Notary Public to maintain better professional standards rather than act at the 24 behest of a particular party. 24. For these reasons, we find no ground to interfere in the concurrent judgments of conviction and order of sentence. The appeal is without merit and is dismissed accordingly.

                                               1



                                                    REPORTABLE



                  IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO.301 OF 2008





Bhajju @ Karan Singh                                            ... Appellant


                                     Versus


State of M.P.                                            ... Respondent





                              J U D G M E N T




Swatanter Kumar, J.




1.    The   present   appeal   is   directed   against   the   judgment   of


conviction and order of sentence dated 9th  February, 1998 passed


by   the   Court   of   Sessions   Judge,   Tikamgarh   and   affirmed   by   the


High   Court   of   Madhya   Pradesh,   Bench   at   Jabalpur,   vide   its


judgment dated 7th August, 2007.




2.    The  facts  giving rise to  the  present appeal fall  within  a  very


narrow compass and are being stated at the very outset.  Bhajju @


Karan   Singh,   the   appellant   herein,   was   married   to   Medabai,   the


deceased,   and   was   living   in   Niwadi,   District   Tikamgarh,   Madhya


Pradesh.     Bhajju   had   doubts   about   the   chastity   of   his   wife   and


                                                2



often   used   to   accuse   her   of   having   illicit   relations   with   one


Ramdas.   According to the appellant, she also had a lose temper


and on one occasion, she had left their one month old child on a


platform and had gone to her parental house along with her son,


Harendra,   aged   about   four   years.     It   is   stated   that   he   had   even


reported   this   incident   at   the   Police   Station,   Niwadi,   on   2nd


September, 1995.  On the other hand, the prosecution has alleged


that  besides  accusing    the  deceased  of  having  illicit   relations,  he


used   to   ill-treat   her   and   even   question   the   paternity   of   the


children   born   out   of  the   wedlock.     In  fact,   on  the   evening  before


the incident in question, he had beaten his wife with slipper.   On


12th September, 1995, at about 7.00 a.m., when she was cleaning


the kitchen, Bhajju poured kerosene oil on her and set her ablaze


with   the   help   of   a   match   stick.     She   raised   hue   and   cry.     Ayub


(PW3) and Pratap (PW2) from the neighbourhood reached the spot.


They took her to the hospital in the taxi  where she was examined


by   Dr.   Suresh   Sharma   (PW9),   vide   report   Exhibit   14.     Dehati


Nalishi,   Exhibit   P16   was   recorded   on   the   basis   of   which   FIR


Exhibit P14 was recorded and a case was registered under Section


307   of   the   Indian   Penal   Code,   1860   (IPC).     She   was   admitted   to


the hospital and was found to be having 60 per cent burn injuries


and   her   blouse   was   smelling   of   kerosene   oil   at   that   time.     Her


                                             3



dying declaration was recorded by the Executive Magistrate-cum-


Tehsildar  at about 9.10 a.m. vide Exhibit P4.   She succumbed to


the burn injuries and died on 17th  October, 1995.     A case under


Section   302   IPC   was   registered   against   the   appellant-accused.


After registration of the case, the Investigating Officer prepared the


inquest   report.     Post   mortem   was   performed   and   the   cause   of


death   was   opined   to   be   extensive   burn   injuries.       During   the


investigation,   statements   of   other   witnesses   including   Pratap,


Ayub and Lakhanpal (PW-1) were recorded and the site plan was


prepared.   Certain items were recovered from the site like broken


bangles,   match   box,   half   burnt   match   sticks,   clothes   of   the


deceased,   kerosene   oil   container,   etc.     Based   on   the   ocular   and


documentary   evidence,   the   Investigating   Officer   filed   the   charge-


sheet   before   the   court   of   competent   jurisdiction.     The   appellant-


accused   was   committed   to   the   Court   of   Sessions   where   he   was


tried.   The appellant put up the defence that because of her illicit


relationship   with   Ramdas,   their   neighbor,   and   her   arrogant


attitude, the deceased was a difficult person to live with.  However,


on 12.9.1995, she accidentally caught fire and got burnt while she


was preparing the food.  As a result, she died and the accused was


innocent.  Disbelieving the defence of the accused and forming an


opinion   that   the   prosecution   has   been   able   to   prove   its   case


                                              4



beyond   reasonable   doubt,   the   learned   Sessions   Judge   convicted


the   accused   for   the   offence   under   Section   302   IPC   and   awarded


him   rigorous   imprisonment   for   life   vide   his   judgment   dated   9th


February, 1998.  This was challenged before the High Court.  The


High   Court   affirmed   the   judgment   of   conviction   and   order   of


sentence   passed   by   the   learned   trial   court   and   dismissed   the


appeal of the appellant/accused, giving rise to the present appeal.




3.    Not   only   the   facts   of   this   case   but   also   the   legal   issues


involved herein fall in a narrow compass.  It is for the reason that


the   incident   in   question   is   not   disputed.     Pratab   (PW-2),   Ayub


(PW-3)  and Lakhanpal (PW-1) ,  who were later declared hostile by


the   prosecution   and   subjected   to   cross-examination   had   stated


that   the   deceased   had   got   burnt   accidentally   while   she   was


cooking   food.   They   have   denied   any   involvement   of   the


appellant/accused as well as  the  fact  that the  deceased had  told


them   that   the   appellant/accused   had   burnt   her   by   pouring


kerosene   oil   on   her.     Furthermore,   Exhibit   D1   is   the   affidavit


stated   to   have   been   sworn   by   the   deceased   on   30th  September,


1995 while she died on 17th October, 1995.  In this affidavit, which


is the backbone of the defence, a similar stand has been taken by


the deceased, Medabai.   In this affidavit, it was stated that at the


time of swearing-in of the affidavit in the Medical College, she was


                                               5



more or less healthy in all respects. The appellant/accused in his


statement   under   Section   313   of   the   Criminal   Procedure   Code,


1973 (for short `Cr.P.C.') has given the usual reply that he knows


nothing and that he was not present at his residence at the time of


the occurrence.




4.    Before   we   comment   upon   this   defence   and   the   evidentiary


value of Exhibit D1, it will be appropriate to examine the case of


the   prosecution.     The   FIR,   Ext   P-17   itself   was   registered   on   the


basis   of   a   statement   made   by   the   deceased   referred   as   Dehati


Nalishi, Exhibit P-16, and a case was registered under Section 307


IPC.     It  is   a  matter   of   common   prudence   that   a   person   who   had


been burnt and was having 60 per cent burn injuries would not be


able   to   go   to   the   hospital   on   her   own   and   somebody   must   have


taken her to the hospital.  According to the prosecution, PW3 and


PW2,   had   reached   the   spot   and   had   taken   the   deceased   to   the


hospital.     Thus,   they   were   the   first   persons   whom   the   deceased


met and as per the case of the prosecution, she had told them that


Bhajju   had   poured   kerosene   on   her   and   set   her   ablaze.     At   the


hospital, she was examined by Dr. Suresh Sharma, PW9, who in


his   statement   had   recorded   that   he   has   examined   the   deceased


and  she had  as many   as  10  injuries   on  her  body  and  that  some


wounds on her body which were bleeding.   According to the said


                                                6



doctor, these injuries could have been caused by a  Kada  or some


sharp object. The burn injuries were found to be 60 per cent.  The


person was burnt with kerosene oil.  Lower parts of her body were


burnt.     Her   left   hand   was   burnt,   right   hand   and   arm   were   also


burnt.   He further stated that the statement of the deceased was


recorded   by   the  Tehsildar,   on   which   she   had   put   her   thumb


impression   and   that   the   dying   declaration   also   had   been  written


by   the   doctor   declaring   that   she   was   in   full   senses   to   make   the


statement.     In   his   cross-examination,   this   witness   clearly   stated


that   the   blouse   that   Medabai   was   wearing   was   smelling   of


kerosene   oil.     Thus,   the   doctor   is   a   witness   to   the   dying


declaration  as well as to the  condition and cause of  death  of the


deceased.




