State Of U.P vs Santosh Kumar & Ors

2 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

3 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

4 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

5 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

6 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

7 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

8 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.

9

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.

10

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.

11 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

12 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.

13

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.

14

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;

15 (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

16 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 &

17 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):

18 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.

19

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.

20

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.

21

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

22