Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1199 OF 2001
State of U.P. .. Appellant
Versus
Santosh Kumar .. Respondent
J U D G M E N T
Dalveer Bhandari, J.
1. This appeal is directed against the judgment of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow
dated 2.3.2000 passed in Criminal Appeal No. 281 of 1993.
2. The respondent and other accused were charged under
sections 302/34, 304-B and 498-A of the Indian Penal Code,
1860 (for short, ‘IPC’) and sections 3 and 4 of the Dowry
Prohibition Act, 1961 (for short, ‘the Dowry Act’) read with
section 34 of the IPC.
3. The IInd Additional Sessions Judge, Unnao, in Sessions
Trial No. 483 of 1992, convicted respondent Santosh Kumar
under sections 302 and 498-A and sections 3 & 4 of the Dowry
Act. He was however acquitted under section 304-B IPC. The
IInd Additional Sessions Judge convicted respondents Shiv
Pyari and Prem Narain under sections 498-A IPC and sections
3 and 4 of the Dowry Act. They were however acquitted under
sections 302/34 and 304-IPC.
4. The High Court allowed the appeal filed by the accused
and set aside the conviction and sentence of the accused
respondents imposed by the trial court for the offences for
which they were held guilty and convicted.
5. The appellant State of U.P. aggrieved by the impugned
judgment has filed this appeal under Article 136 of the
Constitution.
6. The State of U.P. has filed this appeal against accused
Shiv Pyari, Prem Narain and Santosh Kumar. The other
accused Shiv Pyari wife of Deo Krishan and Prem Narain s/o
Guru Deen have expired during the pendency of the appeal,
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therefore, the appeal filed by the State of U.P. against them has
abated.
7. In this appeal, we are concerned with the only surviving
accused respondent Santosh Kumar. Brief facts of the case in
nutshell are as under.
8. Deceased Sunita, daughter of Dhani Ram was married to
Ram Chandra on 1.5.1987. At the time of marriage, Dhani
Ram gave dowry to his daughter beyond his capacity, but
unfortunately her in-laws were not satisfied and they harassed
her by regularly demanding dowry in the form of articles and
money. Sunita told her parents repeatedly about the demands
of dowry. Her father Dhani Ram met Prem Narain and Shiv
Pyari and assured them that apart from whatever he had
already given in dowry he would continue giving them
throughout his life, but they should not harass his daughter.
9. According to the prosecution, on 15.3.1992 at about 9.00
a.m., Sunita was beaten by Shiv Piyari, Santosh Kumar and
Prem Narain on account of demand of dowry. Deceased Sunita
told them that there was no use of harassing her everyday for
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dowry and that it would be better if she was finished once for
all. Prem Narain exhorted at Santosh Kumar saying that,
“DAAL DO MITTI KA TAIL JALA DO SALI KO AUR JO 10-20
HAZAR LAGENGE HUM LAGA DENGE” – meaning thereby to
pour kerosene oil and kill her and we would take care of
litigation expenses of ten to twenty thousand to save Santosh
Kumar. Immediately thereafter, Santosh Kumar brought a
container of kerosene oil and poured the same on Sunita and
lit fire and burnt her alive. Deceased Sunita immediately after
the burning episode cried for help and ultimately jumped into a
small water pond to save her life.
10. On hearing the hue and cry, Om Prakash, Chotey Yadav
and Santosh son of Jagdish arrived there and took her out
from the pond. She was alive at that time. Dhani Ram, father
of the deceased, on hearing about the incident came to his
daughter’s house. The investigating officer also reached the
spot and seized the container of kerosene oil, the piece of burnt
dhoti and pieces of broken bangles. He took the same into
custody in the presence of witnesses. After completing the
necessary formalities of the investigation, a charge-sheet was
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filed against the accused persons under sections 302/34, 304B
and 498A of the IPC and sections 3 and 4 of the Dowry Act.
11. The prosecution examined 13 witnesses to prove its case.
PWs 3 and 4, who alleged to have seen the occurrence, did not
support the prosecution case, except the version that the
deceased Sunita had jumped into a water pond and she was
taken out from that pond and at that time accused persons
and the family members of Dhani Ram were present there.