5.    PW5,   Vijay   Kumar   is   the  Tehsildar  who   recorded   the   dying


declaration of the deceased.   When he appeared as a witness, he


admitted to having recorded the dying declaration of the deceased,


which   bore   his   signatures   at   A   to   A   of   Exhibit   P4   and   recording


was in his hand-writing of what was stated by Medabai and that


he   added   or   subtracted   nothing   from   what   she   had   stated.


Nothing   material   could   be   brought   out   during   the   lengthy   cross-


examination of this witness.  Thus, the dying declaration had been


recorded   by   the   competent   officer   of   the   executive,   duly   attested


                                                 7



by  the   doctor  and  the   cross-examination  of  both   these  witnesses


did   not   bring   out   any   legal   or   substantial   infirmity   in   the   dying


declaration of the deceased, which could render it inadmissible or


unreliable.




6.    The post mortem of the body of the deceased was performed


by   Dr.   S.K.   Khare,   PW10,   and   his   report   is   Exhibit   P15   which


confirms   the   burn   injuries   and   the   death   being   due   to   these


injuries.   There is evidence which clearly shows that  she tried  to


fight   before   she   succumbed   to   the   burn   assault   by   the


appellant/accused.     In   that   process,   her   bangles   were   broken


which   were   recovered   vide   Exhibit   P6   from   the   site   and   she   also


suffered   injuries   which,   as   already   noticed,   were   bleeding   when


she was examined by Dr. Suresh Sharma, PW9.  Other recoveries


were also made from the site, which evidences that the occurrence


took   place   in   the   manner   as   stated   by   the   deceased.     It   is   a


common behaviour that if a person is pouring kerosene on herself


then the maximum kerosene will be poured on the head, face and


upper   parts   of   the   body   and   lesser   amount   will   reach   the   lower


parts of the body and clothes.   Contrary to this, the lower half of


the body of the deceased had received more burn injuries than her


upper   part   and,   in   fact,   if   one   has   to   even   remotely   believe   that


Exhibit   D1   could   be   executed   by   her,   then   on   the   photograph


                                              8



annexed to it, not even a single burn injury on her face and upper


part of the body is visible.   If this photograph is of a date prior to


the incident then there was no occasion for the appellant/accused


or   the   Oath   Commissioner   attesting   the   affidavit   to   affix   this


photograph   on   this   affidavit.     This   document,   thus,   appears   to


have been created and is, thus, incapable of being relied upon by


the Court.




7.    Besides recording of Exhibit P4, two other statements of the


deceased were also recorded.   Both of them were recorded by the


Police   Officers   on   different   occasions.     Firstly,   as   already   noted,


Exhibit   P16   was   the   statement   recorded   immediately   after   the


occurrence   on   12th  September,   1995,   on   the   basis   of   which   FIR,


Ext.   P-17,   was   registered   and   thereafter   Exhibit   P18,   the


statement of the deceased under Section 161 of the Cr. P.C. was


recorded, that too, on 12th September, 1995.  Exhibit P16 and P18


may,   by   themselves,   not   carry   much   evidentiary   value   but   they


definitely   have   the   same   version   as   was   recorded   by   PW11,   the


Tehsildar  in   Exhibit   P4,   the   dying   declaration,   which   is   not   only


admissible in evidence but is reliable, coherent and in conformity


with the requirements of law.




8.    The   primary   contention   raised   on   behalf   of   the   accused   is


                                               9



that the dying declaration, Ex. P4 being the sole piece of evidence,


cannot   be   relied   upon   by   the   courts.     There   is   no   evidence


corroborating   Ex.P4.     As   such,   the   concurrent   judgments   of


conviction are unsustainable.





9.    Firstly,   we   must   notice   that   this   is   not   a   case   where   the


dying   declaration,   Ex.P4,   is   the   only   evidence   against   the


appellant/accused or that whatever is stated in it, is not partially


or otherwise supported by other evidence given the fact that there


is no dispute to the occurrence in question, the statements of the


doctor, PW9 and the Investigating Officer, PW10 and the Exhibits


including   the   site   plan,   post-mortem   report   etc.,   which   are


admissible   pieces   of   substantive   evidence,   fully   corroborate   the


dying   declaration.         If   the   deceased   had   poured   kerosene   oil   on


herself, then in the normal course; a) there could not be bleeding


wounds   on   her   body,   b)   broken   bangles   could   not   have   been


recovered   from   the   site,   in   question   and   c)   she   could   not   have


suffered injuries on her hands and arms.     All these factors show


struggle   before   death   and   this   indication   is   further   strengthened


by the fact that lower part of her body had suffered greater burn


injury, than the upper part.     Had that been the case, then alone


the case of the defence could be considered by this Court, even as


                                                10



a   remote   probability.     That   certainly   is   not   the   situation   in   the


present case.



10.    The   law   is   very   clear   that   if   the   dying   declaration   has   been


recorded in accordance with law, is reliable and gives a cogent and


possible   explanation   of   the   occurrence   of   the   events,   then   the


dying   declaration   can   certainly   be   relied   upon   by   the   Court   and


could form the sole piece of evidence resulting in the conviction of


the   accused.     This   Court   has   clearly   stated   the   principle   that


Section 32 of the Indian Evidence Act, 1872 (for short `the Act') is


an   exception   to   the   general   rule   against   the   admissibility   of


hearsay evidence.  Clause (1) of Section 32 makes the statement of


the deceased admissible, which is generally described as a `dying


declaration'.     The   `dying   declaration'   essentially   means   the


statement made by a person as to the cause of his death or as to


the circumstances of the transaction resulting into his death.  The


admissibility   of   the   dying   declaration   is   based   on   the   principle


that the sense of impending death produces in a man's mind, the


same   feeling   as   that   the   conscientious   and   virtuous   man   under


oath.   The dying declaration is admissible upon the consideration


that the declaration was made in extremity, when the maker is at


the   point   of   death   and   when   every   hope   of   this   world   is   gone,


when every motive to file a false suit is silenced in the mind and


                                                11



the   person   deposing   is   induced   by   the   most   powerful


considerations to speak the truth.  Once the Court is satisfied that


the   declaration   was  true   and   voluntary,   it  undoubtedly   can  base


its   conviction   on   the   dying   declaration,   without   requiring   any


further corroboration.   It cannot be laid down as an absolute rule


of   law   that   the   dying   declaration   cannot   form   the   sole   basis   of


conviction unless it is corroborated by other evidence.


11.    There is a clear distinction between the principles governing


the   evaluation   of   a   dying   declaration   under   the   English   law   and


the Indian law. Under the English law, credence and relevancy of


a   dying   declaration   is   only   when   the   person   making   such   a


statement   is   in   hopeless   condition   and   expecting   an   imminent


death.     So   under   the   English   law,   for   its   admissibility,   the


declaration should have been made when in the actual danger of


death and that the declarant should have had a full apprehension


that his death would ensue.   However, under the Indian law, the


dying   declaration   is   relevant,   whether   the   person   who   makes   it


was   or   was   not   under   expectation   of   death   at   the   time   of   such


declaration.     The   dying   declaration   is   admissible   not   only   in   the


case   of   homicide   but   also   in   civil   suits.     The   admissibility   of   a


dying   declaration   rests   upon   the   principle   of  nemo   meritorious


praesumuntur mentiri  (a man will not meet his maker with a lie in


                                                12



his mouth).


12.    The law is well-settled that a dying declaration is admissible


in   evidence   and   the   admissibility   is   founded   on   the   principle   of


necessity.     A   dying   declaration,   if   found   reliable,   can   form   the


basis of a conviction.  A Court of facts is not excluded from acting


upon   an   uncorroborated   dying   declaration   for   finding   conviction.


The dying declaration, as a piece of evidence, stands on the same


footing   as   any   other   piece   of   evidence.     It   has   to   be   judged   and


appreciated   in   light   of   the   surrounding   circumstances   and   its


weight   determined   by   reference   to   the   principle   governing   the


weighing   of   evidence.     If   in   a   given   case   a   particular   dying


declaration   suffers   from   any   infirmity,   either   of   its   own   or   as


disclosed   by   the   other   evidence   adduced   in   the   case   or   the


circumstances   coming   to   its   notice,   the   Court   may,   as   a   rule   of


prudence, look for corroboration and if the infirmities are such as


would   render   a   dying   declaration   so   infirm   that   it   pricks   the


conscience of the Court, the same may be refused to be accepted


as forming basis of the conviction.


