http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

CASE NO.:

Appeal (crl.) 887 of 1998

PETITIONER:

ARVIND SINGH

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 26/04/2001

BENCH:

Umesh C. Banerjee & K.G. Balakrishnan

JUDGMENT:

BANERJEE,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The appeal in question tell the tale of a young girl

dying out of burn injuries. Whereas the learned Sessions

Judge convicted each of the accused being the husband, the

father-in-law, the mother-in-law and the brother-in-law

under Section 304 B of the Indian Penal Code and 498A/34

together with 120B of the Indian Penal Code and sentenced

each of them to undergo imprisonment for life under 304B IPC

and a further sentence of 3 years to each of the accused for

an offence under 498A IPC and in view of the sentences

passed, no need was felt to pass any sentence under Section

120 B IPC. The appeal taken to the High Court stands

allowed so far as the appellant Nos.1,2 and 4 are concerned

upon taking into consideration of the facts under Section

304 B read with Section 34 of the Indian Penal Code as also

under Section 120B of the Code though, however, the

conviction under Section 498A read with Section 34 of the

Code was confirmed. Arvind Singh, the husband was however,

found guilty for murder of the wife Minta Devi and his

conviction under 304 B was converted to Section 302 IPC and

was sentenced to undergo imprisonment for life besides

maintaining the conviction under Section 498A IPC. It is

this conviction and sentence which stands challenged in this

appeal.

Before adverting to the contentions as raised by the

appellant the case of the prosecution can be briefly stated

to be as below: On the basis of the fardbeyan of the

informant Phulamati the mother of the deceased, that the

appellant alongwith other members of the family on the night

of 6/7 March, 1991 had set her daughter on fire and on

having such information the informant alongwith PWs 3,4 and

7 reached the Muhalla and found that the daughter was lying

injured due to burn injuries. The First Information Report

recorded that the daughter of the informant disclosed that

her husband, father-in-law, mother-in-law and other family

members forcibly poured kerosene oil on her body and

lighted, on account of which her entire body was burnt. The

FIR discloses that all the persuasions for removal to a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

hospital by reason of the severe burn injuries were

negatived by the in-laws and having failed to persuade the

in-laws, the parents family themselves wanted to take her

back to the hospital but the attempt was not successful

since the deceased succumbed to her injuries.

Incidentally, it may be noted that two specific cases

have been made out in the FIR, firstly, the girl was ugly

looking (though some of the witnesses have stated that she

has been a really good looking girl) and secondly this is a

case of bride torture and demand of dowry to the extent of

Rs.10,000 and a gold ring and since demands could not be

fulfilled the accused persons conspired together and

committed the offence which has resulted in the death of the

girl.

The factual disputes there are not many since the factum

of the death and the cause of death being burn injuries are

admitted. As regards the dowry death a specific submission

was made before the High Court to the effect as below:-

Mr. Verma, learned counsel appearing for the

appellants firstly contended that from a bare reference to

the FIR it would appear that the Investigating Officer by

making interpolation has added the allegation with regard to

demand of dowry. Because the main reason for such an

occurrence was that Minta Devi was an ugly lady and,

therefore, accused persons used to torture her and

ultimately committed her murder. The allegation with regard

to demand of dowry etc. was virtually inserted in different

hand writing at the end of the fact from which interpolation

is apparent. Learned counsel appearing for the State

contended that true it is that the allegation with regard to

demand of dowry was inserted subsequently, but it cannot be

alleged that such an allegation was made after

interpolation.

