Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 967 OF 2005

Rajeev Kumar ……

Appellant

Versus

State of Haryana …..

Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article

136 of the Constitution against the judgment dated

16.09.2004 of the Punjab and Haryana High Court in Criminal

Appeal No.337-SB of 1992.

Facts:

2. The facts very briefly are that on 26.02.1991 at

11.20 P.M., the Assistant Sub-Inspector of Police of Police

Page 2 Station-City Dabwali, District Sirsa in Haryana, Madan Lal

recorded a statement of Vandana at CHC Hospital, Mandi

Dabwali. She stated that about two years ago, she was

married to the appellant and the appellant used to taunt her

on petty matters and earlier the appellant used to tease her

for dowry and on being fed up with the habits of the

appellant, on 26.02.1991 between 7.00 and 7.30 P.M., she

sprinkled kerosene on her and set herself on fire. The

statement of Vandana was registered as First Information

Report (FIR) by the S.I. of P.S. Dabwali, Kuldeep Singh. Soon

thereafter on 26.02.1991, the Judicial Magistrate, First Class,

R.S. Bagri, recorded a statement of Vandana under Section

164 of the Code of Criminal Procedure, 1973 (for short

‘Cr.P.C.’) in which Vandana reiterated her statement to the

Police. On 27.02.1991 at 2.20 A.M., Vandana died. Post

mortem was carried out on the body of Vandana (hereinafter

referred to as ‘the deceased’) by Dr. S.S. Bansal. The Police

then took up the investigation and submitted a charge-sheet

against the appellant.

2

Page 3 3. On 28.08.1991, the Sessions Court framed a charge

under Section 304B, IPC, against the appellant to which the

appellant pleaded not guilty. At the trial, the prosecution

examined Kedar Nath, who had prepared the scaled plan

(Ext. PA) on the place of occurrence, as PW-1; Dr. R.C.

Chaudhary, Medical Officer, General Hospital, Mandi

Dabwali, who had examined the deceased and found the

burn injuries on her body as PW-2; S.I. Kuldeep Singh of P.S.

Dabwali, who had registered the FIR as PW-3; the landlord of

the house in which the deceased lived with her husband as

PW-4; Niranjan Ram Gupta, the father of the deceased, as

PW-5; Bhupinder Kumar, the uncle of the deceased as PW-6;

Dr. S.S. Bansal, who conducted the post mortem on the body

of the deceased as PW-7; R.S. Bagri, the Judicial Magistrate,

who recorded the statement of the deceased under Section

164, Cr.P.C. as PW-8 and ASI Madan Lal, the Investigating

Officer, as PW-9. The statement of the appellant was

recorded under Section 313, Cr.P.C. In defence, the

appellant examined Ramesh Devra as DW-1; Jagdish Kumar

as DW-2; Nihal Singh, Assistant Chief Medical Officer, Sirsa,

3

Page 4 as DW-3; Dr. Ajay Kumar Gupta, Medical Officer, Civil

Hospital, Sirsa, as DW-4 and Dr. J.L. Bhutani as DW-5. After

considering the evidence and the arguments on behalf of the

parties, the learned Additional Sessions Judge, Sirsa, in his

judgment dated 31.08.1992 held that the prosecution has

been able to prove the charge against the appellant and

accordingly convicted him under Section 304B, IPC.

Thereafter, the learned Additional Sessions Judge heard the

accused on the quantum of sentence and ordered that the

appellant be sentenced to seven years R.I. with a fine of

Rs.2,000/- and in default of payment of fine, to undergo

further imprisonment of six months.

4. Aggrieved, the appellant filed Criminal Appeal

No.337-SB of 1992 before the High Court. After hearing the

appeal, the High Court in the impugned judgment held that

the deceased had indicated in her dying declarations

(Exts.PG and PN) before ASI Madan Lal and the Judicial

Magistrate R.S. Bagri that she was being harassed by her

husband with demands of dowry on account of which she

had sprinkled kerosene on herself before setting herself

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Page 5 ablaze. The High Court further held that the statement of the

deceased in these two dying declarations (Exts. PG and PN)

that she was being harassed for dowry stood corroborated

by the evidence of the father of the deceased (PW-5) and

uncle of the deceased (PW-6). The High Court rejected the

contention raised on behalf of the appellant that the

deceased was not in the medical condition to speak

inasmuch as her larynx and tracheae had been charred by

burns, relying on the testimony of the medical experts Dr.

