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SUPREME COURT OF INDIA
R. Banumathi, A.S. Bopanna, JJ.
Kashmira Devi – Appellant
Versus
State of Uttarakhand & Ors. – Respondents
Criminal Appeal No. 724 of 2019
Decided on : 28-01-2020
(A) Indian Penal Code, 1860 – Sections 304B and 498A – Indian Evidence Act, 1872 – Section 113B – Dowry death and cruelty – Reversal of acquittal by High Court – For sustaining conviction under Section 304B IPC, death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; such death must have occurred within seven years of her marriage; soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; such cruelty or harassment must be for or in connection with demand for dowry; such cruelty or harassment is shown to have been meted out to woman soon before her death – In present case, parents of deceased has stated that deceased Urmila was harassed by her in-laws for bringing insufficient dowry – They have also stated that after marriage, when deceased came to her parental home, she was complaining that her husband and in-laws including father-in-law, mother-in-law and others were demanding dowry – When prosecution has established that deceased was subjected to dowry harassment “soon before the death” and that within seven years of marriage deceased had died an unnatural death, presumption under Section 113B of Evidence Act is to be raised against appellant that she caused dowry death – Once prosecution is able to establish ingredients of Section 304B IPC, it is for accused to rebut presumption – But accused have not adduced any reliable evidence to rebut presumption – In her dying declaration deceased had only mentioned about appellant mother-in-law who had indulged in act of pouring kerosene and setting her on fire – She had not implicated her husband nor her father-in-law – High Court having examined the matter threadbare has arrived at its conclusion in recording conviction in the manner as it has done which is justified and does not call for interference – Keeping in view age of appellant and also contribution that would be required by her to family, while husband is also aged and further taking into consideration all other circumstances, sentence of life as awarded by High Court altered to rigorous imprisonment for a period of seven years. (Paras 18, 19, 20, 21, 23, 24 and 25)
(B) Indian Evidence Act, 1872 – Section 32(1) – Dying declarations – When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits as to its evidentiary value and one cannot be rejected because of contents of other. (Para 22)
Facts of the case:
Instant appeal has been filed by the appellant assailing the impugned judgment and final order dated 29.06.2017 and 10.07.2017, passed by the High Court of Judicature at Nainital in Government Appeal No. 42 of 2010, whereby the High Court has allowed the appeal filed by the Respondent and set aside the acquittal of appellant passed by the trial court and convicted appellant for the charges under Sections 304B and 498A IPC.
Findings of Court:
High Court has awarded life imprisonment to the appellant on being convicted under Section 304B IPC. The minimum sentence provided is seven years but it may extend to imprisonment for life.
Result : Appeal allowed in part.
JUDGMENT
A.S. Bopanna, J.
The instant appeal has been filed by the appellant assailing the impugned judgment and final order dated 29.06.2017 and 10.07.2017, passed by the High Court of Judicature at Nainital in Government Appeal No. 42 of 2010, whereby the High Court has allowed the appeal filed by the Respondent and set aside the acquittal of appellant passed by the trial court and convicted the appellant for the charges under Sections 304- B and 498-A IPC.
2. The case of the prosecution in brief is that the marriage between deceased/ Urmila @ Guddi and Proforma Respondent No.3/Jagdish Singh was solemnized four years back. At the time of the marriage dowry was given by parents of the deceased as per their financial capacity; despite the same the husband and inlaws of the deceased were not satisfied. Whenever deceased used to visit her paternal house, she used to complain about the harassment and brutal beating by her husband, father in law, mother in law i.e. Appellant/Kashmira Devi, brother of husband and brother's wife for non-fulfilment of demands for dowry, to PW-1/ Rajeshwari/ Mother of the deceased. In November, 2007 the deceased was severely beaten and harassed by the accused persons. Due to the ill treatment of her inlaws she came back to her parental house. PW1 and her husband/PW-3 sent her back on 02.02.2008 to the matrimonial house by stating that they are very poor and in no position to fulfil the demands of the accused persons. On 08.02.2008, PW1 through the news spread amongst the villagers received information that the deceased was burnt, thereafter she called the in-laws of her daughter to inquire about the incident, when she was told by Proforma Respondent No 3 that she was burnt due to stove burst. Immediately PW1 along with all her family members reached the base hospital to see the condition of deceased and on inquiring about how her daughter was burnt, accused persons instead of giving a satisfactory answer used derogatory words and started threatening them and also told deceased to say on inquiry by anybody that she has got burnt by stove. On 14.02.2008 deceased succumbed to her injuries. On 15.02.2008, PW1/Rajeshwari/Mother of the deceased filed an application under Section 156(3) of the Cr.P.C.
3. The statement of the deceased was recorded by DW1/Darshani Devi on the first day after the incident wherein deceased stated that all of a sudden, the stove burst, oil spilled and caught fire. She had also stated that no one was responsible for the incident. On 07.02.2008, second dying declaration was recorded by the Tehsildar wherein she stated that the stove exploded and her saree caught fire. The last dying declaration was recorded by PW-5/ Shishpal Singh/ Additional Tehsildar on 13.2.2008 wherein the deceased has stated that there was quarrel between her and her mother in law/appellant and in the course of quarrel her mother-in-law set her ablaze and none of the others had any involvement.
4. FIR No.2 of 2008 was registered on 29.02.2008 against the accused persons. The investigation of the offence was taken up by PW8 and later on by PW9/Devendra Singh who recovered clothes and stove from the spot. Body of the deceased was sent to the hospital for post-mortem which was conducted by PW6/ Dr. R.K. Tamta and in the post-mortem report he stated that severe burn injuries were present on approximately 55% of the body including head, face, neck, breast, left hand and right hand from front and back side. On internal examination of the body it was found that the membrane of the head was congested. In his opinion the cause of the death was septicaemia due to the ante mortem burn injuries. After completion of the investigation, charge sheet was filed under Sections 304-B and 498-A of IPC. The appellant pleaded not guilty and claimed to be tried. The prosecution examined as many as 9 witnesses to bring home the guilt of the accused and accused produced two witnesses.
5. Upon consideration of the evidence, the trial court a
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