VERY IMPORTANT POINT
High Court fell into an error in accepting the dying declaration in the facts of this case. Both the Courts were wrong in sustaining conviction under Section 498A IPC. In any case, High Court was wrong in converting conviction of husband/Appellant from Section 304B to 302 IPC.

Headnote:(i) Indian Penal Code, 1860-Section 304B r/w Sections 34 and 120B-Burn injuries causing death of a young married girl-Her husband in-laws named in FIR-Sessions Judge convicted but High Court acquitted on ground of interpolation of demand of dowry in the FIR-Whether correct ? (Yes).
       Held : Prosecution s definite case in the matter under reference is kerosene was poured in all round and thereafter with lighted match stick the girl was burnt to death alive. The FIR depicts the case of torture in order to attract Section 498A together with ingredients of charge under Section 304B which stands disbelieved by the High Court and we in the contextual facts accept the observations of the High Court pertaining thereto having regard to the fact that the High Court itself has looked into the original FIR and found it to be so interpolated as contended and it is on this score that the High Court acquitted the accused persons under Section 304B. No exception thus can be taken to the order of acquittal of the charge above and we also record our concurrence therewith. (Para 9)
       (ii) Indian Penal Code, 1860-Sections 304B, 498A/34 r/w 120B, 304B/302-Offences under-Evidence Act, 1872-Section 32-Dying declaration of victim married young girl to her mother-No proof of fit condition of victim to make statement-Burn injuries of very high degree-Whether reliable? (No)-Case law discussed.
       Held : Dying declaration in the instant matter thus we must confess raised certain amount of eyebrows and Mr. Verma also with his usual eloquence did put a strong protest in regard thereto. The evidence of this declaration depicts that just before a few minutes of her death, the deceased would make a declaration quietly to the mother naming therein all the three relations along with the husband who poured kerosene to burn her alive. This is not acceptable, more so having regard to the declaration being made to the mother only. In any event, is it conceivable that the husband along with the father-in-law, mother-in-law, brother-in-law would start pouring kerosene together on to the girl - as if each was prepared with a can of kerosene to pour simultaneously - This not only would lead to an absurdity but reliance on such a vague statement would be opposed to the basic tenets of law. Further it is in evidence that the deceased had an extensive burn including her mouth, nose and lips - if any credence is to be allowed to the same, then and in that event, the evidence of the mother about the confession stands belied by itself. Significantly, the doctor s evidence as is available on record would also go a long way in the unacceptability of the evidence of the mother as regards confession. In no uncertain terms the doctor, P.W.8 stated that the death may take place at once and within ten seconds by reason of the extensive nature of the burn and the deceased cannot have survived beyond 10 minutes. Another redeeming feature that the declaration of the deceased was made only to the mother but before the arrival of the mother, the incident was made known to the Police authorities and, in fact, the Police was present when the mother and the brother arrived. It is highly unlikely that the Police will not make any attempt to have a statement by the deceased but if it was otherwise possible immediately on its arrival rather than wait for the mother to arrive. (Para 17)
       Held further : Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. (Para 19)
       (iii) Indian Penal Code, 1860-Sections 304B, 498A/34 r/w 120B, 304B/302-Offences under-Conviction on basis of dying declaration-Investigating Officer not examined-Interpolation in FIR-High Court setting aside conviction and sentence under Sections 304B r/w 34 and 120B IPC so far as in-laws are concerned though maintained the conviction under Section 498A IPC-Converted conviction of husband from Section 304B to 302 on ground of his motive to perform another marriage-Whether correct? (No)-Result-Appeal allowed.
       Held : Significantly, the High Court has set aside the conviction and sentence under Section 304 B read with Section 34 and 120 B of the Indian Penal Code so far as the father-in-law, the mother-in-law and the brother-in-law are concerned though maintained the conviction under 498A. So far as the husband is concerned the High Court converted the charge from 304B to 302 on the ground that the only motive of the murder could be attributed to the husband "who must be interested in committing such offence so that he can perform another marriage" - This is rather a far-fetched assumption without any cogent evidence available on record. Needless to record here that excepting one of the very keenly interested witness, the episode of the applicant being married again does not come from any other witness and the factum of marriage also though stated but devoid of any particulars even as regards the name, the date of marriage etc. It is on record that on arrival of the mother and the brother of the deceased, they found an assembly of large number of mahalla people - but none of them were called to even have a corroboration to this part of the evidence of the accused marrying after the death of the deceased: No independent witness was thought of, though the factum of marriage could have been corroborated by an outside agency. The FIR and the other oral evidence available if read together and full credence is attributed to the same but that itself does not and cannot permit the High Court to come to such an assumption. The assumption is faulty and is wholly devoid of any substance. