KASHMIRA DEVI versus STATE OF UTTARAKHAND & ORS.

[2020] 1 S.C.R. 152

[2020] 1 S.C.R.

KASHMIRA DEVI

STATE OF UTTARAKHAND & ORS.

(Criminal Appeal No. 724 of 2019)

JANUARY 28, 2020

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Penal Code, 1860 – ss.304-B, 498-A – Case of the prosecutionis that victim (since deceased) was married to proforma respondentno.3 – Accused persons used to beat and harass the victim – Due toCsuch ill treatment by her in-laws for dowry the victim came back toher parental house – PW1 (mother of the victim) & PW3 (father)sent her back to matrimonial house – PW1 through the news spreadamongst the villagers got to know that the victim was burnt – Trialcourt acquitted appellant (mother-in-law) and the other accusedDpersons – High Court convicted the appellant u/s.304-B r/w s.498-A, IPC and awarded life imprisonment – Held: From the evidenceof PW1, prosecution has proved that “soon before the death”,deceased was subjected to cruelty and harassment – Whenprosecution has established the same and also that within sevenyears of marriage the victim had died an unnatural death, theEpresumption u/s.113-B, Evidence Act is to be raised against theappellant that she caused the dowry death – Once the prosecutionis able to establish the ingredients of s.304B, IPC, it is for theaccused to rebut the presumption – But the accused did not adduceany reliable evidence to rebut the presumption – Further, there wereFthree dying declarations of the victim – Since it has come in evidencethat at the time of recording the first two dying declarations, her in-laws were present, it cannot be said that the statement was recordedvoluntarily and without fear – During the third dying declaration,parents of the victim had come and she gave the statement withoutany fear – Said statement refers to the incident and the manner inGwhich it had occurred – Indicator to the truthfulness of such statementis that the deceased only mentioned about the appellant whoindulged in the act of pouring kerosene and setting her on fire –She did not implicate her husband nor her father-in-law who wasin the house – Conviction of the appellant is affirmed – However,H

sentence of imprisonment for life is altered to rigorous imprisonmentfor seven years including the period of sentence already undergoneby the appellant – Fine as imposed and default sentence is sustained– Evidence Act, 1872 – s.113-B.

Penal Code, 1860 – s.304-B – Conviction under – Essentialsto be satisfied – Discussed.

Penal Code, 1860 – s.304-B – Quantum of sentence –Appellant convicted u/s.304-B – Awarded life imprisonment – Held:Minimum sentence provided is seven years but it may extend toimprisonment for life – In Hem Chand v. State of Haryana reportedas [1994] 4 Suppl. SCR 295, Supreme Court held that while imposingthe sentence, awarding extreme punishment of imprisonment for lifeu/s.304-B should be in rare cases and not in every case – In view ofmitigating factors in present case, like appellant’s age, contributionrequired by her to the family, while husband is also aged, and furthertaking into consideration all other circumstances, sentence ofimprisonment for life is altered to rigorous imprisonment for sevenyears including the period of sentence already undergone.

Partly allowing the appeal, the Court

HELD : 1.1 From the evidence of PW-1, prosecution hasproved that “soon before the death”, deceased was subjected tocruelty and harassment. When prosecution has established thatdeceased was subjected to dowry harassment “soon before thedeath” and that within seven years of marriage deceased haddied an unnatural death, the presumption under Section 113-B ofthe Evidence Act is to be raised against the appellant that shecaused the dowry death. Once the prosecution is able to establishthe ingredients of Section 304B IPC, it is for the accused to rebutthe presumption. But the accused have not adduced any reliableevidence to rebut the presumption. The evidence of DW-1 andDW-2 relating to the incident will not be sufficient when theincident is viewed keeping in perspective the evidence ofprosecution relating to the demand for dowry preceding the actualincident. In fact, when the deceased was shifted from Kota hospital,Srinagar to Dehradun hospital, PW-1 tried to accompany thembut the accused refused to take PW-1 along. Not informing about

