Penal Code, 1860 – ss.304-B, 498-A – Case of the prosecution is that victim (since deceased) was married to proforma respondent no.3 – Accused persons used to beat and harass the victim – Due to such ill treatment by her in-laws for dowry the victim came back to her parental house – PW1 (mother of the victim) & PW3 (father) sent her back to matrimonial house – PW1 through the news spread amongst the villagers got to know that the victim was burnt – Trial court acquitted appellant (mother-in-law) and the other accused persons – High Court convicted the appellant u/s.304-B r/w s.498A, IPC and awarded life imprisonment – Held: From the evidence of PW1, prosecution has proved that “soon before the death”, deceased was subjected to cruelty and harassment – When prosecution has established the same and also that within seven years of marriage the victim had died an unnatural death, the presumption u/s.113-B, Evidence Act is to be raised against the appellant that she caused the dowry death – Once the prosecution is able to establish the ingredients of s.304B, IPC, it is for the accused to rebut the presumption – But the accused did not adduce any reliable evidence to rebut the presumption – Further, there were three dying declarations of the victim – Since it has come in evidence that at the time of recording the first two dying declarations, her inlaws were present, it cannot be said that the statement was recorded voluntarily and without fear – During the third dying declaration, parents of the victim had come and she gave the statement without any fear – Said statement refers to the incident and the manner in which it had occurred – Indicator to the truthfulness of such statement is that the deceased only mentioned about the appellant who indulged in the act of pouring kerosene and setting her on fire – She did not implicate her husband nor her father-in-law who was in the house – Conviction of the appellant is affirmed – However, sentence of imprisonment for life is altered to rigorous imprisonment for seven years including the period of sentence already undergone by the appellant – Fine as imposed and default sentence is sustained – Evidence Act, 1872 – s.113-B.
Penal Code, 1860 – s.304-B – Conviction under – Essentials to be satisfied – Discussed.
Penal Code, 1860 – s.304-B – Quantum of sentence – Appellant convicted u/s.304-B – Awarded life imprisonment – Held: Minimum sentence provided is seven years but it may extend to imprisonment for life – In Hem Chand v. State of Haryana reported as [1994] 4 Suppl. SCR 295, Supreme Court held that while imposing the sentence, awarding extreme punishment of imprisonment for life u/s.304-B should be in rare cases and not in every case – In view of mitigating factors in present case, like appellant’s age, contribution required by her to the family, while husband is also aged, and further taking into consideration all other circumstances, sentence of imprisonment for life is altered to rigorous imprisonment for seven years including the period of sentence already undergone.
Partly allowing the appeal, the Court
HELD : 1.1 From the evidence of PW-1, prosecution has proved that “soon before the death”, deceased was subjected to cruelty and harassment. When prosecution has established that deceased was subjected to dowry harassment “soon before the death” and that within seven years of marriage deceased had died an unnatural death, the presumption under Section 113-B of the Evidence Act is to be raised against the appellant that she caused the dowry death. Once the prosecution is able to establish the ingredients of Section 304B IPC, it is for the accused to rebut the presumption. But the accused have not adduced any reliable evidence to rebut the presumption. The evidence of DW-1 and DW-2 relating to the incident will not be sufficient when the incident is viewed keeping in perspective the evidence of prosecution relating to the demand for dowry preceding the actual incident. In fact, when the deceased was shifted from Kota hospital, Srinagar to Dehradun hospital, PW-1 tried to accompany them but the accused refused to take PW-1 along. Not informing about the incident and refusal of the appellant and other accused to take PW-1 along with them to the hospital, are strong circumstances against the appellant. The evidence of PW1 would disclose that when she first went to the Hospital in Srinagar, she found that the deceased was surrounded by her husband and inlaws while PW1, the mother of the deceased was not allowed to interact with her daughter. It is in that circumstance the said declarations