13.    Another   consideration   that   may   weigh   with   the   Court,   of


course with reference to the  facts  of a  given case, is whether  the


dying   declaration   has   been  able   to   bring   a   confidence   thereupon


or not, is it trust-worthy or is merely an attempt to cover up the


                                              13



latches   of   investigation.     It   must   allure   the   satisfaction   of   the


Court   that   reliance   ought   to   be   placed   thereon   rather   than


distrust.


14.    In regard to the above stated principles, we may refer to the


judgments of this Court in the cases of Ravikumar @ Kutti Ravi v.


State of Tamil Nadu (2006) 9 SCC 240, Vikas and Others v. State of


Maharashtra  (2008) 2 SCC 516, Kishan Lal  v.  State of Rajasthan


(2000) 1 SCC 310,  Laxmi   (Smt.) v.   Om Prakash  & Ors.    (2001) 6


SCC 118, Panchdeo Singh  v.  State of Bihar (2002) 1 SCC 577.


15.    In   the   case   of  Jaishree   Anant   Khandekar   v.   State   of


Maharashtra  (2009)   11   SCC   647,   discussing   the   contours   of   the


American   Law   in   relation   to   the   `dying   declaration'   and   its


applicability to the Indian law, this Court held as under: -




        "24.  Apart   from   an   implicit   faith   in   the   intrinsic

        truthfulness   of   human   character   at   the   dying   moments

        of   one's   life,   admissibility   of   dying   declaration   is   also

        based on the doctrine of necessity. In many cases victim

        is the only eyewitness to a crime on him/her and in such

        situations exclusion of the dying declaration, on hearsay

        principle, would tend to defeat the ends of justice.



        25.  American law on dying declaration also proceeds on

        the   twin   postulates   of   certainty   of   death   leading   to   an

        intrinsic   faith   in   truthfulness   of   human   character   and

        the necessity  principle.  On  certainty of death, the same

        strict   test   of   English   law   has   been  applied   in   American

        jurisprudence. The test has been variously expressed as

        "no   hope   of   recovery",   "a   settled   expectation   of   death".

        The   core   concept   is   that   the   expectation   of   death   must


                                                   14



        be   absolute   and   not   susceptible   to   doubts   and   there

        should be no chance of operation of worldly motives."




16.    It   will   also   be   of   some   help   to   refer   to   the   judgment   of   this


Court in the case of Muthu Kutty and Another v.  State by Inspector


of   Police,   T.N.,  (2005)   9   SCC   113   where   the   Court,   in   paragraph


15, held as under:-





         "15.  Though   a   dying   declaration   is   entitled   to   great

         weight, it is worthwhile to note that the accused has no

         power   of   cross-examination.   Such   a   power   is   essential

         for eliciting the truth as an obligation of oath could be.

         This  is  the reason the  court also insists that the dying

         declaration should be of such a nature as to inspire full

         confidence of the court in its correctness. The court has

         to be on guard that the statement of the deceased was

         not   as   a   result   of   either   tutoring,   or   prompting   or   a

         product   of   imagination.   The   court   must   be   further

         satisfied   that   the   deceased   was   in   a   fit   state   of   mind

         after   a   clear   opportunity   to   observe   and   identify   the

         assailant.   Once   the   court   is   satisfied   that   the

         declaration was true and voluntary, undoubtedly, it can

         base its conviction without any further corroboration. It

         cannot be laid down as an absolute rule of law that the

         dying   declaration   cannot   form   the   sole   basis   of

         conviction   unless   it   is   corroborated.   The   rule   requiring

         corroboration   is   merely   a   rule   of   prudence.   This   Court

         has   laid   down   in   several   judgments   the   principles

         governing dying declaration, which could be summed up

         as   under   as   indicated   in  Paniben  v.  State   of   Gujarat

         [(1992) 2 SCC 474  : 1992 SCC (Cri) 403 : AIR 1992 SC

         1817] (SCC pp. 480-81, paras 18-19)



          (i)   There   is   neither   rule   of   law   nor   of   prudence   that

          dying   declaration   cannot   be   acted   upon   without

          corroboration. (See Munnu Raja v. State of M.P.)


           (ii) If the Court is satisfied that the dying declaration is


                                     15



true and voluntary it can base conviction on it, without

corroboration.   (See  State   of   U.P.   v.   Ram   Sagar   Yadav

and Ramawati Devi v. State of Bihar.)


(iii)   The   Court   has   to   scrutinise   the   dying   declaration

carefully   and   must   ensure   that   the   declaration   is   not

the   result   of   tutoring,   prompting   or   imagination.   The

deceased   had   an   opportunity   to   observe   and   identify

the   assailants   and   was   in   a   fit   state   to   make   the

declaration.   (See  K.   Ramachandra   Reddy   v.   Public

Prosecutor)



(iv)   Where   dying   declaration   is   suspicious,   it   should

not be acted upon without corroborative evidence. (See

Rasheed Beg v. State of M.P.)



(v)   Where   the   deceased   was   unconscious   and   could

never   make   any   dying   declaration   the   evidence   with

regard to it is to be rejected. (See Kake Singh v. State of

M.P.)



(vi)   A   dying   declaration   which   suffers   from   infirmity

cannot   form   the   basis   of   conviction.   (See            Ram

Manorath v. State of U.P.)



(vii)   Merely   because   a   dying   declaration   does   not

contain the details as to the occurrence, it is not to be

rejected.   (See  State   of   Maharashtra   v.   Krishnamurti

Laxmipati Naidu.)



(viii) Equally, merely because it is a brief statement, it

is not to be discarded. On the contrary, the shortness

of the statement itself guarantees truth. (See  Surajdeo

Ojha v. State of Bihar.)



(ix)   Normally   the   Court   in   order   to   satisfy   whether

deceased   was   in   a   fit   mental   condition   to   make   the

dying  declaration   look  up  to  the   medical  opinion.  But

where  the  eyewitness  said  that  the  deceased  was  in a

fit and conscious state to make the dying declaration,

the medical  opinion cannot prevail. (See  Nanhau  Ram

v. State of M.P.)


                                                 16





          (x)   Where   the   prosecution   version   differs   from   the

          version   as   given   in   the   dying   declaration,   the   said

          declaration cannot be acted upon. (See  State  of U.P. v.

          Madan Mohan.)



          (xi)   Where   there   are   more   than   one   statement   in   the

          nature of dying declaration, one first in point of time

          must be preferred. Of course, if the plurality of dying

          declaration   could   be   held   to   be   trustworthy   and

          reliable,   it   has   to   be   accepted.   (See            Mohanlal

          Gangaram Gehani v. State of Maharashtra.)"





17.    Learned   counsel   for   the   parties   have   relied   upon   the


judgments in the case of Ravikumar @ Kutti Ravi  (supra),   Kishan


Lal  (supra); Laxmi  (Smt.) (supra),; Panchdeo Singh  (supra).  These


judgments   do   not   set   any   other   principle   than   what   we   have


already   spelt   above.     The   first   attempt   of   the   court   has   to   be,   to


rely   upon   the   dying   declaration,   whether   corroborated   or   not,


unless it suffers from certain infirmities, is not voluntary and has


been produced to overcome the latches in the investigation of the


case.     There   has   to   be   a   very   serious   doubt   or   infirmity   in   the


dying   declaration   for   the   courts   to   not   rely   upon   the   same.     Of


course,  if  it falls   in  that class  of  cases,  we  have  no doubt  in  our


minds   that   the   dying   declaration   cannot   form   the   sole   basis   of


conviction.  However, that is not the case here.


                                               17



18.    Then,   it   was   also   vehemently   argued   that   the   two   main


witnesses   PW2   and   PW3   as   well   as   the   brother   of   the   deceased


PW4,     had   turned   hostile   and,   therefore,   the   case   of   the


prosecution has no legs to stand, much less that they have proved


their case beyond any reasonable doubt.  This submission looks to


be   attractive   at   the   first   glance   but   when   examined   in   depth,   is


without   any   merit.     Firstly,   there   is   no   witness   to   the   dying


declaration   who   has   turned   hostile.     None   of   the   witnesses,   i.e.