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and on the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded herein before in this judgment. Significantly, even the dying declaration whatever it is worth, has implicated all the four accused in the manner similar. There is no additional piece of evidence implicating the husband which would permit the High Court to convert the charge of 304B to 302 - True punishment of life imprisonment is available under 304B but that is the maximum available under the Section and for Section 302 the same is the minimum available under the Section. Though discretion to a further award minimum cannot be taken away from the Court. Section 302 is a much more heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband. The factum of the husband, if interested in committing such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to that effect, cannot be said to be an acceptable assumption since without any evidentiary support. The assumption by itself in our view is untenable. (Para 19)
       Held further : Let us, however, scrutinise the evidence in little more greater detail: the mother was informed about the daughter s burn injury at night - the parents arrived in the morning finds the daughter in the bed room with excessive burn injuries without however any mention of the impact on the surroundings - the deceased supposed to have made a statement to the mother that the in-laws and the husband on a conjoint move poured kerosene on to her and threw a lighted match stick so as to cause burn injuries - last of the evidence is that the deceased immediately after such communication passed away without any medical assistance -would this evidence be sufficient to prove the charges even under Section 304B and 498A for apart the conversion thereof to 302 by the High Court? We are afraid the evidence is not sufficient enough to reach an irresistible conclusion of the involvement of the husband as the murderer or even being charged with an offence under Section 304B IPC. We do feel it expedient to record that the conviction and sentence as imposed against the husband-appellant cannot be sustained. The sentence of imprisonment for life thus under Section 302 stands set aside. There is no evidence, convincing, so as to even render the accused appellant suffer such a conviction. There is no challenge by the State as against the order of acquittal of other three accused persons under Section 304B as such we are not inclined to delve into the matter as regards the involvement of the other three persons but the appellant s explanation of stove-burst being the cause of the event cannot be brushed aside. It is undoubtedly a social and heinous crime to have the wife burnt to death but without any proper and reliable evidence, the law court can not by itself also justify its conclusion in the matter of involvement of the husband: Direct evidence may not be available but circumstantial evidence with reasonable probity and without a snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise. What is the evidence available in the matter - To put it shortly, there is none! The factum of burn injury cannot be doubted and the subsequent unfortunate death but that is about all. Why was the Investigating officer not examined - No answers are forthcoming even at this stage - but why not? Is it a lacuna ? We need not dilate thereon but the fact remains there is not a whisper in regard thereto! Coming back to Section 498A the requirement of the statute is acts of cruelty by the husband of a woman or any relative of the husband. The word cruelty in common English acceptation denotes a state of conduct which is painful and distressing to another. The legislative intent thus is clear enough to indicate that in the event of there being a state of conduct by the husband to the wife or by any relative of the husband which can be attributed to be painful or distressing. The same would be within the meaning of the Section. In the instant case there is no evidence whatsoever. It is on this score Mr. Verma contended that there is no sufficient evidence for even the dowry demand far less the evidence of cruelty available on record. No outside person has been called to give evidence and even the witnesses being in the category of interested witnesses also restricted their version to sufferings of burn injury and the purported dying declarations to the matter as noticed herein before - apart therefrom nothing more is available on record to attribute any act or acts on the part of the husband or on the part of husband s relatives - is that evidence sufficient to bring home the charge under Section 498A? The answer obviously cannot be in the affirmative having regard to the non-availability of any evidence in the matter. Significantly however, upon recording of the fact of no dowry demand prior to the date of occurrence the High Court thought it fit to record that charge under Section 498A stands proved and as such passed the sentence. We are however unable to record our concurrence therewith - torture is a question of fact - there must be proper effort to prove that aspect of the matter, but unfortunately not even an attempt has been made nor any evidence tendered to suggest the same excepting the bold interpolated allegations which stand disbelieved and ignored by the High Court, and in our view rightly. On the wake of the aforesaid, charge under Section 498A also cannot be sustained! Both the learned Trial Judge and the High Court are clearly wrong in not considering this aspect of the matter and thus fell into a serious and clear error. (Paras 22 to 26)
       Held finally : In that view of the matter the conviction and sentence stand set aside. The appeal stands allowed accordingly. The appellant is acquitted. The appellant be set at liberty forthwith unless required in any other case. (Para 27)