R.C. Chaudhary (PW-2) and Dr. J.L. Bhutani (DW-5) as well

as the testimony of the ASI Madan Lal (PW-9) and the Judicial

Magistrate R.S. Bagri (PW-8), who had recorded the dying

declarations of the deceased. The High Court accordingly

held that there was no ground to interfere with the orders of

conviction and sentence passed by the trial court and

dismissed the criminal appeal of the appellant.

Contentions of the learned counsel for the parties:

5. Mr. S.B. Upadhyay, learned counsel for the appellant,

submitted that the finding in the impugned judgment that

5

Page 6 the appellant was harassing the deceased for dowry is not

correct inasmuch as PW-4, the landlord of the house in which

the deceased and her husband were living, has stated in his

evidence that he did not hear any sort of disharmony or

fighting between the appellant and the deceased and that

they used to live and lead a normal married life and both of

them were blessed with a daughter, who was aged about six

to seven months. He further submitted that when the

Judicial Magistrate (PW-8) recorded the statement of the

deceased under Section 164, Cr.P.C., Dr. R.C. Chaudhary

(PW-2) was not present, as will be evident from the evidence

of PW-8. He submitted that PW-2, on the other hand, was

the doctor who issued the fitness certificate to the Judicial

Magistrate that the deceased was in a fit state to give the

statement. He referred to the opinion of Dr. S.S. Bansal (PW-

7) to submit that the larynx and tracheae is a voice box

containing vocal cords through which a man speaks and if

they were charred by heat and burns, a person will not be

able to speak. He submitted that DW-2 was present in the

hospital for the whole night on 26.02.1991 and DW-2 has

6

Page 7 stated that the deceased was not in a position to speak

when the alleged dying declarations are said to have been

made. He submitted that the trial court and the High Court,

therefore, were not correct in relying on the dying

declarations of the deceased recorded by the ASI Madan Lal

and the Judicial Magistrate R.S. Bagri for holding the

appellant guilty.

6. Mr. Upadhyay next submitted that on a reading of

the entire evidence of PW-5 (the father of the deceased), it

will be clear that the appellant and the deceased were happy

with each other and this will also be evident from the letters

exchanged between the family members between March

1989 and January 1991 (Exts. DE/2, DE/6, DE/7, DE/9, DE/12,

DE/15, DE/17, DE/18, DE/19, DE/20, DE/21, DE/22 and

DE/23). He submitted that this is, therefore, not a case

where the appellant had made any demand of dowry on the

deceased and had subjected the deceased to any cruelty or

harassment in connection with the demand of dowry soon

before her death and hence the ingredients of the offence

7

Page 8 under Section 304B, IPC, are missing in this case and,

therefore, the appellant could not have been held guilty

under Section 304B, IPC.

7. Mr. Upadhyay cited the decisions of this Court in

Sanjiv Kumar v. State of Punjab [(2009) 16 SCC 487], Durga

Prasad & Anr. v. State of Madhya Pradesh [(2010) 9 SCC 73],

Gurdeep Singh v. State of Punjab & Ors. [(2011) 12 SCC 408]

and Devinder alias Kala Ram & Ors. v. State of Haryana

[2012) 10 SCC 763] in support of his submission that the

offence under Section 304B, IPC, is not made out against the

appellant. He submitted that at the worst the appellant can

be held guilty under Section 306, IPC, for having abetted

suicide by the deceased if the dying declaration is to be

accepted. He argued that the appellant has already

undergone two years imprisonment and is now on bail and

also has a young daughter to take care of and, therefore, the

appellant should not be subjected to further imprisonment

for the offence under Section 306, IPC.