The High Court also in no uncertain terms recorded that

the statement of Mr. Verma stands justified by reason of

interpolation on the First Information Report. The High

Court also came to the conclusion that there is no evidence

whatsoever that prior to the date of occurrence, there was

any demand for dowry by the accused persons and it is on the

basis of the aforesaid the High Court set aside the

conviction and sentence of Janardan Singh, Lilawati Devi and

Navin Kumar Singh under Section 304 B read with 34 of the

Indian Penal Code as also under 120B of the Indian Penal

Code. The conviction of 498A however, read with Section 34

was confirmed and the bail bonds granted in favour of the

three accused noticed above were directed to be cancelled

and they were ordered to be taken into custody forthwith for

serving out the remaining sentences. As regards Arvind

Singh the husband, the High Court came to the conclusion

that his conviction ought to be converted from Section 304B

to 302 of the Indian Penal Code and sentenced him to undergo

imprisonment for life besides the conviction and sentence of

3 years under Section 498A of the IPC. In the result the

criminal appeal was partly allowed so far as the appellant

Nos. 1,2 and 4 were concerned but appellant No.3 being the

husband (Arvind Singh) subject to the modification of

conviction was dismissed and hence the appeal before this

Court by the grant of special leave.

Burn injuries are normally classified into three

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

degrees. The first being reddening and blistering of the

skin only; second being charring and destruction of the

full thickness of the skin; third being charring of the

tissues beneath the skin, e.g. fat, muscle and bone.

Be it noted here that if the burn is of a distinctive

shape a corresponding hot object may be identified being

applied to the skin and thus abrasions will have distinctive

patterns but in the event burn injury is a cause of death

60% cases of septicaemia and 34% cases are of

bronchopneumonia. Where infection was by Pseudomonas

pyocyanea, spread to unburnt skin with ulceration may occur,

and internal infection by this organism is especially liable

to damage the walls of blood vessels. Gram-negative shock

may also occur. The external examination in the normal

cases are found in the body being removed from a burnt

building and in the event of so removal the cause of death

would be inhalation of fumes rather than septicaemia as

noticed above. In the event the body is not removed from

the room and the same remains in situ an examination of the

scene must be attempted, as with any other scene of

suspicious death, note being taken as regards the position

of the body, clothes remaining if any and identifiable

objects in the room and so on. The examination of the burns

is also directed to ascertain their position and depth, as

to whether they were sustained in life or not, and whether

their situation gives any indication of the path taken by

the flames or the position of the body when the fire started

if the body is very severely burnt then all the skin surface

may be destroyed, even sometimes make it rather difficult

for identification of the body. A body that is badly burnt

assume the appearance known as pulgilistic attitude and

this is due to heat stiffening and contraction of the

muscles, causing the arms to become flexed at the elbows and

the hands clenched, the head slightly extended and the knees

bent. The appearance resembles the position adopted by a

person engaged in a fight and has led on occasion to

suspicion that death has occurred during some violent crime.

In fact, of course, the body will assume this position when

the fire started. The other aspect of the burn injury is

the heat ruptures may be produced. These are splits of the

skin, caused by contraction of the heated and coagulated

tissues, and the resultant breaches look like lacerated

wounds. They are usually only a few inches, but may be upto

1 or 2 ft in length. Normally they lead to no difficulty in

interpretation, since they only occur in areas of severe

burning, and normally over fleshy areas of the body, like

calves and thighs, where lacerations are uncommon. However,

when they occur in the scalp they may cause greater

difficulties. They can usually be distinguished from wounds

inflicted before the body was burnt, by their appearance,

position in areas of maximum burning and on fleshy areas,

and by the associated findings on internal examination.

(See in this context Taylors Medical Jurisprudence)

Although shock due to extensive burns is the usual cause

of death, delayed death may be due to inflammation of the

respiratory tract caused by the inhalation of smoke. Severe

damage, at least to the extent of blistering of the tongue

and upper respiratory tract, can follow the inhalation of

smoke.

Prosecutions definite case in the matter under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

reference is kerosene was poured in all round and thereafter

with lighted match stick the girl was burnt to death alive.

The FIR depicts the case of torture in order to attract

Section 498A together with ingredients of charge under

Section 304B which stands disbelieved by the High Court and

we in the contextual facts accept the observations of the

High Court pertaining thereto having regard to the fact that

the High Court itself has looked into the original FIR and

found it to be so interpolated as contended and it is on

this score that the High Court acquitted the accused persons

under Section 304B: No exception thus can be taken to the

order of acquittal of the charge above and we also record

our concurrence therewith.

The High Court however, has not delved into the issue of

non-examination of Investigating Officer. We are at a loss

to find such an omission on the part of the High Court on

such a vital issue.

