Supreme Court of India

Rajeev Kumar vs State Of Haryana on 31 October, 2013

Equivalent citations: AIR 2014 SUPREME COURT 227, 2013 (16) SCC 640, 2013 AIR SCW 6463, AIR 2014 SC (CRIMINAL) 132, 2014 (1) AJR 102, (2014) 1 MARRILJ 215, 2014 (1) DLT(CRL) 223, 2014 (1) JLJR 343, (2013) 132 ALLINDCAS 46 (SC), (2013) 4 CRILR(RAJ) 1298, (2013) 1 JCR 144 (SC), 2013 (132) ALLINDCAS 46, 2013 (13) SCALE 410, 2013 (4) CRIMES 523, (2014) 1 ALLCRILR 199, (2013) 4 JCR 376 (JHA), (2013) 13 SCALE 410, (2014) 57 OCR 141, (2013) 5 MAD LJ(CRI) 523, (2013) 4 RECCRIR 964, (2013) 4 CURCRIR 451

Author:
A. K. Patnaik

Bench:
A.K. Patnaik
,
Gyan Sudha Misra

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 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.

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, 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 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 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 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 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
, IPC.

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. 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.

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
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 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 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 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 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 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 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
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
, 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 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 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 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
, 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
Sections 498A
and
, 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
, 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
, 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
, 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.

18. The appeal is allowed to that extent.

.……………………….J.
(A. K.
Patnaik)

………………………..J.
(Gyan Sudha
Misra)
New Delhi,
October 31, 2013.