PW2 to PW4, were witnesses to or were even remotely involved in


the recording of the three different dying declarations, i.e. Ex.P4,


P16 and P18.    Reliance by the learned  counsel appearing  for the


appellant/accused upon the judgment of this Court in the case of


Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3


SCC   104   to   contend   that   a   dying   declaration   cannot   be


corroborated by the testimony of hostile witnesses is hardly of any


help.  As already noticed, none of the witnesses or the authorities


involved   in   the   recording   of   the   dying   declaration   had   turned


hostile.  On the contrary, they have fully supported the case of the


prosecution   and   have,   beyond  reasonable   doubt,  proved   that  the


dying declaration is reliable, truthful and was voluntarily made by


the deceased.   We may also notice that this very judgment relied


upon by the accused itself clearly says that the dying declaration


                                               18



can   be   acted   upon   without   corroboration   and   can   be   made   the


basis   of   conviction.     Paragraph   6   of   the   said   judgment   reads   as


under:-



        "6......It  is   well  settled  that  though  a  dying   declaration

        must   be   approached   with   caution   for   the   reason   that

        the maker of the statement cannot be subject to cross-

        examination, there is neither a rule of law nor a rule of

        prudence which has hardened into a rule of law that a

        dying   declaration   cannot   be   acted   upon   unless   it   is

        corroborated (see Khushal Rao v. State of Bombay).  The

        High Court, it is true, has held that the evidence of the

        two   eyewitnesses   corroborated   the   dying   declarations

        but   it   did   not   come   to   the   conclusion   that   the   dying

        declarations   suffered   from   any   infirmity   by   reason   of

        which it was necessary to look out for corroboration."





19.    Now,  we  shall  discuss   the  effect  of  hostile  witnesses  as  well


as   the   worth   of   the   defence   put   forward   on   behalf   of   the


appellant/accused.  Normally, when a witness deposes contrary to


the   stand   of   the   prosecution   and   his   own   statement   recorded


under   Section   161   of   the   Cr.P.C.,   the   prosecutor,   with   the


permission of the Court, can pray to the Court for declaring that


witness  hostile   and  for  granting     leave  to   cross-examine  the   said


witness.     If   such   a   permission   is   granted   by   the   Court   then   the


witness   is   subjected   to   cross-examination   by   the   prosecutor   as


well as an opportunity is provided to the defence to cross-examine


such witnesses, if he so desires.  In other words, there is a limited


examination-in-chief,   cross-examination   by   the   prosecutor   and


                                               19



cross-examination by the counsel for the accused.  It is admissible


to   use   the   examination-in-chief   as   well   as   the   cross-examination


of   the   said   witness   in   so   far   as   it   supports   the   case   of   the


prosecution.  It is settled law that the evidence of hostile witnesses


can also be relied upon by the prosecution to the extent to which


it supports the prosecution version of the incident.   The evidence


of such witnesses cannot be treated as washed off the records, it


remains  admissible   in   trial   and   there   is   no  legal   bar   to   base   the


conviction of the accused upon such testimony, if corroborated by


other reliable evidence.  Section 154 of the Act enables the Court,


in its discretion, to permit the person, who calls a witness, to put


any question to him which might be put in cross-examination by


the adverse party.   The view that the evidence of the witness who


has been called and cross-examined by the party with the leave of


the court, cannot be believed or disbelieved in part and has to be


excluded   altogether,   is   not   the   correct   exposition   of   law.       The


Courts   may   rely   upon   so   much   of   the   testimony   which   supports


the case of the prosecution and is corroborated by other evidence.


It is also now a  settled cannon of criminal jurisprudence that the


part   which   has   been   allowed   to   be   cross-examined   can   also   be


relied   upon   by   the   prosecution.     These   principles   have   been


encompassed in the judgments of this Court in the cases :


                                               20



   a.    Koli Lakhmanbhai Chanabhai  v.  State of Gujarat

(1999) 8 SCC 624


   b.    Prithi  v.  State of Haryana

(2010) 8 SCC 536


   c.    Sidhartha Vashisht @   Manu Sharma   v.   State  (NCT of Delhi)

         (2010) 6 SCC 1


   d. Ramkrushna  v.  State of Maharashtra

(2007) 13 SCC 525


20.      PW2  and   PW3  were   the   persons  who  had   met   the   deceased


first after she was put on fire.  They were not the eye-witnesses to


the   occurrence.     It   is   an   admitted   case   that   they   were   the   first


persons to meet the deceased after she suffered the burn injuries


and   had   taken   her   to   the   hospital.     This   was   their   consistent


version   when   stated   before   the   police   and   even   before   the   court.


Contrary   to   their   statement   made   to   the   Investigating   Agency,   in


the Court, they made a statement that the deceased had told them


that   she   had   caught   fire   by   chimney   and   her   burn   injuries   were


accidental.   This was totally contrary to their version given to the


police where  they  had  stated  that she had told them  that Bhajju


had   poured   kerosene   on   her   and   put   her   on   fire.     To   the   extent


that   their   earlier   version   is   consistent   with   the   story   of   the


prosecution,   it   can   safely   be   relied   upon   by   the   prosecution   and


court.     The   later   part   of   their   statement,   in   cross-examination


done either by the accused or by the prosecution, would not be of


                                               21



any   advantage   to   the   case   of   the   prosecution.     However,   the


accused may refer thereto.  But the court will always have to take


a very cautious decision while referring to the statements of such


witnesses   who   turn   hostile   or   go   back   from   their   earlier


statements   recorded,   particularly,   under   Section   164   of   the


Cr.P.C.   What   value   should   be   attached   and   how   much   reliance


can   be   placed   on   such   statement   is   a   matter   to   be   examined   by


the Courts with reference to the facts of a given case.


21.    PW4,   brother   of   the   deceased,   is   another   witness   who   has


made   an   attempt   to   help   the   accused.     He   stated   that   Medabai


had   died   and   Bhajju   was   his   brother-in-law   and   she   got   burnt


while   cooking   food   and   that   Medabai   had   told   him   that   Bhajju


used   to   keep   her   nicely.     Firstly,   we   must   notice   that   all   these


witnesses   who   had   turned   hostile   or   attempted   to   support   the


accused are the neighbours or close relations of the deceased and


also that of the appellant/accused.     Their somersault appears to


be founded on the consideration of saving a relation from receiving


punishment   at   the   hands   of   justice.     They   appear   to   have   lied


before   this   Court,   more   out   of   sympathy   for   the


appellant/accused.     The   very   opening   part   of   the   statement   of


PW4, where he says "Medabai mari ja chuki hai" and "Medabai ko


khana   pakate   samay   aag   lagi   thi"  is   sufficient   indicator   of   his


                                                22



sympathy and the fact that his sister has already died and that he


would   not   like   to   lose   his   brother-in-law   and   secondly,   that   it   is


also not clear from his statement as to who told him that Medabai


had caught fire while cooking.





22.    These   are   matters   of   serious   consequences   and   render   the


statement   of   all   these   three   witnesses   unreliable   and


undependable.     Thus,   these   statements   we   would   refer   and   rely


(examination-in-chief) only to the extent they support the case of


the   prosecution   and   are   duly   corroborated,   not   only   by   other


witnesses   but   even   by   the   dying   declaration   and   the   medical


evidence.


23.    Coming   to   the   credibility   of   the   defence   witnesses,   we   have


already noticed that Ex.D1 is a document created by the defence


just   to   escape   the   punishment   under   law.     If   that   is   what   the


deceased wanted to say, she had a number of opportunities to say


so, freely and voluntarily.     However, in presence of the  Tehsildar


and twice in presence of the Police, she made the same statement


implicating   her   husband   Bhajju   of   pouring   kerosene   oil   on   her


and   putting   her   on   fire.     Where   was   the   necessity   of   typing   an


affidavit   and   getting   the   same   thumb-marked   by   the   deceased


when she was suffering 60% burn injuries.  If the version given in


                                                   23



this affidavit was true, we see no reason why the deceased should


have stated before the police and the Tehsildar what she did.  The


two defence witnesses, namely Prabhat Kumar Sharma, DW1 and


Laxmi Prasad Yadav, DW2, were examined by the defence to prove


its innocence.  DW1, the Notary Public, does not state as to where,


when and at whose instance the affidavit was typed.  This witness


has   completely   failed  to   explain   as  to   why  the   photograph   of  the


deceased was fixed on the affidavit.     If it was the requirement of


law, then why the photograph of a date prior to the date on which


the affidavit was sworn and attested, was affixed on the affidavit.