8

Page 9 8. Mr. Vikas Sharma, learned counsel appearing for the

State of Haryana, on the other hand, submitted that the two

dying declarations (Ext. PG and PN) of the deceased are

clear that the appellant used to harass the deceased for

dowry and being fed up with the habits of the appellant, the

deceased sprinkled kerosene oil on herself and set herself

ablaze. He submitted that the evidence of Dr. S.S. Bansal

(PW-7) is clear that one can speak when the larynx and

tracheae are in the process of being charred. He submitted

that even DW-5, the medical expert produced by the

accused in his defence, has admitted in cross-examination

that in case of charring of vocal chords, the patient may be

able to speak and the trial court has relied on this admission

made by DW-5. He submitted that Dr. R.C. Chaudhary has

also deposed that the deceased was fit to make the

statement. He submitted that both these witnesses were

medical experts and were rightly relied on by the trial court

and the High Court to reject the contention of the appellant

that the deceased was not in a fit condition to give the

statements to ASI Madan Lal and the Judicial Magistrate R.S.

9

Page 10 Bagri. Mr. Sharma also relied on the evidence of PW-5 that

the appellant used to give beatings to the deceased and

demand more and more dowry. He submitted that the trial

court and the High Court were therefore right in holding the

appellant guilty of the offence under Section 304B IPC.

9. Mr. Sharma cited the decision of this Court in Bansi

Lal v. State of Haryana [(2011) 11 SCC 359] in which it has

been held that while considering a case under Section 304B,

IPC, cruelty in connection with demand of dowry has to be

proved in close proximity to the time of death because of the

expression “soon before her death” in Section 304B IPC, and

the Court has to analyse the facts and circumstances of each

case leading to the death of the victim and decide if there is

such proximate connection between the act of cruelty in

connection with demand of dowry and death of the woman.

He also cited the decision of this Court in Smt. Shanti and

Another v. State of Haryana [AIR 1991 SC 1226] for the

proposition that once the death of a woman is found to be

unnatural, either homicidal or suicidal, Section 304B, IPC,

has to be attracted.

10

Page 11 Findings of the Court:

10. The first question that we have to decide is whether

the deceased was in a condition to make the dying

declarations (Exts.PG and PN) before ASI Madan Lal and the

Judicial Magistrate R.S. Bagri when her larynx and tracheae

had been affected by burns. PW-2, Dr. R.C. Chaudhary, has

stated in his evidence that on 26.02.1991, on the application

of the Police (Ext.PD), he gave his opinion in Ext.PD/1 to the

effect that the patient was fit to give her statement and this

opinion was given at 10.30 P.M. PW-9, ASI Madan Lal, has

deposed in his evidence that the doctor vide his

endorsement (Ext.PD/1) declared that Vandana was fit to

give her statement and then he recorded the statement of

Vandana (Ext.PG) correctly and after Vandana admitted the

contents of the statement to be correct, she gave her thumb

impression in Ext.PG in token of its correctness. PW-9 has

further stated that at that time Vandana was living and

taking long sigh and she remained conscious at the time of

giving her statement (Ext. PG). PW-9 has also stated that he

11

Page 12 then went to the Judicial Magistrate R.S. Bagri (PW-8) whose

residence was near the hospital and R.S.Bagri accompanied

him to the hospital and recorded the statement of Vandana.

The Judicial Magistrate R.S. Bagri has accordingly deposed

that ASI Madan Lal had approached him in person at his

residence at 10.40 P.M. along with application (Ext.PM) and

he came to the hospital and moved an application (Ext.PM/1)

to the Medical Officer concerned and thereafter he recorded

her statement and at the time of recording the statement,

Dr. R.C. Chaudhary was not present but he had given a

certificate (Ext.PM/2) on the application (Ext.PM/1) that

Vandana was in a fit state to make a statement and she

continued to be so during the making of the statement. It is

thus clear from the evidence of the aforesaid three

witnesses PW-2, PW-8 and PW-9 that at the time the

statements of Vandana were recorded by ASI Madan Lal (PW-

9) and the Judicial Magistrate R.S. Bagri (PW-8), she was in a

fit condition to make the statement. When, however, the

post mortem was carried out on 27.02.1991 by Dr.S.S.