12. According to the prosecution, the death of deceased
Sunita was caused by accused Santosh Kumar in furtherance
of the common intention of all the accused on account of
demand of dowry, while the defence version as set up by the
respondents was a case of accidental fire. According to the
defence version, the deceased Sunita was cooking and
accidentally caught fire and died because of burn injuries.
13. The trial court came to a definite finding that it was a
clear case of murder and not a case of accidental fire.
According to the trial court, Dhani Ram PW1, father of the
deceased, on receiving the information about burning of his
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daughter reached at the place of occurrence. Deceased Sunita
categorically told him that accused Santosh Kumar poured
kerosene oil and set her on fire. She also stated that before
setting her on fire, accused Santosh Kumar and others had
beaten her. She further stated that accused Prem Narain told,
“Pour kerosene oil and set her on fire. I will spend Rupees 10
to 20 thousand required for litigation to defend you (Santosh).
This was construed to be the first dying declaration according
to the prosecution.
14. The second dying declaration is Ext.Ka.16 which was
recorded under section 161 of the Code of Criminal Procedure
(for short, the Cr.P.C.) in the case diary by the Investigating
Officer Shiv Kumar Tyagi PW8. In this dying declaration, it is
stated that a day before the occurrence at about 9 a.m. she
had a quarrel with her mother-in-law because she had refused
to give Rs.20/- demanded by her. That, after some time her
husband’s younger brother, Santosh Kumar, came from
outside and asked her as to what she had been doing in
Bombay, then she replied that he could very well inquire from
Bombay itself. Immediately thereafter he started hitting her by
kicks, fists and blows. At that time, Sunita told him that he
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could finish her forever instead of killing her slowly. Accused
Santosh Kumar immediately thereafter brought kerosene oil in
a container and threw it on her body and set her on fire.
Sunita rushed towards her mother-in-law Shiv Pyari but she
did not save her and, therefore, she rushed towards the water
pond and jumped into it. The villagers tried to save her by
bringing her out of the pond.
15. The third dying declaration is what was stated by
deceased Sunita to the Tehsildar/Magistrate Rajesh Kumar
Shrivastava, PW13. The Tehsildar/ Magistrate was summoned
to record her dying declaration. Dr. S.N.H. Rizvi of the District
Hospital, Unnao gave certificate that he had examined
deceased Sunita and she was in her full senses and her
statement could be recorded and only thereafter her statement
was recorded by the Tehsildar. The said Tehsildar clearly
stated that she was in a fit condition to give her statement.
Deceased Sunita stated to the Tehsildar/Magistrate that she
demanded Rs.20/- from her mother-in-law who refused to give
her Rs.20/-. Thereafter, her brother-in-law Santosh Kumar
came from the outside and asked her, “what were you doing in
Bombay”. She replied, “Go to Bombay and get the matter
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inquired into”. On getting this reply from the deceased,
Santosh Kumar started beating her and her father-in-law also
abused her. On exhortation of Prem Narain, Santosh Kumar
brought a container of kerosene oil and poured the same on
her whole body and set her on fire. In that statement, she
has also stated that she had no dispute with her husband and
Ram Kishore, another brother of her husband. She stated
that her mother-in-law Shiv Pyari, uncle-in-law Prem Narain,
brother-in-law (Devar) Santosh Kumar and elder brother-in-
law (Jeth) Arjun Prasad had been harassing her from the very
beginning. She also stated that her brothers-in-law Santosh
Kumar and Arjun Prasad always used to tell her, “Bring ‘Roti’
(Bread) from your father”.
16. Om Prakash PW2, Chotey Yadav PW3 and Santosh PW4
did not support the prosecution case, the prosecution case
hinges on the statements made by Dhani Ram PW1, Inspector
S.K. Tyagi PW8 and the Tehsildar/Magistrate Rajesh Kumar
Srivastava PW13.
17. The trial court carefully marshalled and analyzed the
entire evidence on record. On the basis of the three dying
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declarations, the trial court found the accused Santosh Kumar
guilty of killing Sunita by pouring kerosene oil and setting her
on fire. The Tehsildar/Magistrate PW13 categorically stated
that deceased Sunita was in her full senses throughout the
recording of her dying declaration.