Mr. Verma, the learned senior counsel appearing in

support of the appeal contended that conversion of charge

under Section 304B to 302, cannot by stretch be maintained.

It has been contended that the Court having recorded a

finding that the demand for dowry was interpolated and

inserted in the FIR, virtually in a different handwriting,

which was done subsequently it is submitted that, it is

unsafe to rely on the informant PW5 and the Prosecution case

is fit to be rejected outright, more so, when the

Investigating Officer has been kept out of court. Mr.

Verma contended that since the prosecution failed to prove

the charges against any of the accused and that the

conviction and sentence under the aforesaid charges

including that of the appellant having been set aside, the

conviction of the appellant under Section 302 IPC is bad in

law and untenable. The charge under Section 302 IPC is a

major charge and it entails more severe and greater

sentence, being death or imprisonment for life and fine,

whereas in a charge under Section 304B, there is

imprisonment for 7 years which may extend upto life

imprisonment and in that case the court having set aside the

conviction under Section 304B read with 34 and 120B IPC, it

is neither open nor permissible to punish the accused under

Section 302 IPC which in all material particular amounts to

enhancement of sentence and inflicting greater punishment

unless the petitioner is given an opportunity to show cause

without which the court shall not inflict greater punishment

[refer to Section385 Cr.P.C.]. Mr. Verma contended here

again when a distinct offence under Section 302 IPC is made

out, charge should have been framed and read out to the

accused appellant [refer Section 216 Cr.P.C.] to avoid

prejudice and in that case the circumstances brought in

evidence should be put to accused in his examination under

Section 313 of the Cr.P.C. which has not been done causing

serious prejudice in defence. In any event Mr. Verma

contended that the evidence on record does not justify such

a conversion of charge There is therefore neither any

legal nor even any evidentiary support to such a conversion.

The High Court in introducing Section 302 in place of

Section 304B, it has been submitted not only committed a

grave error of law but proceeded totally against even the

entire tenor of the evidence on record. Criminal

jurisprudence does not warrant such a conversion on facts of

the matter under consideration.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

Turning attention on to the dying declaration be it

noticed at this juncture that the deceased was supposed to

have spoken to the mother that there was a conjoint effort

of all the accused to pour kerosene on all her body and lit

the fire The burn injury resulting therefrom has caused

her life to death. Prosecution thus treated the same as a

dying declaration.

Though the earlier view of this Court in Ramnaths case

[Ram Nath Madhoprasad & Ors. v. State of Madhya Pradesh:

AIR 1953 SC 420] stands overruled by a five-Judges judgment

in the case of Tarachand Damu Sutar v. State of Maharashtra

[AIR 1962 SC 130] but there is no denial of the fact that

dying declaration ought to be treated with care and caution

since the maker of the statement cannot be subjected to any

cross-examination. The same is the view taken in a case

reported in AIR 1976 SC 2199 [Munnu Raja and Another v.

State of Madhya Pradesh] wherein this Court stated:

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 subjected 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. Thus Court

must not look out for corroboration unless it comes to the

conclusion that the dying declaration suffered from any

infirmity by reason of which it was necessary to look out

for corroboration.

In the same year this Court in the case of K.

Ramachandra Reddy & Anr. V. The Public Prosecutor [AIR

1976 SC 1994] observed:

The dying declaration is undoubtedly admissible under

Section 32 and not being a statement on oath so that its

truth could be tested by cross- examination, the Courts have

to apply the strictest scrutiny and the closest

circumspection to the statement before acting upon it.

While great solemnity and sanctity is attached to the words

of a dying man because a person on the verge of death is not

likely to tell lies or to concoct a case so as to implicate

an innocent person, yet the Court has to be on guard against

the statement of the deceased being a result of either

tutoring prompting or a product of his imagination. The

Court must be satisfied that the deceased was in a fit state

of mind to make the statement after the deceased had a clear

opportunity to observe and identify his assailants and that

he was making the statement without any influence or

rancour. Once the Court is satisfied that the dying

declaration is true and voluntary it can be sufficient to

found the conviction even without any further corroboration.