Bansal (PW-7) at 4.00 P.M. he found that the larynx and

12

Page 13 tracheae of the deceased were charred by heat. On

questions being put to him whether a person will be able to

speak when her larynx and tracheae were charred by heat,

PW-7 has clarified that when the larynx and tracheae are

charred, the person cannot speak, but when the larynx and

tracheae are in the process of being charred, the person can

speak. Dr. J.L. Bhutani, DW-5, has given his opinion that if

the vocal chord of larynx is charred, such person may be

able to speak, but not clearly, and it will be difficult to

understand. The opinions of the two medical experts,

therefore, are not in variance of the ocular evidence of PW-2,

PW-8 and PW-9 that Vandana was in a position to speak

when her dying declarations were recorded on the night of

26.02.1991. Hence, the two dying declarations (Ext.PG and

Ext.PN) can be relied on by the Court.

11. The next question which we have to decide is

whether the prosecution has been able to prove beyond

reasonable doubt that the appellant has committed the

offence of dowry death under Section 304B, IPC. The two

13

Page 14 dying declarations are similarly worded. We, therefore,

extract hereinbelow only the dying declaration which was

recorded by the Judicial Magistrate (Ext. PN):

“Statement of Vandana, w/o Rajiv Singla,

age 23 years, occupation house wife, R/o

Dabwali, u/s 164 Cr.P.C.

I was married to Dr. Rajiv Singla 2 years

back. My husband used to get upset on petty

issues. My in-laws lived separately. They are

living after the 6 months of my marriage. My

daughter is of 2 months. Today about 7.30

p.m., in evening I was fed up with activities of

my husband and put on kerosene oil and burn

myself. Earlier my husband used to taunt me

for dowry. Action should be taken against my

husband.

Sd/- R.C. Bangri

RO & AC JMIC

Dabwali, 26-2-91

RTI of Vandana

Identified

Sd/-

Madan Lal, ASI

P.C. City Dabwali,

Dated: 26-2-91”

It will be clear from the contents of the dying declaration

(Ext. PN) that the deceased was fed up with the activities of

her husband and she poured kerosene oil on herself and

burnt herself. What those activities of the appellant were

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Page 15 which prompted her to commit suicide have not been clearly

stated, but she has stated that her husband used to get

upset on petty issues and earlier her husband used to taunt

her for dowry.

12.When, however, we scrutinize the evidence of PW-5,

the father of the deceased, we find that soon before the

death of the deceased, the appellant had subjected the

deceased to cruelty which was not in any way connected

with the demand of dowry. The relevant part of the

evidence of PW-5 is quoted hereinbelow:

“Smt. Vandhana deceased was my daughter. I

had married my daughter Vandhana with Rajiv

Kumar, accused now present in the Court on

28.01.1989 at Kartarpur. Out of her wed lock

with the accused Rajiv Kumar, a female child was

born on 2.7.90. Vandhana deceased and Rajiv

Kumar accused, her husband used to reside/live

in Mandi Dabwali. After marriage, whenever

Vandhana used to come to tell us, she used to

tell me that her husband Rajiv Kumar gives her

beating and demands more and more dowry. We

used to fulfill the demand of Rajiv Kumar accused

in the shape of dowry put forward before us by

my daughter and used to send her back after

advising her that she is to live with her husband

and should try to adjust with him. On 19.2.91

Vandhana came to me at Kartarpur and told me

that two days prior to 19.2.91, Rajiv Kumar

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Page 16 accused her husband gave her merciless beating.

She narrated this to me in the presence of my

wife Smt. Pushpa Rani and Bhupinder Singh my

brother in fact, he is my friend. On the night of

24.2.91, I had received anonymous telephone

call on the telephone no. 242 that Rajiv Kumar

has fled away leaving his minor daughter alone.