dated 06.02.08 and 07.02.08 were recorded. Firstly, the statement dated 06.02.08 was not recorded by a Competent Authority or an Officer but is recorded by the so-called Panchayat in the manner to aid the accused. Insofar as the second dying declaration dated 07.02.08 it is no doubt true that it has been recorded after a communication being addressed to the Tehsildar and after being certified by the doctor that the deceased was mentally fit to make the declaration. Though the said requirements are satisfied, the surrounding circumstances in which the statement was recorded while she was under the control of her in-laws. Such statements relied on by the appellant would not inspire confidence in the Court. In addition, it is noticed that the same is in the form of question and answer which could also be out of context depending on the manner in which the questions were put. As noted in the evidence of PW1, the mother of the deceased, she was not allowed to accompany the deceased when she was shifted to Doon Hospital. However, she subsequently went there and was able to interact with her daughter and in that circumstance after about a week from the incident the declaration was recorded on 13.02.08 after being certified by the doctor about the deceased being conscious and fit to make the statement. The said statement refers to the incident and the manner in which it had occurred. The indicator to the truthfulness of such statement is that the deceased had only mentioned about the appellant i.e., the mother-in-law who had indulged in the act of pouring kerosene and setting her on fire. She had not implicated her husband nor her father-in-law who was in the house but has stated that her father-in-law was sitting in another room having her daughter on his lap and has in fact stated that when she started crying, her father-in-law came there and he extinguished the fire. If it was a case of false implication, there was no reason for the deceased to have been so specific insofar as the act of causing the death without naming the other members of the family when all of them were involved in the act of demanding dowry and was complaining earlier about the harassment meted out by them. In such circumstance, the reliance placed on the dying declaration dated
13.02.08 is justified. [Paras 19-21] [165-H; 166-A-H; 167-A-D]
1.2 On an independent consideration, the dying declaration dated 13.02.08 is reliable. The said dying declaration was recorded by the Additional Tehsildar who was examined as PW5. He stated with regard to the memo received from the hospital and having met the medical officer he recorded the statement of the deceased who was lying with burn injuries in the emergency ward. The validity of the statement so recorded, therefore, stands established. The High Court having examined the matter threadbare has arrived at its conclusion in recording the conviction in the manner as it has done which is justified and does not call for interference. [Paras 22, 23] [167-F-G; 168-B-D]
Nallam Veera Stayanandam & Ors. v. The Public
Prosecutor, High Court of A.P. (2004) 10 SCC 769 ; Ashabai & Anr. v. State of Maharashtra (2013) 2 SCC
224 : [2013] 1 SCR 115 ; State of Karnataka v. Suvarnamma & Anr. (2015) 1 SCC 323 – referred to.
1.3 In the instant case keeping in view the age of the appellant and also the contribution that would be required by her to the family, while husband is also aged and further taking into consideration all other circumstances, the sentence as awarded by the High Court to the appellant herein is liable to be modified. In the result the following: (i) The conviction of the appellant recorded by the High Court under Section 304-B IPC and Section 498-A IPC through its judgement dated 29.06.17 is upheld and affirmed; (ii) The sentence ordered by the High Court through its order dated 10.07.17 is modified and the sentence of imprisonment for life is altered by ordering the appellant to undergo rigorous imprisonment for a period of seven years which shall include the period of sentence already undergone by the appellant. The fine as imposed and the default sentence is sustained. [Para 25] [168-F-H; 169-A-B]
Hem Chand v. State of Haryana (1994) 6 SCC 727 : [1994] 4 Suppl. SCR 295 – relied on.
Sanjay Kumar Jain v. State of Delhi (2011) 11 SCC
733 : [2010] 14 SCR 1135 ; Kans Raj v. State of Punjab and Others (2000) 5 SCC 207 : [2000] 3 SCR 662 ; Smt Shanti and Another v. State of Haryana (1991) 1 SCC 371 : [1990] 2 Suppl. SCR 675 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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