A dying declaration which has been recorded by a

competent Magistrate in the proper manner, that is to say,

in the form of question and answer and, as far as

practicable, in the words of the maker of the declaration,

stands on a much higher footing than a dying declaration

which depends upon oral testimony which may suffer from all

the infirmities of human memory and human character. In

order to test the reliability of a dying declaration, the

Court has to keep in view the circumstances like the

opportunity of the dying man for observation, for example,

whether there was sufficient light if the crime was

committed at night; whether the capacity of the man to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

remember the facts stated had not been impaired at the time

he was making the statement, by circumstances beyond his

control; the statement has been consistent throughout if he

had several opportunities of making a dying declaration

apart from the official record of it; and the statement had

been made at the earliest opportunity and was not the result

of tutoring by interested parties AIR 1958 SC 22: Rel. on.

Be it noted that the dying declaration herein has not

been effected before any Doctor or any independent witness

but to the mother who is said to have arrived at the place

only in the morning the mother admittedly is an interested

witness: though that by itself would not discredit the

evidence tendered in Court but the fact remains the Doctors

evidence considering the nature of the burn posed a

considerable doubt as to whether such a statement could be

made half an hour before the death of the accused. It is

not that the statement of the unfortunate girl was otherwise

not clear or there was existing some doubt as to the exact

words on the contrary the definite evidence tendered is that

there is clear unequivocal statement from the daughter of

the family that the conjoint efforts of putting kerosene

thereafter with lighted match stick has resulted the burn

injury. The severity of the burn injury and its impact on

the body speaks volume by reason of the death of the

deceased. It is the reliance on such a dying declaration by

the High Court shall thus have to be scrutinised with

certain degree of caution.

Dying declaration in the instant matter thus we must

confess raised certain amount of eyebrows and Mr. Verma

also with his usual eloquence did put a strong protest in

regard thereto. The evidence of this declaration depicts

that just before a few minutes of her death, the deceased

would make a declaration quietly to the mother naming

therein all the three relations along with the husband who

poured kerosene to burn her alive. This is not acceptable,

more so having regard to the declaration being made to the

mother only. In any event, is it conceivable that the

husband along with the father-in-law, mother-in-law,

brother-in-law would start pouring kerosene together on to

the girl as if each was prepared with a can of kerosene to

pour simultaneously This not only would lead to an

absurdity but reliance on such a vague statement would be

opposed to the basic tenets of law. Further it is in

evidence that the deceased had an extensive burn including

her mouth, nose and lips if any credence is to be allowed

to the same, then and in that event, the evidence of the

mother about the confession stands belied by itself.

Significantly, the doctors evidence as is available on

record would also go a long way in the unacceptability of

the evidence of the mother as regards confession. In no

uncertain terms the doctor, P.W.8 stated that the death may

take place at once and within ten seconds by reason of the

extensive nature of the burn and the deceased cannot have

survived beyond 10 minutes. Another redeeming feature that

the declaration of the deceased was made only to the mother

but before the arrival of the mother, the incident was made

known to the Police authorities and, in fact, the Police was

present when the mother and the brother arrived. It is

highly unlikely that the Police will not make any attempt to

have a statement by the deceased but if it was otherwise

possible immediately on its arrival rather than wait for the

mother to arrive. Two recent decisions of this Court may be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

of some assistance the first in point of time is the

decision of a three judge Bench of this Court in the case of

Paparambaka Rosamma and Others v. State of A.P. (1999 (7)

SCC 695) wherein this Court in no uncertain terms observed

that there ought not to be any hesitancy in the mind of the

Court in regard to the truthfulness and voluntary nature of

disclosure of the incident. In Rosammas case one Dr. K.