On hearing this, my daughter Vandhana got

perturbed and wanted us to leave her at Mandi

Dabwali immediately. On 25.02.91 (25.2.91) we

left Vandhana at Mandi Dabwali. I was

accompanied by my wife Pushpa Rani and

Bhupinder Kumar. On reaching at Dabwali we

found Rajiv Kumar present in his clinic and later

on he came to the house. We told Rajiv Kumar

that he should not repeatedly give beating to

Vandhana. We told him that it was not proper for

him to do so. We also advised our daughter

Vandhana to adjust with her husband and to

remain calm and quiet and not to speak. On

25.2.91 itself after advising Rajiv Kumar and

Vandhana we came back to Kartarpur after

staying at night at Bhatinda. On 27.2.91, I

received a telephonic message that Vandhana

after sprinkling kerosene oil on her body has put

herself fire and that she is dead and no longer

alive.”

From the aforesaid evidence of PW-5, it is clear that the

marriage between the appellant and the deceased took

place on 28.01.1989 and the demand of dowry by the

appellant and the beatings for more dowry was after the

marriage. PW-5 has also stated that on 19.02.1991 the

16

Page 17 deceased came to him at Kartarpur and told him that two

days prior to 19.02.1991, the appellant gave her merciless

beating. PW-5 has, however, not stated that the beating

that the appellant gave to the deceased on 19.02.1991 was

in connection with demand of dowry. One of the essential

ingredients of the offence of dowry death under Section

304B, IPC is that the accused must have subjected a woman

to cruelty in connection with demand of dowry soon before

her death and this ingredient has to be proved by the

prosecution beyond reasonable doubt and only then the

Court will presume that the accused has committed the

offence of dowry death under Section 113B of the Indian

Evidence Act. As this ingredient of Section 304B, IPC, has

not been established by the prosecution, the trial court and

the High Court were not correct in holding the appellant

guilty of the offence of dowry death under Section 304B, IPC.

13. We have perused the decision of this Court in Smt.

Shanti and Another v. State of Haryana (supra) cited by Mr.

Sharma and we find that in the aforesaid case the facts were

17

Page 18 that Smt. Shanti was mother-in-law of the deceased and

Smt. Krishna was another inmate in the matrimonial home in

which the deceased was living and it was alleged that both

Smt. Shanti and Smt. Krishna were harassing the deceased

all the while after the marriage for not bringing a scooter

and television as part of the dowry and she was treated

cruelly. On 26.04.1988 at about 11.00 P.M., the father of the

deceased came to know that the deceased had been

murdered and was cremated by two ladies and he filed a

report accordingly before the police. Both the courts below

held that the two ladies did not send the deceased to her

parents house and drove out the brother and father of the

deceased complaining that a scooter and a television has not

been given as dowry. The evidence of the father, mother

and brother of the deceased was that they were not even

informed soon after the death of the deceased and the

appellants had hurriedly cremated the dead body. In these

circumstances, this Court held that the presumption under

Section 113-B of the Indian Evidence Act that the two ladies

have committed the offence under Section 304B, IPC, was

18

Page 19 attracted. This was, therefore, a case where the evidence

clearly disclosed that the deceased had been subjected to

harassment or cruelty committed by the appellants soon

before her death.

14.We have also examined the decision of this Court in

Bansi Lal v. State of Haryana (supra), cited by Mr. Sharma,

and we find that the facts in that case were that the

appellant Bansi Lal was married to Sarla on 04.04.1988. She

was subjected to cruelty, harassment and demand of dowry

and on 25.06.1991 she died. After investigation of the case,

prosecution filed a charge-sheet against Bansi Lal and his

mother Smt. Shanti Devi and charges were framed against

them under Sections 498A, 304B and 306, IPC, and they

were convicted for the said charges by the trial court. The

High Court, however, acquitted Smt. Shanti Devi, but

convicted Bansi Lal because of demand of dowry and cruelty

in connection with demand of dowry to which the deceased

was subjected to by him. Bansi Lal had made a statement

under Section 313, Cr.P.C. that Sarla was in love with some

other person but she was forced to marry Bansi Lal against

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Page 20 her will due to which she felt suffocated and committed

suicide, leaving a suicide note to that effect. On these facts,

this Court held that once it is shown that soon before her

death the deceased has been subjected to cruelty or

harassment for or in connection with the demand for dowry,

the Court shall presume that such person has caused the

dowry death under Section 113-B of the Evidence Act, and if

the case of the Bansi Lal was that Sarla has committed

suicide, the onus was on him to establish his defence by

leading sufficient evidence to rebut the presumption that he

has not caused the dowry death, but Bansi Lal has failed to

discharge that onus.