Athe incident and refusal of the appellant and other accused totake PW-1 along with them to the hospital, are strongcircumstances against the appellant. The evidence of PW1 woulddisclose that when she first went to the Hospital in Srinagar, shefound that the deceased was surrounded by her husband and in-laws while PW1, the mother of the deceased was not allowed toBinteract with her daughter. It is in that circumstance the saiddeclarations dated 06.02.08 and 07.02.08 were recorded. Firstly,the statement dated 06.02.08 was not recorded by CompetentAuthority or an Officer but is recorded by the so-called Panchayatin the manner to aid the accused. Insofar as the second dyingCdeclaration dated 07.02.08 it is no doubt true that it has beenrecorded after communication being addressed to the Tehsildarand after being certified by the doctor that the deceased wasmentally fit to make the declaration. Though the said requirementsare satisfied, the surrounding circumstances in which thestatement was recorded while she was under the control of herDin-laws. Such statements relied on by the appellant would notinspire confidence in the Court. In addition, it is noticed that thesame is in the form of question and answer which could also beout of context depending on the manner in which the questionswere put. As noted in the evidence of PW1, the mother of theEdeceased, she was not allowed to accompany the deceased whenshe was shifted to Doon Hospital. However, she subsequentlywent there and was able to interact with her daughter and in thatcircumstance after about week from the incident the declarationwas recorded on 13.02.08 after being certified by the doctor aboutthe deceased being conscious and fit to make the statement. TheFsaid statement refers to the incident and the manner in which ithad occurred. The indicator to the truthfulness of such statementis that the deceased had only mentioned about the appellant i.e.,the mother-in-law who had indulged in the act of pouring keroseneand setting her on fire. She had not implicated her husband norGher father-in-law who was in the house but has stated that herfather-in-law was sitting in another room having her daughter onhis lap and has in fact stated that when she started crying, herfather-in-law came there and he extinguished the fire. If it was acase of false implication, there was no reason for the deceased tohave been so specific insofar as the act of causing the deathH

without naming the other members of the family when all of themwere involved in the act of demanding dowry and was complainingearlier about the harassment meted out by them. In suchcircumstance, the reliance placed on the dying declaration dated13.02.08 is justified. [Paras 19-21] [165-H; 166-A-H; 167-A-D]

1.2 On an independent consideration, the dying declarationdated 13.02.08 is reliable. The said dying declaration wasrecorded by the Additional Tehsildar who was examined as PW5.He stated with regard to the memo received from the hospitaland having met the medical officer he recorded the statement ofthe deceased who was lying with burn injuries in the emergencyward. The validity of the statement so recorded, therefore, standsestablished. The High Court having examined the matterthreadbare has arrived at its conclusion in recording theconviction in the manner as it has done which is justified anddoes not call for interference. [Paras 22, 23] [167-F-G; 168-B-D]

Nallam Veera Stayanandam & Ors. v. The PublicProsecutor, High Court of A.P. (2004) 10 SCC 769 ;Ashabai & Anr. v. State of Maharashtra (2013) 2 SCC224 : [2013] 1 SCR 115 ; State of Karnataka v.Suvarnamma & Anr. (2015) 1 SCC 323 – referred to.

1.3 In the instant case keeping in view the age of theappellant and also the contribution that would be required by herto the family, while husband is also aged and further taking intoconsideration all other circumstances, the sentence as awardedby the High Court to the appellant herein is liable to be modified.In the result the following: (i) The conviction of the appellantrecorded by the High Court under Section 304-B IPC and Section498-A IPC through its judgement dated 29.06.17 is upheld andaffirmed; (ii) The sentence ordered by the High Court throughits order dated 10.07.17 is modified and the sentence ofimprisonment for life is altered by ordering the appellant toundergo rigorous imprisonment for period of seven years whichshall include the period of sentence already undergone by theappellant. The fine as imposed and the default sentence issustained. [Para 25] [168-F-H; 169-A-B]

EFG

AHem Chand v. State of Haryana (1994) 6 SCC 727 :[1994] 4 Suppl. SCR 295 – relied on.

Sanjay Kumar Jain v. State of Delhi (2011) 11 SCC733 : [2010] 14 SCR 1135 ; Kans Raj v. State of Punjaband Others (2000) 5 SCC 207 : [2000] 3 SCR 662 ;BSmt Shanti and Another v. State of Haryana (1991) 1SCC 371 : [1990] 2 Suppl. SCR 675 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 724 of 2019.

EFrom the Judgment and Order dated 29.06.2017 of the High Courtof Uttarakhand at Nainital in Government Appeal No. 42 of 2010.

