1992 Supreme(All) 152

IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, J.
BHOORA SINGH - Appellant
Versus
STATE - Respondents
Criminal Appeal 2854 Of 1988
Decided On : 03/25/1992

Section 304-B, IPC cannot be applied to cases where the death of the deceased occurred before the section was brought into the statute book.

Headnote:

The court held that the appellants could not be convicted under Section 304-B, IPC because the section was brought into the statute book after the death of the deceased. The court also held that the oral dying declaration was not reliable and the appellants were entitled to the benefit of the doubt regarding the charge under Section 302, IPC. However, the court upheld the conviction of the appellants under Section 498-A, IPC and Section 4 of the Dowry Prohibition Act.

Fact of the Case:

The deceased, Smt. Urmila, a youthful wife of 20 years, was brought to the district hospital Fatehpur on 11-10-1986 at about 3-05 p.m. by Rajus cousin Vijai Bahadur Singh with extensive burn injuries. She was admitted and medically examined by Dr. Harish Chandra (P.W. 5) wherein she died at 5-35 p.m. Her mother Smt. Sankatha Devi (P.W. 3) had reached the hospital soon after her hospitalisation but her father Yadunath Singh had reached the hospital after her death, having come from Allahabad where he was posted as Station Officer, P.S. Mohabbatpur Pansa. The doctor had sent to police Station Kotwali, Fatehpur, a memorandum of Ex. Ka-6 about admission of Smt. Urmila in a seriously burnt condition. After her death, another memo (Ex. Ka-8) was sent intimating her death. An inquest (Panchnama) was done on the dead body of Urmila by Sub-Inspector Sivali Misra (P.W. 10 ). Thereafter post-mortem examination was conducted by Dr. B.N. Deo at 2-30 p.m. in the presence of another Medical Officer while the body had reached the mortuary at 11-30 a.m. on 12-10-1986. The FIR lodged at P.S. Kotwali by P.W. 1 Yadunath Singh was forwarded to P.S. Malwan where S.C. Dube, head moharrir (P.W. 9) made necessary entries whereafter Vijai Kumar Sharma, S.O. , P.S. Malwan (P.W. 11) had begun investigation and writing the case diary but the investigations were taken over by the Circle Officer D.S. Yadav, Dy. S.P. (P.W. 6 ). On 14-10-1986 he had gone to the site and got the site plan prepared. He found pieces of Sarhi and one empty glass of kerosene oil and ashes in the oven. He had recorded the statements of Smt. Sukhia and Chanda Devi. In her statement Smt. Sukhiya had told him that she was cleaning her own house when she heard Smt. Urmila "bachao Bachao" and she had come up to the door in a burnt condition. In the charge-sheet submitted by D.S. Yadav, all the accused were shown as absonders as proceedings under S. 82/83, Cr.P.C. had begun against them and the I.O. had shown Raju alias Raghuvendra, husband of Smt. Urmila, Smt. Gulhari Devi alias Champa Devi, mother of Raju, Bhoora Singh, father of Raju and co-accused Km. Aruna Devi, sister of Raju as being prosecuted u/ss. 302, 304-B, 498-A, IPC and Section 4 of the Dowry Prohibition Act. The Trial Judge has acquitted Km. Aruna but has convicted and sentenced the other appellants as under :-1. RAJU appellant both under Section 302, I.P.C.-death sentence2. SMT. Gulhari Devi both under Section 304b, I.P.C.-7 years R.I. both under Section 498-A, I.P.C.-3 years R.I. both ubder Section 4 Dowry Prohibition Act-6 months R.I. plus Rs. 500.00 fine. 3. APPELLANT Bhoora Singh under Section 498-A-3 years R.I. and Rs. 500.00 as fine. under Section 4 Dowry Prohibition Act.-6 months R.I. plus Rs. 500.00 as fine. Against those convictions and sentences the aforesaid two criminal appeals have been preferred and the usual Reference has been sent up by the Sessions Judge because of death sentence having been awarded to Raju and Smt. Gulhari.

Finding of the Court:

The court found that the appellants could not be convicted under Section 304-B, IPC because the section was brought into the statute book after the death of the deceased. The court also held that the oral dying declaration was not reliable and the appellants were entitled to the benefit of the doubt regarding the charge under Section 302, IPC. However, the court upheld the conviction of the appellants under Section 498-A, IPC and Section 4 of the Dowry Prohibition Act.

Issues: 1. Whether Section 304-B I.P.C. apply to the facts of the present case ? 2. Can a charge under S. 302, IPC co-exist with the charge under S. 304-B, IPC ? 3. Can Section 113-B of the Indian Evidence Act be attracted to the facts of the present case even if it is held that S. 304-B, IPC. would not be attracted ?

Ratio Decidendi: The court held that Section 304-B, IPC could not be applied to the facts of the case because the section was brought into the statute book after the death of the deceased. The court also held that a charge under Section 302, IPC could not co-exist with a charge under Section 304-B, IPC because the two sections define different offenses. Further, the court held that Section 113-B of the Indian Evidence Act could not be attracted to the facts of the case because the section only applies to cases where the accused is charged under Section 304-B, IPC.

Final Decision: The court dismissed the appeal of appellant Bhoora Singh and upheld his conviction and sentence under Section 498-A, IPC and Section 4 of the Dowry Prohibition Act. The court partly allowed the appeal of appellants Raju alias Raghvendra Pratap Singh and Smt. Gulahari alias Chapma Devi, setting aside their conviction and sentence under Sections 302 and 304-B, IPC, but upholding their conviction and sentence under Section 498a, IPC and Section 4 of the Dowry Prohibition Act.