This witness also admitted in his cross-examination that he knew


that   the   affidavit   was   being   sworn   for   belying   a   statement   made


earlier, but he made no enquiries from the deceased or from any


other proper quarters to find out what was the previous statement


of   the   deceased.     It   will   not   be   safe   for   the   Court   to   rely   on   the


statement of this witness.  DW2, is the person who had typed the


affidavit, Ex.D1.  He knew Medabai.  According to this witness, the


contents   were   typed   on   the   basis   of   what   Medabai   had   stated.


There   are   contradictions   between   the   statements   of   DW1   and


DW2.  We do not think that these witnesses are reliable and their


statements are trustworthy.    We would expect a Notary Public to


maintain   better   professional   standards   rather   than   act   at   the


                                             24



behest of a particular party.


24.    For   these   reasons,   we   find   no   ground   to   interfere   in   the


concurrent   judgments   of   conviction   and   order   of   sentence.     The


appeal is without merit and is dismissed accordingly.




                                                   ..................................,J.

                                                   [A.K. Patnaik]





                                                   ..................................,J.

                                                   [Swatanter Kumar]

New Delhi;

March 15, 2012





                                                   

Section 188 of Cr.P.C. reads as follows: Offence committed outside India: When an offence is committed outside India--- a) by a citizen of India, whether on the high seas or elsewhere; or b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

THE HON'BLE MR. JUSTICE RAJA ELANGO      
CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010  

01-03-2011

Crl.P.No.2976 of 2009

Mr.Rajesh Gutta,S/o.late Apparao Gutta,Age 33 years,R/o.12727 Vista Del
NorteApt # 508, San Antonio TX 78216, USA

1.State of A.P., Through P.P.,High Court of A.P., Hyderabad AND 2 OTHERS

Counsel for the Petitioners:  MR. RAJA GOPALLAVAN TAYI,  

Counsel for the Respondent No.1: PUBLIC PROSECUTOR.    

^Counsel for the Respondent No.2: MR.C.PRAVEEN KUMAR    

CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010  

:COMMON ORDER:    


Since the de facto complainant in both the petitions is one and the same and the
petitioners are the husband and mother-in-law of the daughter of the complainant
respectively, both the petitions heard together and are being disposed of by
this common order.
Petitioners approach this Court with a prayer to quash the proceedings against
them in C.C.No.507 of 2006 on the file of the XIII Additional Chief Metropolitan
Magistrate, Hyderabad, whereby they are facing charge for the offence punishable
under Sections 498-A, 494 and 511 of IPC and 3 and 4 of the Dowry Prohibition
Act.

 Heard both sides.
The marriage of the de facto complainant's daughter with the petitioner in
Crl.P.No.2976 of 2009 took place in the year 2004.  The complaint is lodged on
31.07.2006.  For the disposal of this petition, for better appreciation this
Court is of the view that the entire complaint can be reproduced even though it
is in length:
Date: 31st July 2006.
To
The Station House Officer,
Malakpet,
Hyderabad.

Sub:    Complaint regarding demand for dowry, accepting dowry, demand for
additional dowry and subjecting my daughter Mrs.Pallavi to extreme cruelty on
failure to meet the said demands.

Sir/Madam,
1. I, Ram Mohan Rao, V.Pasupuleti, a native of Hyderabad and residing in U.S.A.
submit the following facts with regard to the offences committed by my Son-in-
law Mr.Rajesh Gutta and his family members in subjecting my daughter Mrs.Pallavi
to extreme cruelty during her matrimonial life in India especially in Hyderabad
and later on in U.S.A., for demanding dowry before the marriage and for unlawful
demands after the marriage and planning for bigamy.
2. I state that during the middle of the year 2004, I was looking for a marriage
alliance for my daughter a graduate with Honours in Chemistry and working as a
supervisor in a pharmaceutical company in Philadelphia, Pennsylvania, U.S.A.  I
got the reference of Mr.Rajesh Gutta residing in Birmingham, Alabama State,
U.S.A. in July 2004 through Bharat matrimony website.  I contacted him over
phone and found out details of his family members, given as Smt.Swarajya Lakshmi
(mother), Satish Gutta (Younger brother) Sakhamuri Rama Chandra Rao (adopted
father), S. Parvathi Devi(adopted mother). On my invitation Mr.Rajesh visited my
house on 29.08.2004 and then I contacted his elders in India for the alliance.
I was shocked at the terms and pre-conditions put forth for finalizing the
alliance, which included payment of Rs.15 lakhs dowry before marriage (document
enclosed), a diamond ring for the bridegroom and expensive clothes for their
relatives numbering 13 families.  Though I was opposed to the practice of dowry
demand, I was forced to accept the same.
3.  I state that on account of the above 'dowry' demands by the said persons and
insistence for payment of dowry before marriage, I transferred 30,000/- U.S.
dollars to bank account No.001-1-427374/602601508969 of Mrs.Gutta Swarajya
Lakshmi maintained in ICICI bank in India on 12th October 2004 as per their
demand (document enclosed).
4.  On 4th Nov-2004 the above said persons visited our house at Plot No.166, Sri
Puram Colony, Malakpet, Hyderabad - 500 016 and insisted that an additional
amount of Rs.2,50,000/- must be paid to Smt.G.Swarajya Lakshmi, Rs.1,50,000/-
being to complete the agreed sum of Rs.15.00 lakhs towards dowry and
Rs.1,00,000/- for jewellery for the bridegroom, I obtained a Demand Draft for
Rs.2,50,000/- bearing No.0717843372 drawn on SBI, Main Branch, Hyderabad on 16th
November 2004 favoring Mrs.G.Swarajya Lakshmi i.e. two days before the marriage
scheduled on 18th November 2004.
5.  I state that the marriage of my daughter with Mr.Rajesh Gutta was performed
as per Hindu rights and traditions on 18th November, 2004 at Jaya Gardens,
Somajiguda, Hyderabad (documents & photographs enclosed) in the most befitting
manner and registered in Court on 20th November, 2004 (document enclosed).
6. Immediately after the marriage Mrs.G.Swarjya Lakshmi demanded that I should
pay an additional sum of Rs.1,50,000/- towards Adapaduchu Katnam at the marriage
venue for his cousin sisters, two of whom were living abroad while the third
sister Mrs.Sashikala residing in India. This amount was paid in cash to
Mrs.Sashikala who attended the wedding.
7.  I state that after the marriage of my daughter she was in India till 27th
November, 2004 and immediately after the marriage, my son-in-law, his mother and
his younger brother started humiliating my daughter with nasty comments for
trivial issues.  On the day of their marriage my son-in-law informed my daughter
that he was offered Rs.50.00 Lakhs as dowry for an Australian alliance but
married my daughter, as she was a U.S. Citizen.
8.  I state that before the marriage Mr.Rajesh was staying at Alabama and my
daughter was employed in Philadelphia, Pennsylvania and both of them had
mutually decided that after the marriage my daughter will continue her job and
commute to Alabama.  In February/March 2005, Mr.Rajesh my son-in-law forced my
daughter to resign her job threatening that he would abandon her and the
marriage if she did not leave the job and move to Alabama.
9. I submit that after my daughter joined him at Alabama, my son-in-law started
demanding for more money on some pretext of the other including purchase of a
flat in Chennai, India.
10. In June 2005 my son-in-law forced my daughter to increase the credit limit
of her credit card and made her transfer 8,000/- US dollars for clearing his
pre-marital debts.  On resistance my daughter was frequently subjected to
physical assault and cruelty.
11. In Sep.2005 when my daughter and my son-in-law came to India for 15 days my
daughter's mother-in-law humiliated, abused and insulted her and most of the
times she was put under house-arrest.
12.     When my daughter returned to U.S. on 25th Sep.2005 along with her husband
she was in nervous wreck condition on account of the continuous harassment by
her husband and mother-in-law.  My daughter came to our house on 30th Sep. 2005
in order to regain normally and requested her husband to come over to
Philadelphia to sort out the issues but he refused. The conduct of my son-in-law
and his close relatives namely. Mrs. G. Swarajya Lakshmi, Mr.Rama Chandra Rao
and Mrs. Parvathi resulted in my daughter going into a state of depression,
which drove her to a suicidal mood on several occasions.
13.     On 14th Oct.05 my son-in-law came to my house, apologized for his cruel
behavior and actions and made a firm commitment that he would change his
behavior towards my daughter. It was a great news for all of us and my daughter
showed her willingness to join her husband in the 1st week of Nov'2005.
14. All of us went to Alabama on 4th Nov.2005 but my son-in-law was not present
at the house. To my daughter's surprise she found an envelope containing a
credit card in her name, which she had never applied. On enquiry she came to
know that her husband had obtained a credit card in her name using her social
security number and 5,000/- U.S. dollars had already been withdrawn through the
said card.  This act of my son-in-law was nothing but an identity-theft and
fraud. Anticipating further fraudulent transactions by her husband my daughter
alerted the Credit Card Bureau.
15. Immediately after we returned from Alabama my son-in-law rang to my daughter
and requested her to join him.  Smelling a foul-play of being killed she did not
go.
16. We came to know through reliable sources that my son-in-law has been
planning to get married again though his marriage with my daughter was still
subsisting. This was confirmed when we checked his profile on websites of two
reputed marriage bureaus (Bharat Matrimonial & Kaakateeya Matrimonial)
(documents enclosed) wherein he had renewed his profile for marriage on 22nd
Oct.2005, claiming himself to be a 27 year old eligible bachelor, which is
nothing but clear case of attempting to commit bigamy.
17.     Simultaneously my son-in-law started making false accusations
assassinating my daughter's character and filed for divorce in December 2005.
The above acts had a severe effect on my daughter's physical and emotional
condition due to which she went into a state of acute depression.
18. The present miserable state of my daughter is because of the greed of my
son-in-law and his parents in demanding additional dowry for monetary gains and
continued harassment and mental & physical torture by the above said persons.
19. We have recently come to know through reliable sources that my Son-in-law
Mr.Rajesh Gutta is getting married again, scheduled to be held in USA in the
first week of August'2006.
20. I also bring to your kind notice that my daughter's mother-in-law
Smt.Swarajya Lakshmi Gutta, presently staying in Chennai, will leave for USA in
the early hours of Tuesday the 1st August 2006 to attend her elder son's
marriage.  We are also informed that the younger brother of my son-in-law will
also reach USA from London by the time of the marriage.
I state that I have come to Hyderabad only to register this complaint as the
marriage was performed as per Hindu rights and traditions at Hyderabad and also
registered at Hyderabad and therefore I request you to register this FIR and
initiate appropriate actions.  Additional documents / details will be submitted
in due course of time.
Once again I request you to kindly initiate immediate action in preventing Mrs.
Swarajya Lakshmi Gutta, one of the accused, from leaving India from Chennai to
USA.
As the accused are residing in Chennai and in U.S.A for which a specialized
investigating agency is necessary to bring the culprits to book, therefore, I
request you to take necessary action against the following persons.........."