Vishnupriya Devi has stated in the Court that the injured

was conscious but she has not deposed that the injured was

in a fit state of mind to make a statement. It did come on

record that the girl has sustained 90% burn injuries and it

is in that perspective, this Court held that in the absence

of a medical certification that the injured was in a fit

state of mind at the time of making the declaration, it

would be very much risky to accept the subjective

satisfaction of a Magistrate who opined that the injured was

in a fit state of mind at the time of making a declaration

the medical certification, therefore, was felt to be a

primary element in the matter of dying declaration

unfortunately we do not have any certification of whatsoever

nature, it is only the uncorroborated testimony of the

mother to whom the deceased was supposed to have made the

declaration as noticed above. In paragraph 9 of the Report

in Rosammas case (supra) however, this Court had the

following to state:

9. It is true that the medical officer Dr.

K.Vishnupriya Devi (PW 10) at the end of the dying

declaration had certified patient is conscious while

recording the statement. It has come on record that the

injured Smt. Venkata Ramana had sustained extensive burn

injuries on her person. Dr. P. Koteswara Rao (PW 9) who

performed the post-mortem stated that the injured had

sustained 90% burn injuries. In this case as stated

earlier, the prosecution case solely rested on the dying

declaration. It was, therefore, necessary for the

prosecution to prove the dying declaration as being genuine,

true and free from all doubts and it was recorded when the

injured was in a fit state of mind. In our opinion, the

certificate appended to the dying declaration at the end by

Dr. Smt. K. Vishnupriya Devi (PW 10) did not comply with

the requirement in as much as she has failed to certify that

the injured was in a fit state of mind at the time of

recording the dying declaration. The certificate of the

said expert at the end only says that patient is conscious

while recording the statement. In view of these material

omissions, it would not be safe to accept the dying

declaration (Ex.P-14) as true and genuine and as made when

the injured was in a fit state of mind. From the judgments

of the courts below, it appears that this aspect was not

kept in mind and resultantly they erred in accepting the

said dying declaration (Ex.P-14) as true, genuine and as

made when the injured was in a fit state of mind. In

medical science two stages namely conscious and a fit state

of mind are distinct and are not synonymous. One may be

conscious but not necessarily in a fit state of mind. This

distinction was overlooked by the courts below.

In the similar vein, another three judge Bench of this

Court in Koli Chunilal Savji and another v. State of

Gujarat (1999 (9) SCC 562) observed that in the absence of

the Doctor while recording a dying declaration, the same

loses its value and cannot be accepted. In paragraphs 6 and

7 of the Report, this Court observed:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

6. In view of the rival submissions made at the Bar,

two questions really arise for our consideration:

(1) Whether the two dying declarations can be held to be

true and voluntary and can be relied upon or can be excluded

from consideration for the infirmities pointed out by Mr.

Keswani, appearing for the appellants.

(2) Whether the High Court exceeded its jurisdiction in

interfering with the order of acquittal, recorded by the

learned Sessions Judge.

7. Coming to the first question, the answer to the same

would depend upon the correctness of the submission of Mr.

Keswani, that in the absence of the doctor while recording

the dying declaration, the said declaration loses its value

and cannot be accepted. Mr. Keswani in this connection

relies upon the decision of this Court in the case of

Maniram v. State of M.P. (1994 Supp (2) SCC 539). In the

aforesaid case, no doubt this Court has held that when the

declarant was in the hospital itself, it was the duty of the

person who recorded the dying declaration to do so in the

presence of the doctor and after being duly certified by the

doctor that the declarant was conscious and in his senses

and was in a fit condition to make the declaration. In the

said case the Court also thought it unsafe to rely upon the

dying declaration on account of the aforesaid infirmity and

interfered with the judgment of the High Court. But the

aforesaid requirements are a mere rule of prudence and the

ultimate test is whether the dying declaration can be held

to be a truthful one and voluntarily given. It is no doubt

true that before recording the declaration, the officer

concerned must find that the declarant was in a fit

condition to make the statement in question. In Ravi

Chander v. State of Punjab (1998 (9) SCC 303) this Court

has held that for not examining the doctor, the dying

declaration recorded by the Executive Magistrate and the

dying declaration orally made need not be doubted. The

Court further observed that that the Executive Magistrate is

a disinterested witness and is a responsible officer and

there is no circumstance or material on record to suspect

that the Executive Magistrate had any animus against the

accused or was in any way interested in fabricating the

dying declaration and, therefore, the question of

genuineness of the dying declaration recorded by the

Executive Magistrate to be doubted does not arise. In the

case of Harjit Kaur v. State of Punjab (1999 (6) SCC 545)

this Court has examined the same question and held:

(SCC p.547, para 5)

As regards the condition of Parminder Kaur, the witness

has stated that he had first ascertained from the doctor

whether she was in a fit condition to make a statement and

obtained an endorsement to that effect. Merely because that

endorsement was made not on the dying declaration itself but

on the application, that would not render the dying

declartion suspicious in any manner.