15. On the evidence on record, though the appellant is

not guilty of the offence under Section 304B, IPC, he is

certainly guilty of offences of abetment of suicide and

cruelty. Section 113-A of the Indian Evidence Act states as

follows:

“113A. Presumption as to abetment of

suicide by a married woman .-When the

question is whether the commission of suicide by

a woman had been abetted by her husband or

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Page 21 any relative of her husband and it is shown that

she had committed suicide within a period of

seven years from the date of her marriage and

that her husband or such relative of her husband

had subjected her to cruelty, the court may

presume, having regard to all the other

circumstances of the case, that such suicide had

been abetted by her husband or by such relative

of her husband.

Explanation.--For the purposes of this section,

"cruelty" shall have the same meaning as in

section 498A of the Indian Penal Code”

The language of Section 113-A of the Indian Evidence Act

makes it clear that if a woman has committed suicide within

a period of seven years from the date of her marriage and

that her husband had subjected her to cruelty, the court may

presume, having regard to all the other circumstances of the

case, that such suicide had been abetted by her husband.

The Explanation to Section 113-A of the Indian Evidence Act

states that for the purpose of Section 113-A “cruelty” shall

have the same meaning as in Section 498A, IPC. The

Explanation to Section 498A, IPC, defines ‘cruelty’ and

Clause (a) of the Explanation states that cruelty means any

willful conduct which is of such nature as likely to drive a

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Page 22 woman to commit suicide. The dying declaration of the

deceased (Ext. PN) as well as the evidence of PW-5 extracted

above are sufficient to establish that the appellant used to

fight on petty issues and give beatings to the deceased,

which drove the deceased to commit suicide. This is,

therefore, a clear case where the appellant had committed

offences under Sections 498A and 306, IPC.

16. In K. Prema S. Rao and Another, etc. v. Yadla Srinivasa

Rao and Others, etc. [(2003) 1 SCC 217], this Court on

similar facts has held that to attract the provisions of Section

304B, IPC, one of the main ingredients of the offence, which

is required to be established, is that “soon before her death”

she was subjected to cruelty and harassment “in connection

with the demand for dowry” and this ingredient of the

offence was not there in that case. This Court, however, held

that it was not necessary to remit the matter to the trial

court for framing a charge under Section 306, IPC, and the

accused also cannot complain for want of opportunity to

defend the charge under Section 306, IPC, if the facts found

in evidence justify the conviction of the appellant under

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Page 23 Sections 498A and 306, IPC instead of the graver offence

under Section 304B, IPC. In that case, the three-Judge

Bench of this Court held the appellant guilty of the offences

under Sections 498A and 306, IPC instead of the graver

offence under Section 304B, IPC.

17. In this case also, we hold the appellant guilty of

offences under Sections 498A and 306, IPC. Considering the

particular conduct of the appellant which drove the

deceased to commit suicide, we impose a sentence of one

year imprisonment and fine of Rs.1,000/- for the offence

under Section 498A, IPC and impose a sentence of three

years imprisonment and fine of Rs.2,000/- for the offence

under Section 306, IPC, and direct that in case of failure to

pay the fine for either of the two offences, the appellant shall

undergo a further imprisonment for a period of six months.

We make it clear that the sentences of imprisonment for the

two offences will run concurrently. If the appellant has

already undergone the punishment imposed by this

judgment, his bail bonds shall stand discharged.

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Page 24 18.The appeal is allowed to that extent.

.……………………….J.

(A. K. Patnaik)

……………………… ..J.

(Gyan Sudha Misra)

New Delhi,

October 31, 2013.

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