18. The trial court after analyzing the entire evidence, while
acquitting respondent Santosh Kumar under section 304-B
IPC, convicted him under sections 302 and 498-A IPC and
under sections 3 and 4 of the Dowry Act. Respondents Shiv
Pyari and Prem Narain were convicted by the trial court only
under section 498-A IPC and sections 3 and 4 of the Dowry
Act.
19. The High Court in the impugned judgment observed that
when the State has not filed any appeal against the order of
acquittal under section 304-B IPC, the order of acquittal for
the charge of offence punishable under section 304-B IPC has
become final. The respondents preferred appeal against
conviction under sections 302 and 498-A IPC and sections 3
and 4 of the Dowry Act by the trial court.
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20. The High Court while acquitting the respondents herein
under all the charges observed as under:
“When the charge under section 304-B I.P.C. was
held to have failed, then there was no logic in
convicting the appellants for offences punishable
under sections 3 and 4 of the Dowry Prohibition Act
as well as under section 498-A I.P.C. The trial Court
ought to have acquitted all the appellants for
offences punishable under section 498-A IPC and 3
and 4 of the Dowry Prohibition Act.”
21. This finding of the High Court is palpably wrong and
unsustainable. The ingredients of sections 498-A IPC and
sections 3 and 4 of the Dowry Act are different from the
ingredients of section 304-B IPC. This erroneous
understanding of law has led to entirely erroneous and
unsustainable findings by the High Court. The High Court
was entitled to re-appreciate the entire evidence in appeal, but
in doing so the High Court could not ignore the vital features of
the prosecution evidence. The High Court has given no
reasons for setting aside a well reasoned judgment of the trial
court and acquitted the accused under section 302 IPC. In
this appeal, we are called upon to primarily decide about the
legality of acquittal of the respondent under section 302 IPC.
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22. The entire prosecution case hinges on the three dying
declarations made by the deceased. On careful analysis of
these dying declarations, it leads to only one conclusion that
respondent Santosh Kumar after beating deceased Sunita
poured kerosene oil on her and set her on fire and that she
died because of burn injuries sustained by her. The High
Court unnecessarily gave undue importance to the minor
contradictions in the testimony of witnesses and dying
declarations.
23. The High Court ought to have examined this case in the
proper perspective. The doctor also certified that the deceased
was in a fit mental condition to give statement. The
Tehsildar/Magistrate PW13 also stated the same in his
statement.
24. The basic consistency between the three dying
declarations given to Dhani Ram PW1, the Investigating Officer
PW8 and the Tehsildar/Magistrate PW13 is that the accused
Santosh Kumar brought kerosene oil, poured the same on the
deceased and set her on fire and she died because of the burn
injury. It is the real genesis of all the three dying declarations.
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It must be properly appreciated that the deceased Sunita gave
these dying declarations in a state when she was having acute
pain and minor inconsistencies in one dying declaration with
another should not render the dying declarations void. Dying
declarations must be construed in proper perspective.
25. The veracity of the dying declarations is proved beyond
any shadow of doubt because the deceased specifically did not
level any allegation against her husband and her other
brother-in-law Ram Kishore. If she wanted to implicate other
members of the family, she could have also named her brother-
in-law Ram Kishore and husband Ram Chandra. But she
specifically attributed the act of bringing and pouring kerosene
oil on her and setting her on fire only by respondent Santosh
Kumar. The High Court ought to have appreciated this fact in
proper perspective as to why the dying person in all her three
dying declarations named only Santosh Kumar and attributed
act of pouring kerosene oil and setting her on fire to him alone
when there were so many members in the family.
26. The statement of the deceased made to the
Tehsildar/Magistrate PW13 cannot be brushed aside. He was
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totally an independent witness and there was no reason for
him to cook up any false story.
27. Similarly, the statement Ext.Ka.16 made to the
Investigating Officer also seems to be correct, consistent and
corroborated by the other two statements made before the
Tehsildar/Magistrate PW13 and Dhani Ram PW1. The High
Court gravely erred in setting aside a well reasoned judgment
of the trial court and coming to the different findings which are
totally unsustainable on proper analysis of the entire record.