Dying declarations shall have to be dealt with care and

caution and corroboration thereof though not essential as

such, but is otherwise expedient to have the same in order

to strengthen the evidentiary value of the declaration.

Independent witnesses may not be available but there should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

be proper care and caution in the matter of acceptance of

such a statement as trustworthy evidence. In our view

question of the dying declaration to the mother is not worth

acceptance and the High Court thus clearly fell into an

error in such an acceptance. Significantly, the High Court

has set aside the conviction and sentence under Section 304

B read with Section 34 and 120 B of the Indian Penal Code so

far as the father-in-law, the mother-in-law and the

brother-in-law are concerned though maintained the

conviction under 498A. So far as the husband is concerned

the High Court converted the charge from 304 B to 302 on the

ground that the only motive of the murder could be

attributed to the husband who must be interested in

committing such offence so that he can perform another

marriage This is rather a far-fetched assumption without

any cogent evidence available on record. Needless to record

here that excepting one of the very keenly interested

witness, the episode of the applicant being married again

does not come from any other witness and the factum of

marriage also though stated but devoid of any particulars

even as regards the name, the date of marriage etc. It is

on record that on arrival of the mother and the brother of

the deceased, they found an assembly of large number of

mahalla people but none of them were called to even have a

corroboration to this part of the evidence of the accused

marrying after the death of the deceased: No independent

witness was thought of, though the factum of marriage could

have been corroborated by an outside agency. The FIR and

the other oral evidence available if read together and full

credence is attributed to the same but that itself does not

and cannot permit the High Court to come to such an

assumption. The assumption is faulty and is wholly devoid

of any substance. As a matter of fact no special role was

even ascribed to the appellant herein for apart leading any

evidence thereon. Presumptions and assumptions are not

available in criminal jurisprudence and on the wake of the

aforesaid we are unable to lend concurrence to the

assumptions of the High Court as recorded herein before in

this judgment. Significantly, even the dying declaration

whatever it is worth, has implicated all the four accused in

the manner similar. There is no additional piece of

evidence implicating the husband which would permit the High

Court to convert the charge of 304 B to 302 True

punishment of life imprisonment is available under 304 B but

that is the maximum available under the Section and for

Section 302 the same is the minimum available under the

Section. Though discretion to a further award minimum

cannot be taken away from the Court. Section 302 is a much

more heinous offence and unfortunately there is no evidence

of such heinous activities attributable to the husband. The

factum of the husband, if interested in committing such

offence so that he can perform another marriage has not been

put to the witnesses and in the absence of which, assumption

to that effect, cannot be said to be an acceptable

assumption since without any evidentiary support. The

assumption by itself in our view is untenable.

Mr. H.L. Agrawal, learned senior Advocate , however,

emphatically contended that considering the hour of the day

and the factum of the wife being burnt and no other

explanation coming forth, question of the husband escaping

the liability of murder does not and cannot arise. We are

however unable to lend our concurrence to the aforesaid.

While it is true that husband being the companion in the

bedroom ought to be able to explain as to the circumstances

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

but there exist an obligation on the part of the prosecution

to prove the guilt of the accused beyond all reasonable

doubt. Criminal jurisprudential system of the country has

been to that effect and there is neither any departure nor

any escape therefrom.

The defence story of early morning/burst by reason of

warming up of milk from the kitchen has not been accepted as

true and plausible explanation for the injury by either of

the courts but does that mean and imply that necessarily

therefore the husband was guilty of murder The answer

cannot be in the affirmative. As the experience goes this

unfortunate trend has turned out to be a growing menace in

the society and does not warrant any sympathy whatsoever but

that does not however mean non adherence to even the basics

of the law. When the parents arrived the girl was lying on

the bed and without there being any evidence as the state of

the linen, the cot and the surroundings. Is this an

omission without having any impact on the entire prosecution

case?