Aakash Sirohi, Indra Lal, M. P. Shorawala, Advs. for the Appellant.Dr. Rajiv Nanda, Manish Kumar Vikkey, Advs. for theRespondents.F

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. The instant appeal has been filed by the appellant assailing theimpugned judgment and final order dated 29.06.2017 and 10.07.2017,Gpassed by the High Court of Judicature at Nainital in Government AppealNo. 42 of 2010, whereby the High Court has allowed the appeal filed bythe Respondent and set aside the acquittal of appellant passed by thetrial court and convicted the appellant for the charges under Sections304-B and 498-A IPC.

2. The case of the prosecution in brief is that the marriage betweendeceased/ Urmila @ Guddi and Proforma Respondent No.3/Jagdish Singhwas solemnized four years back. At the time of the marriage dowry wasgiven by parents of the deceased as per their financial capacity; despitethe same the husband and in-laws of the deceased were not satisfied.Whenever deceased used to visit her paternal house, she used to complainabout the harassment and brutal beating by her husband, father in law,mother in law i.e. Appellant/Kashmira Devi, brother of husband andbrother’s wife for non-fulfilment of demands for dowry, to PW-1/Rajeshwari/ Mother of the deceased. In November, 2007 the deceasedwas severely beaten and harassed by the accused persons. Due to theill treatment of her in-laws she came back to her parental house. PW1and her husband/PW-3 sent her back on 02.02.2008 to the matrimonialhouse by stating that they are very poor and in no position to fulfil thedemands of the accused persons. On 08.02.2008, PW1 through the newsspread amongst the villagers received information that the deceased wasburnt, thereafter she called the in-laws of her daughter to inquire aboutthe incident, when she was told by Proforma Respondent No 3 that shewas burnt due to stove burst. Immediately PW1 along with all her familymembers reached the base hospital to see the condition of deceased andon inquiring about how her daughter was burnt, accused persons insteadof giving satisfactory answer used derogatory words and startedthreatening them and also told deceased to say on inquiry by anybodythat she has got burnt by stove. On 14.02.2008 deceased succumbed toher injuries. On 15.02.2008, PW1/Rajeshwari/Mother of the deceasedfiled an application under Section 156(3) of the Cr.P.C.

3. The statement of the deceased was recorded by DW1/DarshaniDevi on the first day after the incident wherein deceased stated that allof sudden, the stove burst, oil spilled and caught fire. She had alsostated that no one was responsible for the incident. On 07.02.2008, seconddying declaration was recorded by the Tehsildar wherein she stated thatthe stove exploded and her saree caught fire. The last dying declarationwas recorded by PW-5/ Shishpal Singh/ Additional Tehsildar on 13.2.2008wherein the deceased has stated that there was quarrel between herand 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 theaccused persons. The investigation of the offence was taken up by PW8

Aand later on by PW9/Devendra Singh who recovered clothes and stovefrom 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 onapproximately 55% of the body including head, face, neck, breast, lefthand and right hand from front and back side. On internal examinationBof 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 antemortem burn injuries. After completion of the investigation, charge sheetwas filed under Sections 304-B and 498-A of IPC. The appellant pleadednot guilty and claimed to be tried. The prosecution examined as many asC9 witnesses to bring home the guilt of the accused and accused producedtwo witnesses.5. Upon consideration of the evidence, the trial court acquittedappellant and the other accused persons for the charges under Section304-B and 498-A IPC stating that the prosecution has failed to prove theDcase against the accused persons beyond reasonable doubt. Trial courtnoted that on 07.02.2008 on the application of the SHO, dying declarationof the deceased was recorded by the Tehsildar but the said dyingdeclaration has not been proved by the prosecution. Court held that thereare three dying declarations of the deceased, hence the dying declarationshave become dubious. It held that at the time of the incident only theEfather in law and the mother in law of the deceased were at home andnone of the family members were present at home. All the witnessesexamined by the prosecution belong to the parents’ place of the deceased,but were not present on the spot. The witness DW2/Dalveer Singh isthe spot witness but he has not been examined by the prosecution and

Fhas rather been examined by the defence, who deposed that deceasedcaught fire from stove. So far as the question of dowry is concerned noprior complaint in this regard has ever been filed by the parents of thedeceased. Regarding the FIR, court held that it has been lodged on theinstruction of the husband of PW1 with much delay and only after due

deliberations, on seeking legal advice. The Investigating officer has shownGin the site map of the spot that the saree caught fire from the stove.