On the basis of the said complaint, the Investigating Officer registered FIR and
examined the witnesses.  The statement of L.W.1 who is the complainant herein is
reproduction of the complaint.  The aggrieved party, wife of the complainant, is
not examined by the Investigating Officer as envisaged under the provisions of
the Code of Criminal Procedure.  It is stated in the charge sheet that he has
contacted the said witness and she confirmed the contents of the complaint, but
he has not recorded any statement by examining her personally and also the
Investigating Agency relied on the statement forwarded by the said witness
attested by a notarized public.  This court is of the view that the said
procedure and reliance on the statement is not legally acceptable.  The reading
of Section 162 Cr.P.C. runs as follows:
   Section 162.  Statements to police not to be signed: Use of statements in
evidence:-
1) No statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any record thereof, whether in
a police diary or otherwise, or any part of such statement or record, be used
for an purpose, save as hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when such statement was made;
     Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as aforesaid, any
part of his statement, if duly proved, may be used by the accused, and with the
permission of the Court, by the prosecution, to contradict such witness in the
manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so used, any part thereof may also be used in
the re-examination of such witness, but for the purpose only of explaining any
matter referred to in his cross-examination.
2) Nothing in this section shall be deemed to apply to any statement falling
within the provisions of clause (1) of Section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

It is the admitted case of the respondent that she has forwarded a statement
attested by a notarized public signed by her.  The section specifically prevent
the officer from obtaining signature in the statements recorded under Section
162 Cr.P.C. and also the Section 161 clearly speaks about the manner with which
the investigation be conducted and the statements to be recorded.
Section 161 Cr.P.C. also runs as follows:
        "Examination of witnesses by police - 1) Any police officer making an
investigation under this Chapter, or any police officer not below such rank as
the State Government may, by general or special order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement he
records.

In which it is clearly stated that the police Officer has to question the victim
girl, witnesses and contradict the witnesses and record the same.  In the
present case, the statement of the victim girl is concerned, the investigation
officer stated in the charge sheet that he has contacted her and she confirmed
the contents of the complaint given by the complainant.  This Court is of the
view that the Investigating Officer has to confirm the allegations mentioned in
the complaint with the aggrieved person.  This Court is of the view that the
Officer, who is investigating the case, should record the statement as per the
above said provisions.  The first duty of the Investigating Officer is to find
out the probability and truthfulness of her complaint unless otherwise the
complainant's version appraised by the Investigating Officer with the facts and
circumstances of the case.  Merely recording the statement as stated by the
witnesses cannot be called as investigation.  Investigation includes examination
of the witnesses, confronting the witnesses on the basis of materials collected
by the Investigating Officer and also the version of the person who is aggrieved
because of the said complaint.  Mere reproduction of the complaint without
proper examination cannot be called as statement recorded during investigation.
The entire reading of the complaint and charge sheet, it is evident that the
entire occurrence took place in the United States of America.  The allegations
contained in the complaint also regarding the occurrences in the United States
of America.  Of course, the offence committed by a person, which is punishable
under the law in India, he can be prosecuted for the offence committed abroad.
But, at the same time Section 188 of Cr.P.C. mandates that no court shall take
cognizance except the previous sanction by the Central Government when an
offence is committed outside the jurisdiction of India.

Section 188 of Cr.P.C. reads as follows:
Offence committed outside India:
When an offence is committed outside India---
a) by a citizen of India, whether on the high seas or elsewhere; or
b) by a person, not being such citizen, on any ship or aircraft registered in
India,
he may be dealt with in respect of such offence as if it had been committed at
any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with
the previous sanction of the Central Government.

In such a case, the cognizance taken by the learned Magistrate also bad in law.
Further, on perusal of the complaint and charge sheet, the main allegations are
as follows:
1. The complainant's daughter was humiliated in front of others in U.S.A.;
2. To the surprise of the complainant's daughter, she saw a credit card which is
in the house of the accused for which she has not applied;
3. The husband insisted her to enhance the credit limit for the credit card
which was in her possession;
4. The petitioner in Crl.P.No.2976 of 2009 informed as he is unmarried one and
tried to have another marriage and also he is subscribing in the matrimonial web
site even after the marriage; and
In the last portion of the complaint, it is stated that the petitioner in
Crl.P.No.2976 of 2009 tried to marry another lady and to celebrate the said
marriage, he tried to go to abroad.
And in the said complaint, here and there some references were made regarding
the demand of dowry.  It is well settled that mere demand of dowry will not
attract an offence under Section 498-A IPC.
        Section 498-A IPC runs as follows:
        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 willful
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.
        There are two elements in the above said section which includes the
explanation, which clearly indicates 'cruelty' means by way of harassment
driving a woman to commit suicide or to suffer with injury, second element of
the said section indicates that the harassment should be in connection with
demand of dowry.
On the entire reading of the complaint, the above said ingredients are totally
not attracted, more particularly, the petitioner in Crl.P.No.4921 of 2010
against the mother-in-law of the victim girl.
Further the learned counsel for the respondent is not in a position to inform
why the wife of the petitioner has not lodged the complaint and what prevented
her from lodging a complaint.  Even based on the present complaint, which is in
the nature of hearsay, this Court is of the view that no offence made out as
alleged in the charge sheet.
Hence, the proceedings against the petitioners in C.C.No.507 of 2006 on the file
of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby
quashed.
 With the above observation, both the Criminal Petitions are allowed.  The
miscellaneous petitions, if any, filed along with the criminal petitions shall
stand closed.