Let us, however, scrutinise the evidence in little more

greater detail: the mother was informed about the

daughters burn injury at night the parents arrived in the

morning finds the daughter in the bed room with excessive

burn injuries without however any mention of the impact on

the surroundings the deceased supposed to have made a

statement to the mother that the in-laws and the husband on

a conjoint move poured kerosene on to her and threw a

lighted match stick so as to cause burn injuries last of

the evidence is that the deceased immediately after such

communication passed away without any medical assistance

would this evidence be sufficient to prove the charges even

under Section 304B and 498A for apart the conversion thereof

to 302 by the High Court? We are afraid the evidence is not

sufficient enough to reach an irresistible conclusion of the

involvement of the husband as the murderer or even being

charged with an offence under Section 304B IPC.

We do feel it expedient to record that the conviction

and sentence as imposed against the husband-appellant cannot

be sustained. The sentence of imprisonment for life thus

under Section 302 stands set aside. There is no evidence,

convincing, so as to even render the accused appellant

suffer such a conviction. There is no challenge by the

State as against the order of acquittal of other three

accused persons under Section 304B as such we are not

inclined to delve into the matter as regards the involvement

of the other three persons but the appellants explanation

of stove- burst being the cause of the event cannot be

brushed aside. It is undoubtedly a social and heinous crime

to have the wife burnt to death but without any proper and

reliable evidence, the law court can not by itself also

justify its conclusion in the matter of involvement of the

husband: Direct evidence may not be available but

circumstantial evidence with reasonable probity and without

a snap in the chain of events would certainly tantamount to

a definite evidence about the involvement but not otherwise.

What is the evidence available in the matter To put it

shortly, there is none! The factum of burn injury cannot be

doubted and the subsequent unfortunate death but that is

about all. Why was the Investigating officer not examined

No answers are forthcoming even at this stage but why not?

Is it a lacuna? We need not dilate thereon but the fact

remains there is not a whisper in regard thereto! Coming

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

back to Section 498A the requirement of the statute is acts

of cruelty by the husband of a woman or any relative of the

husband. The word cruelty in common English acceptation

denotes a state of conduct which is painful and distressing

to another. The legislative intent thus is clear enough to

indicate that in the event of there being a state of conduct

by the husband to the wife or by any relative of the husband

which can be attributed to be painful or distressing. The

same would be within the meaning of the Section. In the

instant case there is no evidence whatsoever. It is on this

score Mr. Verma contended that there is no sufficient

evidence for even the dowry demand far less the evidence of

cruelty available on record. No outside person has been

called to give evidence and even the witnesses being in the

category of interested witnesses also restricted their

version to sufferings of burn injury and the purported dying

declarations to the matter as noticed herein before apart

therefrom nothing more is available on record to attribute

any act or acts on the part of the husband or on the part of

husbands relatives is that evidence sufficient to bring

home the charge under Section 498A? The answer obviously

cannot be in the affirmative having regard to the

non-availability of any evidence in the matter.

Significantly however, upon recording of the fact of no

dowry demand prior to the date of occurrence the High Court

thought it fit to record that charge under Section 498A

stands proved and as such passed the sentence. We are

however unable to record our concurrence therewith - torture

is a question of fact there must be proper effort to prove

that aspect of the matter, but unfortunately not even an

attempt has been made nor any evidence tendered to suggest

the same excepting the bold interpolated allegations which

stand disbelieved and ignored by the High Court, and in our

view rightly.

On the wake of the aforesaid, charge under Section 498A

also cannot be sustained! Both the learned Trial Judge and

the High Court are clearly wrong in not considering this

aspect of the matter and thus fell into a serious and clear

error. In that view of the matter the conviction and

sentence stand set aside. The appeal stands allowed

accordingly. The appellant is acquitted. The appellant be

set at liberty forthwith unless required in any other case.

1

31