6. Being aggrieved by the order dated 25.02.2010, an appeal wasfiled by the State of Uttarakhand, whereby High Court set aside theorder passed by the Trial Court and convicted appellant under Section304-B read with Section 498-A of the IPC and sentenced her to undergoH

imprisonment for life and to pay fine of Rs. 10,000 for the offence underSection 304-B and in default of payment of fine, to undergo rigorousimprisonment for six months. However, in view of the judgment in Smt.Shanti and Anr. Vs. State of Haryana AIR 1991 SC 1226, thoughappellant was convicted u/s 498-A IPC, no separate sentence wasawarded in view of the fact that substantive sentence was awarded formajor offence u/s 304-B IPC.

7. The High Court noted that statement of deceased was recordedfirstly on 06.02.2008 wherein she deposed that all of sudden, the stoveburst, oil spilled and caught fire. She had also stated that no one wasresponsible for the incident. This statement was signed by members ofthe Gram Panchayat but they were not examined. DW-1 thoughexamined, in her cross-examination deposed that she did not know whohas written this statement on 06.02.2008/Ex. B-1. The court held thatthis document does not inspire confidence. The second statement wasrecorded on 07.02.2008 by the Tehsildar in which also she stated thatthe stove exploded and her saree caught fire. She put right thumbimpression on the statement. The last statement was recorded on13.02.2008 by PW-5. The death of deceased was due to burn injurieswhich are verified by the doctor. Court further noted that dying declarationmade on 13.02.2008 is natural, voluntary and without any influence. Whenstatements were recorded on 06.02.2008 and 07.02.2008, the accusedpersons were present in the room. However, on 13.02.2008, parents ofthe deceased were also there and she gave statement without any fear.Deceased made specific allegation against appellant which cannot betermed as tutored. Further the High Court held that in case the deceaseddid not die unnatural death, it was expected that in-laws would informthe parents of the deceased, which was not done in this case. As regardsthe delay in lodging FIR, the court opined that the foremost anxiety ofthe family members was to look after the deceased instead of lodgingFIR. When the deceased died on 14.02.2008, immediately after that on15.02.2008 complaint was lodged and FIR was registered. Thus, therewas no inordinate delay in filing the FIR. PW-9 has deposed that thestove did not burst and the same was taken into possession. There isclose proximity between demand of dowry for which deceased washarassed and tortured by her in-laws and her death. With these findings,the High Court allowed the appeal filed by the respondent and set asidethe order of acquittal passed by the trial court and convicted them.

A8. In appeal before us, appellant has contended that the HighCourt erred in ignoring that the prosecution failed to present any materialto rule out the possibility of an accidental death so as to bring it withinthe purview of the ‘Death occurring otherwise than in normalcircumstances’ as required under Section 304-B of IPC and further failedin establishing the fact that soon before the occurrence there was cruelty/Bharassment in relation to dowry demand and to bring on record anyreliable evidence of subsisting dowry demand. Further the High Courterred in ignoring the fact that the parents of the deceased never madean attempt to report that there was demand for dowry to the police orthe elders of the locality and the fact that the allegation regarding dowryCwas made for the first time on 15.02.2008 while the incident took placeon 06.02.2008. It is also contended by the appellant that High Courterred in convicting the accused by reversing the judgment of acquittal ofthe appellant even though the same was based on reasonable and plausiblegrounds and in ignoring the evidences brought on record and the credibilityof the prosecution witnesses. It is also submitted by the appellant thatDthe High Court erred by relying on the three-dying declarations of thedeceased in isolation and failed to consider the possibility that the thirddying declaration of the deceased was result of being brainwashed byher parents. It is the contention of the appellant that error was committedby the Court in bringing the case within the ambit of the Section 113-BEof the Indian Evidence Act by proceeding under the presumption arisingunder Section 304-A and 113-B of the Indian Evidence Act.