ABSENCE OF CHARGE IS NOT FATAL FOR CONVICTION UNDER SEC.306 I.P.C

                                                REPORTABLE

          IN THE SUPREME COURT OF INDIA
         CRIMINAL APPELLATE JURISDICTION

         CRIMINAL APPEAL NO. 590 OF 2005


Narwinder Singh                             ... Appellant

VERSUS

State of Punjab                             ...Respondent



                       JUDGMENT

SURINDER SINGH NIJJAR, J.

    1.   This     appeal   has   been   filed    against   the

         judgment and order dated 6th October, 2004 of

         the    Punjab and Haryana         High    Court at

         Chandigarh in Criminal Appeal No. 406-SB of

         1992 wherein the appellant has been convicted

         under Section 306 Indian Penal Code (`IPC' for

         short) and sentenced to rigorous imprisonment

         for two years and to pay a fine of Rs.1,000/-

         and in default of payment thereof to undergo

         further rigorous imprisonment for one month.


                                                                 1
    2.    We may briefly notice the facts.

Sukhjit Kaur, alias Rani was married to Narwinder Singh

of Village Mehdipur on 30th September, 1984.         A male

child had first been born to the couple and at the time of

the incident, the wife was pregnant a second time.

According to the in-laws of the appellant, they had given

sufficient dowry at the marriage of their daughter to the

appellant. It appears that the appellant and his parents

Daljit Singh and Joginder Kaur remained dissatisfied.

About two months after the marriage, Sukhjit Kaur

informed her mother Gursharan Kaur that her in-laws

were asking her to bring valuable articles such as a

scooter from her parents.         It is also the case of the

prosecution that an additional demand of Rs.5,000/- was

made by Narwinder Singh, in the year 1986, which

amount too was paid by his mother-in-law Gursharan

Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder

Singh,    father   of   Sukhjit   Kaur   was   murdered   by

extremists. After the death of Bhai Davinder Singh, there


                                                               2
was sea-change in the attitude of the appellant and her

parents, and they started maltreating her.      About six

months prior to the fatal incident, there had been a

quarrel between the husband and wife, which was settled

with the intervention of several relatives including Kulbir

Singh and Onkar Singh, PW-5. About ten days prior to

the incident, Sukhjit Kaur went to Onkar Singh's house

in Village Nabipur and informed him that the accused

were demanding Rs.50,000/-. They were saying that her

late father had left enough money for the family and that

she should get her share. Onkar Singh told her that he

would inform Gursharan Kaur, who was then living in

England about the demand and seek instructions from

her.   Unfortunately, on 30th May, 1988, Onkar Singh

came to know about the death of his niece Sukhjit Kaur

(hereinafter referred to as `the deceased'). He alongwith

Gurjit Kaur, sister of the deceased, Hanwant Singh,

Darshan Singh and Mohan Singh went to village

Mehdipur and saw the dead body of Sukhjit Kaur alias

Rani lying in the house. Blood was oozing from her nose.


                                                              3
Onkar Singh, thereafter, lodged a FIR naming the

accused as having been responsible for her death.

Initially, a case under Section 306 IPC was registered

against the accused but, a charge under Section 304-B of

the IPC was ultimately framed by the Court.



3.   In support of its case, the prosecution relied inter-

alia on the evidence of Kulbir Singh (PW-2) and Onkar

Singh (PW-5), both uncles of the deceased, Gursharan

Kaur (PW-6) the mother and Gurjit Kaur (PW-7).        The

sister of Sukhjit Kaur stated that the demands made by

the accused had been satisfied off and on and that the

behaviour of the accused had compelled Sukhjit Kaur to

commit suicide.   The prosecution also relied upon the

evidence of Dr. H.S. Bajwa (PW-3), who on the basis of

the report of the Forensic Science Laboratory opined that

she had died of Organo Phosphorus poisoning. A large

number of documents including some letters allegedly

written by the deceased to her family members and by

them to her were also produced in evidence.


                                                             4
4.   The prosecution case was then put to the accused

and their statements recorded under Section 313 of

Cr.P.C. They denied the allegations levelled against them

and pleaded that as a matter of fact Sukhjit Kaur had

fallen ill as she was pregnant and depressed after the

murder of her father (to whom she had been deeply

attached) and that she had been taken to Oberoi Hospital

by   her    father-in-law    on   seeing    her    condition

deteriorating, and that despite all efforts on the part of

the accused to save her, she had died. The accused also

produced three witnesses in defence, namely Hardev

Singh (DW-1), Jarnail Singh (DW-2) and Pritam Singh

(DW-3), as also certain letters written inter-se the parties.



5.   The trial court held that from the evidence of Kulbir

Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur

(PWs) and the letter Ex.P.1, it appeared that demands for

dowry had been made by the accused from Sukhjit Kaur

time and again and that she had been harassed and thus


                                                                5
compelled to commit suicide.       It further held that the

ingredients of Section 304-B IPC were satisfied on the

presumptions      raised   under   Section   113-B    of    the

Evidence Act with regard to dowry deaths and that the

letters Exs. PA, PB, PC, PD and PE did not in any way

show that the relation between the parties had been

cordial.      The trial court accordingly convicted the

accused for an offence punishable under Section 304-B

IPC,    and    sentenced    them    to   undergo     rigorous

imprisonment           for seven years and to fine and in

default of payment of fine to undergo further rigorous

imprisonment for a specified period.



6.     Aggrieved, against the aforesaid conviction and

sentence, the appellant and his parents filed an appeal

before the Punjab and Haryana High Court.                  Upon

reconsideration of the entire evidence, the High Court

concluded that the deceased had not committed suicide

on account of demands for dowry but due to harassment

caused by the husband, in particular. The appeal was,


                                                                  6
therefore, partly allowed. The High Court acquitted the

parents of the appellant. However, the conviction of the

appellant was converted from one under Section 304-B

IPC to Section 306 IPC.    He was sentenced to undergo

rigorous imprisonment for two years and to pay a fine of

Rs.1,000/- and in default of payment, he has to undergo

further rigorous imprisonment for one month.             The

aforesaid judgment is challenged in the present appeal.



7.   Mr.   Vikram    Mahajan,     learned   senior   counsel

appearing for the appellant submitted that there is no

distinction between the case of the appellant and that of

his parents, who have been acquitted. The High Court

having acquitted the parents, the appellant also could

not have been convicted. He further submitted that this

was a plain and simple case of suicide due to the mental

state of the deceased. He submits that since the murder

of her father by extremists, the deceased had been under

acute   depression   and   she,   therefore,   had   suicidal

tendencies.   Learned senior counsel further submitted


                                                                7
that there is no evidence on the record to show that the

victim had died an unnatural death.         Lastly, it is

submitted that the High Court committed a grave error in

convicting the appellant under Section 306 IPC.      It is

submitted by Mr. Mahajan that the nature of offence

under Section 304-B IPC is distinct and different from

the offence under Section 306 IPC. The basic constituent

of an offence under Section 304-B IPC is homicidal death

(dowry death) and those of Section 306 IPC is suicidal

death and abetment thereof. Furthermore, according to

the learned senior counsel, the nature of evidence

required under both the categories of offences are totally

different.   The appellant was never charged under

Section 306 IPC, nor is there any evidence on the record

to sustain the conviction under Section 306 IPC.



8.   Mr. Kuldip Singh, learned counsel, appearing for

the State of Punjab submits that the appellant is in fact

fortunate being convicted only under Section 306 IPC.