JUDGMENT

Banerjee, J.-The appeal in question tell the tale of a young girl dying out of burn injuries. Whereas the learned Sessions Judge convicted each of the accused being the husband, the father-in-law, the mother-in-law and the brother-in-law under Section 304B of the Indian Penal Code and 498A/54 together with 120B of the Indian Penal Code and sentenced each of them to undergo imprisonment for life under 304B IPC and a further sentence of 3 years to each of the accused for an offence under 498A IPC and in view of the sentences passed, no need was felt to pass any sentence under Section 120 B IPC. The appeal taken to the High Court stands allowed so far as the appellant Nos. 1, 2 and 4 are concerned upon taking into consideration of the facts under Section 304B read with Section 34 of the Indian Penal Code as also under Section 120B of the Code though, however, the conviction under Section 498A read with Section 34 of the Code was confirmed. Arvind Singh, the husband was however, found guilty for murder of the wife Minta Devi and his conviction under 304 B was converted to Section 302 IPC and was sentenced to undergo imprisonment for life besides maintaining the conviction under Section 498A IPC. It is this conviction and sentence which stands challenged in this appeal.

2. Before adverting to the contentions as raised by the appellant the case of the prosecution can be briefly stated to be as below:

On the basis of the fardbeyan of the informant Phulamati the mother of the deceased, that the appellant alongwith other members of the family on the night of 6/7 March, 1991 had set her daughter on fire and on having such information the informant alongwith PWs 3, 4 and 7 reached the Muhalla and found that the daughter was lying injured due to burn injuries. The First Information Report recorded that the daughter of the informant disclosed that her husband, father-in-law, mother-in-law and other family members forcibly poured kerosene oil on her body and lighted, on account of which her entire body was burnt. The FIR discloses that all the persuasions for removal to a hospital by reason of the severe burn injuries were negatived by the in-laws and having failed to persuade the in-laws, the parents family themselves wanted to take her back to the hospital but the attempt was not successful since the deceased succumbed to her injuries.

3. Incidentally, it may be noted that two specific cases have been made out in the FIR, firstly, the girl was ugly looking (though some of the witnesses have stated that she has been a really good looking girl) and secondly this is a case of bride torture and demand of dowry to the extent of Rs.10,000 and a gold ring and since demands could not be fulfilled the accused persons conspired together and committed the offence which has resulted in the death of the girl.

4. The factual disputes there are not many since the factum of the death and the cause of death being burn injuries are admitted. As regards the dowry death a specific submission was made before the High Court to the effect as below :-

"Mr. Verma, learned counsel appearing for the appellants firstly contended that from a bare reference to the FIR it would appear that the Investigating Officer by making interpolation has added the allegation with regard to demand of dowry. Because the main reason for such an occurrence was that Minta Devi was an ugly lady and, therefore, accused persons used to torture her and ultimately committed her murder. The allegation with regard to demand of dowry etc. was virtually inserted in different hand writing at the end of the fact from which interpolation is apparent. Learned counsel appearing for the State contended that true it is that the allegation with regard to demand of dowry was inserted subsequently, but it cannot be alleged that such an allegation was made after interpolation."

5. The High Court also in no uncertain terms recorded that the statement of Mr. Verma stands justified by reason of interpo

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2001 Supreme(SC) 778

VERY IMPORTANT POINTHigh Court fell into an error in accepting the dying declaration in the facts of this case. Both the Courts were wrong in sustaining conviction under Section 498A IPC. In any case, High Court was wrong in converting conviction of husband/Appellant from Section 304B to 302 IPC.

Cases Referred (6)

VERY IMPORTANT POINT
High Court fell into an error in accepting the dying declaration in the facts of this case. Both the Courts were wrong in sustaining conviction under Section 498A IPC. In any case, High Court was wrong in converting conviction of husband/Appellant from Section 304B to 302 IPC.