9. On the other hand in the counter affidavit filed by theRespondents they have submitted that the High Court properlyappreciated the statement of the deceased made on 13.02.2008 whereinFthe deceased supported the prosecution case and also evidence of PW5and accordingly convicted and sentenced the appellant u/s 304-B and498-A IPC by stating that dying declaration is acceptable even in theabsence of the other corroborative evidence. It was further submittedthat the High Court has applied correct position of law before convictingthe appellant under Section 304-B by discussing the applicability of SectionG304-A and Section 113-B of the Evidence Act relying on the judgment ofSanjay Kumar Jain Vs State Of Delhi (2011) 11 SCC 733 and holdingthat deceased died within seven years of marriage and she was subjectedto cruelty and harassment by her husband and relatives for bringinginsufficient dowry and further in holding that accused persons including

the appellant had failed to rebut the presumption under Section 113-B ofthe Evidence Act. It is further submitted by the Respondent that depositionof PW1, PW2 and PW3 clearly establish the fact that deceased wassubjected to cruelty by her in-laws in bringing insufficient dowry and onvarious occasion she has told it to her parents. On the contention of thedying declaration it is submitted that the High Court had rightly held thatdying declaration made on 13.02.2008 is only found to be trustworthyafter assessing each dying declaration relying on the ratio of the judgmentAshabai and Another Vs State of Maharashtra (2013) 2 SCC 224wherein it was held that when there are multiple dying declarations,each dying declaration has to be assessed independently on its own meritsas evidentiary value and one cannot be rejected solely because of certainvariations in another declaration. It was further submitted that the HighCourt has rightly held that the prosecution has proved its case beyondreasonable doubt on the basis of the material on record and evidence ofmaterial witnesses. Respondents have further submitted that in the presentcase trial court acquitted the accused persons without any cogent reasonand the High Court as First Appellate Court re-appreciated and scannedthe evidences and passed well-reasoned judgment whereby theappellant has been appropriately convicted.

10. Heard Shri Aakash Sirohi, learned counsel for the appellant,Dr. Rajiv Nanda, learned counsel for the respondent State and perusedthe appeal papers.

11. As noticed the learned Sessions Judge by the judgement dated25.03.2010 in Sessions Trial No.13/2008 had acquitted the appellant hereinand the other co-accused of the charge alleged against them under Section304-B and 498-A of IPC. The High Court having re-appreciated theevidence and having considered the matter in its entirety has convictedJagdish Singh, the husband of the deceased and Govind Singh andMahendra Singh, the father-in-law and brother-in-law of the deceasedunder Section 498-A IPC. The appellant Kashmira Devi, mother-in-lawof the deceased is convicted under Section 304-B IPC and sentenced toundergo imprisonment for life and pay fine of Rs.10,000/-, in default toundergo rigorous imprisonment for six months. In respect of theconviction against the appellant under Section 498-A no separate sentenceis awarded. While arriving at the conclusion the High Court in additionto the other evidence available on record has also referred to the dyingdeclaration recorded on 13.02.2008. In the said dying declaration the

Adeceased Urmila @ Guddi had stated that the appellant, her mother-in-law had gone to the room and started quarrelling with her. She pouredthe bottle of kerosene kept in the room on her clothes and startedquarrelling with her, during which time she torched her. The otherevidence available on record related to the demand of dowry to whichthe other accused were also party and, in that light, insofar as theBdeath caused, the deceased had not made any allegation relating to deathagainst the other accused. All the accused were convicted under Section498-A of IPC and the appellant was convicted under Section 304-B aswell, since the deceased had held her responsible for her death.

12. The learned counsel for the appellant while assailing theCjudgment passed by the High Court has referred to the judgment passedby the Sessions Court wherein based on the same evidence available onrecord the Sessions Court had arrived at the conclusion that the chargeagainst the accused was not proved beyond reasonable doubt. Thelearned counsel would further contend that the High Court has committedDa serious error in discarding the earlier two dying declarations dated06.02.2008 and 07.02.2008 wherein the deceased had categorically statedthat the appellant nor her family members were responsible but it wasan accident due to stove burst. In that light it was contended that thedying declaration dated 13.02.2008 is not reliable and the same wasrequired to be discarded. It is contended that the dying declaration datedE07.02.2008 was recorded by the Tehsildar based on the request made asper procedure. Hence it is contended that the very approach adoptedby the High Court was erroneous and the judgment is liable to be setaside and restore the judgment passed by the Sessions Court.