28. In any criminal case where statements are recorded after
a considerable lapse of time, some inconsistencies are bound
to occur. But it is the duty of the court to ensure that the
truth prevails. If on material particulars, the statements of
prosecution witnesses are consistent, then they cannot be
discarded only because of minor inconsistencies. While
appreciating the evidence, the courts must also consider the
fact carefully as to why would the father of the deceased falsely
implicate only one of the members of the family and let go the
real culprit? At that juncture, usual anxiety is to ensure that
the real assailant must be punished.
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29. The court in this case ought to have considered what was
the interest of the Tehsildar/Magistrate to have wrongly
recorded the statement of the deceased. Similarly, when the
statement Ext. Ka 16 recorded by the Investigating Officer gets
full corroboration from the other two dying declarations, there
is no justification in discarding the testimony of the
investigating officer.
30. We have carefully examined all the three dying
declarations. The guilt of the accused Santosh Kumar of
committing murder of the deceased Sunita is fully and clearly
made out. In our considered opinion, no other view is possible
in the light of the three dying declarations. The High Court
erroneously set aside a well reasoned judgment of the trial
court and acquitted the respondent and other accused. The
High Court’s finding that when the charge under section 304-B
IPC could not be proved, then conviction under section 498-A
IPC and sections 3 and 4 of the Dowry Act also cannot be
sustained. This approach of the High Court is wholly
erroneous and unsustainable.
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31. In order to correctly appreciate the legal position, it is
necessary to examine ingredients of these sections. Section
304-B IPC reads as under:
“ 304-B. Dowry death.- (1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to
cruelty or harassment by her husband or any
relative of her husband for, or in connection with,
any demand for dowry, such death shall be called
‘dowry death’, and such husband or relative shall be
deemed to have caused her death.”
32. On analysis of the section, the following essential
ingredients of section 304-B IPC emerge and they are set out
as under:
“ Essentials
(i) That the accused caused death of a woman;
(ii) that the accused was husband, or any relative
of the husband of that woman;
(iii) death of such woman,
(a) was caused by any burns, or bodily
injury, or
(b) occurred otherwise than under normal
circumstances;
(ii) such death was caused within seven years of
the marriage of that woman;
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(iii) soon before her death such woman was
subjected to cruelty, or harassment;
(iv) the accused had subjected such woman to
such cruelty or harassment for, or in
connection with any demand for dowry.”
33. Section 498-B IPC reads as follows:
“ 498-A. 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.”
34. The following are the essential ingredients of Section 498-
A IPC:
“ Essentials
(i) That there was a married woman;
(ii) that such woman was subjected to cruelty;
(iii) that such cruelty consisted of any willful
conduct of such nature as was likely to drive
such woman – to commit suicide, or to cause
grave injury or danger to her life, limb or
health, whether mental or physical;
harassment of such woman where such
harassment was – with a view to coercing such
woman or any person related to her to meet
any unlawful demand for any property or
valuable security, or on account of failure by
such woman, or any person related to her to
meet the unlawful demand in able and the
woman was subjected to such cruelty by – the
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husband of that woman; or any relative of the
husband of that woman.”
35. The High Court gravely erred in coming to the finding that
once the charge under section 304-B IPC could not be proved,
then conviction under section 498-A IPC and sections 3 and 4
of the Dowry Act also cannot be recorded. In State of
Karnataka v. Balappa 1999 Cri LJ 3064 (Kant), at pages
3068, 3069 and 3070, the court has dealt with in great detail
that even if the charge under section 304-B IPC is not made
out, the conviction under section 498-A IPC can be recorded.
Sections 304-B and 498-A IPC are both distinct and separate
offences. The ‘cruelty’ is a common essential ingredient of both
the offences. Under section 304-B, it is the ‘dowry death’ that
is punishable and such death should have occurred within
seven years of the marriage. In the statute, no such period is
mentioned in section 498-A IPC. The husband or his relative
would be liable for subjecting the woman to ‘cruelty’ any time
after the marriage.
36. The legal position is absolutely clear that a person
charged and acquitted under section 304-B can be convicted
under section 498-A IPC. This court in Smt. Shanti &
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Another v. State of Haryana (1991) 1 SCC 371 has taken the
same view.
