IMPORTANT POINT
Statements as to “the circumstances of the transaction which resulted in her death” although hearsay, are admissible.
Acts of taunting by the husband soon before death would constitute cruelty.
If the presumption u/s 113B is not rebutted, Courts shall hold the accused guilty of offence u/s 304B.

Headnote:(a) Indian Evidence Act, 1881 – Section 32(1) – Statements made by the deceased before PW-4 and PW-5 about the appellant taunting and demanding a scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to “the circumstances of the transaction which resulted in her death” – These are admissible evidence. (Para 11)
        AIR 1939 PC 47; (1984) 4 SCC 116; (1997) 4 SCC 161 – Relied upon
        (2008)1 SCC 202; 2010(6) SCALE 18; (2008) 8 SCC 395 – Referred
        (b) Indian Penal Code, 1860 – Section 498A r/w section 304B and section 113B, Indian Evidence Act, 1881 – Prosecution has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in connection with demand for dowry – Such acts of taunting by the husband would constitute cruelty – Court shall presume that such person had caused the dowry death. (Paras 13 and 14)
        (1998) 3 SCC 309 – Relied upon
        (c) Indian Penal Code, 160 – Section 304B r/w section 123B, Indian Evidence Act – Accused not rebutting the presumption u/s 113B by examining witnesses – Courts below rightly found him guilty of offence u/s 304B. (Para 15)
        (d) Indian Penal Code, 1860 – Section 302 – No evidence as to the actual part played by the accused – Sentence of life imprisonment reduced to ten years (Para 17)
        (1991) 1 SCC 371 – Relied upon
       Facts of the case:
        1. Santosh (the deceased) was married to the appellant on 05.05.1992 and on 08.03.1993 she was found dead in her in-laws house. On the same day, a written report was lodged with the police at the Shivaji Park Police Station at Alwar, by the uncle of the appellant, Ganga Sahai Saini, saying that while the deceased was boiling the water she got engulfed in flames and died. On the same day, another written report was lodged with the police by the father of the deceased, Babu Lal, that the deceased used to be harassed and humiliated in connection with demand of dowry and on receiving the information that she has died in an electric current accident, he rushed to the spot and found the body of Santosh in charred condition.
        2. The trial court convicted the appellant, Jagdish and Gordhani under Sections 498A and 304B IPC and imposed the sentence of three years rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer further three months’ simple imprisonment for the offence under Section 498A IPC and imposed the sentence of imprisonment for life and a fine of Rs.5,000/-, in default further six months’ simple imprisonment for the offence under Section 304B IPC.
        3. On appeal, the High Court acquitted Jagdish and Gordhani but confirmed the conviction of the appellant under Section 498A and 304B IPC.
       Finding of the Court:
        There is no infirmity in conviction.
       Result : Appeal partly allowed.

JUDGMENT

A.K. Patnaik, J. —

Criminal Appeal No. 854 of 2004

This is an appeal against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998.

2. The facts very briefly are that on 05.05.1992 Santosh (the deceased) was married to the appellant and on 08.03.1993 she was found dead in her in-laws house. On the same day, a written report was lodged with the police at the Shivaji Park Police Station at Alwar, by the uncle of the appellant, Ganga Sahai Saini, saying that while the deceased was boiling the water she got engulfed in flames and died. On the same day, another written report was lodged with the police by the father of the deceased, Babu Lal, that the deceased used to be harassed and humiliated in connection with demand of dowry and on receiving the information that she has died in an electric current accident, he rushed to the spot and found the body of Santosh in charred condition. On the basis of such information given by Babu Lal, the police registered FIR No.53 of 1993 for the offences under Sections 498A and 304B of the Indian Penal Code (for short ‘IPC’). The investigation was carried out and charge-sheet was filed by the police in the Court of Additional Chief Judicial Magistrate No.2, Alwar, against the appellant, Jagdish (younger brother of the appellant), Smt. Gordhani (mother of the appellant), Khem Chand (sister’s husband of the appellant), Gyatri Devi (wife of Khem Chand) and Girdhari Lal (father of Khem Chand). The case was committed to the Sessions Court and tried by the Additional Sessions Judge No.2, Alwar, as Sessions Case No.32 of 1998. The Additional Sessions Judge framed charges under Section 147, 304B and 498A IPC against all the accused persons. At the trial, the prosecution examined 16 witnesses and exhibited 31 documents. After statement of the accused under Section 313 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), no defence witness was examined. The Additional Sessions Judge convicted the appellant, Jagdish and Gordhani under Sections 498A and 304B IPC and imposed the sentence of three years rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer further three months’ simple imprisonment for the offence under Section 498A IPC and imposed the sentence of imprisonment for life and a fine of Rs.5,000/-, in default further six months’ simple imprisonment for the offence under Section 304B IPC. On appeal, the High Court acquitted Jagdish and Gordhani but confirmed the conviction of the appellant under Section 498A and 304B IPC.

3. Mr. Tara Chandra Sharma, learned counsel for the appellant, submitted that the appellant has already served out the sentence under Section 498A IPC and, therefore, his challenge in this appeal is confined to the conviction and sentence under Section 304B IPC. He submitted that the main ingredient of the offence under Section 304B IPC is that the deceased must have been subjected to cruelty or harassment in connection with any “demand for dowry” and in this case the prosecution has not established that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry. In support of his submission, he relied on the decisions of this Court in Biswajit Halder alias Babu Halder and Others v. State of West Bengal,1 [(2008)1 SCC 202] and Durga Prasad and Another v. The State of M.P.2 [2010(6) SCALE 18]. He referred to the evidence of PW-2 (father of the deceased), PW-4 (mother of the deceased) and PW-5 (brother of the deceased) to show that there was no demand for dowry made by the appellant and that the appellant only wanted Rs.10,000/- to start a shop and this request for a sum of Rs.10,000/- cannot be held to be a demand for dowry.

4. He further submitted that there were, in fact, material contradictions in the testimony of PW-2, PW-4 and PW-5 with regard to the demand for dowry and, therefore, their evidence cannot be relied upon to sustain the convic

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2010 Supreme(SC) 668

Cases Referred (8)