There is overwhelming evidence to prove that the


                                                             8
appellant and his parents had been harassing the

deceased to bring more dowry. He submits that there is

evidence that the wife had been subjected to harassment

on account of dowry immediately after the marriage. The

death occurred within seven years of marriage, therefore,

by virtue of Section 113-B of the Evidence Act, the trial

court had rightly presumed that the appellant and his

parents    had       committed    the   offence    under

Section 304-B IPC.



9.   We have considered the submissions made by the

learned counsel. The High Court, upon close scrutiny of

the evidence, concluded that there was evidence of a

quarrel between the husband and wife about six months

prior to the occurrence, which had been settled with the

intervention of the eldest.   There were complaints that

the deceased did not know how to do any household

work. The in-laws had also complained that she was not

well mannered. Their ill-treatment of the wife escalated

after the murder of her father by extremists. It was at


                                                            9
that stage the husband had started demanding that the

deceased should claim one of the two houses left behind

by her father in Village Nabipur. About ten months prior

to her death, she was actually sent by the appellants to

demand possession of the house. The appellant and his

parents were suspecting that the sister of the deceased,

Gurjit Kaur had taken everything after the death of the

father of the deceased.      The appellant and his parents

were insisting that the house be legally conveyed in the

name of the deceased. However, mother of the deceased

left for England after the first death anniversary of her

husband in May, 1988. The High Court, on examination

of the entire evidence, concluded that the deceased had

not committed suicide on account of demands for dowry

but due to harassment caused by her husband, in

particular.   The deceased had committed suicide by

drinking Organo Phosphorus poison.           In view of the

findings   recorded,   the    High   Court   converted   the

conviction of the appellant from one under Section 304-B

IPC to one under Section 306 IPC.


                                                               10
10.   We do not find much substance in the submission

of Mr. Mahajan that the High Court could not have

convicted the appellant under Section 306 IPC as the

charge had been framed under Section 304-B IPC. On

scrutiny of the entire evidence, the High Court has come

to the conclusion that the deceased had not committed

suicide on account of demands for dowry but due to

harassment caused by her husband, in particular. The

harassment by the appellant had compounded the acute

depression from which the deceased was suffering after

the murder of her father. There was no evidence of any

demand for dowry soon before the death, and there was

no demand whatsoever that the house in question should

be    transferred   to   either   of   the   accused.   Under

Section 304-B IPC, the cruelty or harassment by her

husband or any relative of her husband "for, or in

connection with, any demand for dowry" is a prelude to

the suicidal death of the wife.        Such suicidal death is

defined as `dowry death'. The High Court has recorded a


                                                                11
firm finding that the harassment was not for or in

connection with any demands for dowry.                 But, at the

same time, the High Court has concluded that the wife

committed        suicide    due     to    the   harassment   of   the

appellant, in particular. In such circumstances, the High

Court was, therefore, fully justified in convicting the

appellant under Section 306 IPC.



11.      We    also    do   not   find    any    substance   in   the

submission of Mr. Mahajan that the appellant could not

have been convicted under Section 306 IPC in the

absence of a charge being framed against him under the

aforesaid section. The learned counsel had relied upon

the judgments of this court in the case of Sangaraboina

Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani

Vs. State of Karnataka2. We are of the opinion that the

aforesaid       judgments     are    of    no   assistance   to   the

appellant, in the facts and circumstances of the present

case.      We may, however, notice the observations made
1
    (1997) 5 SCC 348
2
    (2001) 2 SCC 577


                                                                        12
therein. In the case of Sangaraboina Sreenu (supra), it

was observed as follows:

"This appeal must succeed for the simple reason that having
acquitted the appellant of the charge under Section 302 IPC --
which was the only charge framed against him -- the High Court
could not have convicted him of the offence under Section 306 IPC.
It is true that Section 222 CrPC entitles a court to convict a person
of an offence which is minor in comparison to the one for which he
is tried but Section 306 IPC cannot be said to be a minor offence in
relation to an offence under Section 302 IPC within the meaning of
Section 222 CrPC for the two offences are of distinct and different
categories. While the basic constituent of an offence under Section
302 IPC is homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof."

In the present case, both the trial court and the High

Court have held that the deceased had committed

suicide.      Therefore, the nature of the offence under

Sections 304-B and 306 IPC are not distinct and different

categories.



Again in the case of Shamnsaheb M. Multtani (supra),

this court observed:

"18. So when a person is charged with an offence under Sections
302 and 498-A IPC on the allegation that he caused the death of a
bride after subjecting her to harassment with a demand for dowry,
within a period of 7 years of marriage, a situation may arise, as in
this case, that the offence of murder is not established as against
the accused. Nonetheless, all other ingredients necessary for the
offence under Section 304-B IPC would stand established. Can the
accused be convicted in such a case for the offence under Section
304-B IPC without the said offence forming part of the charge?


                                                                        13
19. A two-Judge Bench of this Court (K. Jayachandra Reddy and
G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab1 that if a
prosecution failed to establish the offence under Section 302 IPC,
which alone was included in the charge, but if the offence under
Section 306 IPC was made out in the evidence it is permissible for
the court to convict the accused of the latter offence.

20. But without reference to the above decision, another two-
Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar,
JJ.) has held in Sangaraboina Sreenu v. State of A.P. that it is
impermissible to do so. The rationale advanced by the Bench for
the above position is this:(SCC p.348, para 2)
"It is true that Section 222 CrPC entitles a court to convict a
person of an offence which is minor in comparison to the one for
which he is tried but Section 306 IPC cannot be said to be a minor
offence in relation to an offence under Section 302 IPC within the
meaning of Section 222 CrPC for the two offences are of distinct
and different categories. While the basic constituent of an offence
under Section 302 IPC is homicidal death, those of Section 306
IPC are suicidal death and abetment thereof."

21. The crux of the matter is this: Would there be occasion for a
failure of justice by adopting such a course as to convict an
accused of the offence under Section 304-B IPC when all the
ingredients necessary for the said offence have come out in
evidence, although he was not charged with the said offence? In
this context a reference to Section 464(1) of the Code is apposite:
"464. (1) No finding, sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby".
(emphasis supplied)

22. In other words, a conviction would be valid even if there is any
omission or irregularity in the charge, provided it did not occasion
a failure of justice.

23. We often hear about "failure of justice" and quite often the
submission in a criminal court is accentuated with the said
expression. Perhaps it is too pliable or facile an expression which
could be fitted in any situation of a case. The expression "failure of
justice" would appear, sometimes, as an etymological chameleon



                                                                         14
(the simile is borrowed from Lord Diplock in Town Investments Ltd.
v. Deptt. of the Environment). The criminal court, particularly the
superior court should make a close examination to ascertain
whether there was really a failure of justice or whether it is only a
camouflage."


We are of the considered opinion that the aforesaid

observations do not apply to the facts of the present case.

The High Court upon meticulous scrutiny of the entire

evidence on record rightly concluded that there was no

evidence to indicate the commission of offence under

Section 304-B IPC. It was also observed that the

deceased had committed suicide due to harassment

meted out to her by the appellant but there was no

evidence on record to suggest that such harassment or

cruelty was made in connection to any dowry demands.

Thus, cruelty or harassment sans any dowry demands

which drives the wife to commit suicide attracts the

offence of `abetment of suicide' under Section 306 IPC

and not Section 304-B IPC which defines the offence and

punishment for `dowry death'.




                                                                        15
12.    It is a settled proposition of law that mere omission

or defect in framing charge would not disable the Court

from convicting the accused for the offence which has

been found to be proved on the basis of the evidence on

record.    In such circumstances, the matter would fall

within the purview of Section 221 (1) and (2) of the

Cr.P.C. In the facts of the present case, the High Court

very    appropriately   converted     the    conviction        under

Section 304-B to one under Section 306 IPC.



13.    In our opinion, there has been no failure of justice

in the conviction of the appellant under Section 306 IPC

by the High Court, even though the specific charge had

not been framed.



14.    Therefore, we see no reason to interfere with the

judgment of the High Court. The appeal is accordingly

dismissed.

                                    ..................................J.
                                    [B.SUDERSHAN REDDY]



                                                                           16
                                  ............................
               .........J. [SURINDER SINGH NIJJAR]



NEW DELHI;
JANUARY 05, 2011.




                                                                  17