37. The demand of dowry is an essential ingredient to attract
section 304-B IPC, whereas under section 498-A IPC the
demand of dowry is not the basic ingredient of the offence.
Therefore, even if there is acquittal under section 304-B IPC,
still conviction under section 498A can be recorded under the
law.
38. Sections 3 and 4 of the Dowry Act read as under:
“ 3 - Penalty for giving or taking dowry - (1) If any
person, after the commencement of this Act, gives
or takes or abets the giving or taking of dowry, he
shall be punishable with imprisonment for a term
which shall not be less than five years, and with
fine which shall not be less than fifteen thousand
rupees or the amount of the value of such dowry,
whichever is more:
Provided that the Court may, for adequate
and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a
term of less than five years.
(2) Nothing in sub-section (1) shall apply to, or in
relation to,-
(a) presents which are given at the time of a
marriage to the bride (without any
demand having been made in that behalf):
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Provided that such presents are
entered in a list maintained in accordance
with the rules made under this Act;
(b) presents which are given at the time of a
marriage to the bridegroom (without any
demand having been made in that behalf):
Provided that such presents are
entered in a list maintained in accordance
with the rules made under this Act:
Provided further that where such
presents are made by or on behalf of (he
bride or any person related to the bride,
such presents arc of a customary nature
and the value thereof is not excessive
having regard to the financial status of
the person by whom, or on whose behalf,
such presents are given.”
“ 4. Penalty for demanding dowry.- If any person
demands, directly or indirectly, from the parents or
other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he
shall be punishable with imprisonment for a term
which shall not be less than six months, but which
may extend to two years and with fine which may
extend to ten thousand rupees:
Provided that the court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of
less than six months.”
39. Section 3 of the Dowry Act deals with penalty for giving
and taking of dowry. The scope and ambit of section 3 is
different from the scope and ambit of section 304-B IPC.
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40. Section 4 of the Dowry Act deals with penalty for
demanding dowry, directly or indirectly, from the parents or
other relatives or guardian of a bride or bridegroom, as the
case may be. The object of section 4 is to discourage the very
demand for property or valuable security as consideration for a
marriage between the parties thereto. Section 4 prohibits the
demand for ‘giving’ property or valuable security which
demand, if satisfied, would constitute an offence under section
3 read with section 2 of the Act.
41. Thus, the ambit and scope of sections 3 and 4 of the
Dowry Act is different from the ambit and scope of section 498-
A IPC.
42. The incorrect understanding of law has led to the
erroneous judgment consequently leading to grave miscarriage
of justice.
43. As far as conviction of respondent Santosh Kumar under
section 302 IPC is concerned, there is no discussion in the
impugned judgment of the High Court. The High Court failed
to find any infirmity in the judgment of the trial court which
persuaded the High Court to set aside the trial court judgment.
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44. All three dying declarations made by the deceased are
totally consistent and lead to only one conclusion that the
respondent Santosh Kumar had poured kerosene oil on the
deceased and lit the fire. The fact is clearly corroborated from
the testimonies of Dhani Ram PW1, the Investigating Officer
Shiv Kumar Tyagi PW8 and the Tehsildar/Magistrate Rajesh
Kumar Shrivastava PW13. The respondent is clearly guilty of
offence under section 302 IPC.
45. The High Court without assigning any cogent reason set
aside a well reasoned judgment of the trial court and acquitted
the respondent under section 302 IPC. The impugned
judgment of the High Court cannot be sustained.
46. This Court has always been slow in reversing the order of
acquittal, particularly in a case where the other view is
possible or plausible. We are fully conscious of our bounden
obligation and duty that we are dealing with appeal against
acquittal by the High Court. Unfortunately, in the instant
case, on proper analysis of all three dying declarations, no
other view is possible and the view taken by the High Court is
perverse and unsustainable in law.
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47. Consequently, this appeal is allowed. The impugned
judgment of the High Court is set aside and that of the trial
court is restored as far as the sentence of the respondent
under section 302 IPC is concerned. The accused Santosh
Kumar is directed to surrender in order to serve out the
remaining sentence.
48. This appeal is accordingly disposed of.
…….…………………….. J.
(Dalveer Bhandari)
…….…………………….. J.
(Harjit Singh Bedi)
New Delhi;
September 3, 2009
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