13. The learned counsel for the State however seeks to sustainFthe judgment passed by the High Court. It is contended that the SessionsCourt in fact had proceeded at tangent and arrived at wrongconclusion which is contrary to the well-established legal position. Inthe instant facts young lady aged about 22 years was killed for non-fulfilling the dowry demand. The incident had occurred within theGstatutory period of seven years from the date of marriage and there wassufficient evidence available on record to indicate the demand for dowryimmediately prior to the death. In that circumstance while the death hadoccurred, presumption had arisen as contemplated under Section 304-B of IPC and Section 113-B of the Evidence Act. The ingredients,therefore, had been satisfied and it was for the appellant to dispel theH

presumption, which they have failed to do and, in that circumstance, theHigh Court having referred in detail to the legal position and the evidenceavailable on record has arrived at its conclusion which does not callinterference.

14. In the instant case the undisputed position is that the deceasedUrmila @ Guddi was given in marriage to one of the accused JagdishSingh. The marriage was performed about four years prior to the dateof the incident which occurred on 06.02.2008 and the death on 14.02.2008.Since the complaint against the accused was for demand of dowry andthe death being caused for non-fulfilment of the same, the sequencewhich occurred leading to the demand of dowry as well as the death isto be noticed at the outset. In that regard the mother of the deceasedRajeshwari Devi was examined as PW1. She had stated with regard tothe marriage and that her daughter was being harassed by her in-lawsfor taking insufficient dowry. The articles that were given at the time ofthe marriage were also referred and it was stated by her that her daughtercame back to the parental house stating that her husband and the in-laws were demanding dowry. The father of the deceased was workingat Delhi and as such the mother of deceased informed him about thedemand. He returned to the village from Delhi after couple of daysand went along with his daughter Urmila to her in-laws. The incidentsthat occurred there are referred and also the daughter being beaten andbeing injured in the eye was referred. Immediately thereafter on06.02.2008 she heard from other villagers that her daughter was burnt.Thereafter though she went and saw her daughter in the Base Hospital,Srinagar she was not allowed to accompany her daughter when shewas shifted from the said hospital to Doon hospital in Dehradun.

15. In that circumstance she thereafter went to that place afterher husband had reached. She had stated that when she initially went toSrinagar Hospital her daughter was surrounded by the accused and wasnot being allowed to speak to PW1, the mother. However subsequentlywhen she visited her daughter on 13.02.2008 she was able to interactwith the daughter who had at that stage informed her that her mother-in-law was responsible for her death as she had poured kerosene andburnt her. The father of the deceased was examined as PW3 who hasalso spoken with regard to the same in manner to corroborate theversion of PW1, the mother. PW2, Bheem Raj Singh who was examinedas witness being the uncle has stated with regard to PW1 having told

Ahim about the harassment caused by the in-laws of the deceaseddemanding for dowry and about the ultimate death. He has stated thatwhenever she went home, the deceased used to complain about her in-laws. PW4, Smt. Geeta Devi, close relative of the deceased has alsospoken in the same terms. The evidence of PW1 to PW4 would indicatethat the same would not only establish the ingredients of Section 498-ABIPC where there was demand for dowry but would also satisfy theingredients of Section 304B IPC relating to the cruelty and harassmentbeing caused soon before her death and the same being in connectionwith the demand for dowry. Therefore, insofar as the conviction orderedby the High Court under Section 498-A of IPC the same is justified.C16. Insofar as the death having occurred and the appellant beingconvicted under Section 304B of IPC, in addition to the said evidenceavailable on record the High Court has relied on the dying declarationdated 13.02.2008. As noticed, there are three dying declarations ofdeceased Urmila @ Guddi – one recorded on 06.02.2008 by DW-1-DDarshani Devi, Chairman, Mahila Mangal Dal; second recorded on07.02.2008 by Tehsildar, Srinagar; and the third recorded on 13.02.2008by PW-5-Shispal Singh Rawat, Additional Tehsildar by which time, theparents of deceased Urmila had also come. In the dying declarationsrecorded on 06.02.2008 and 07.02.2008, deceased Urmila had statedthat due to excessive pumping of stove, the stove exploded and sheEcaught fire and sustained burn injuries and at that time, her father-in-lawand mother-in-law i.e. the accused were on the second floor. In the thirddying declaration recorded on 13.02.2008, deceased Urmila stated thaton 06.02.2008 at about 07:00 p.m., appellant Kashmira Devi, her mother-in-law came to her room and started quarrelling with her and thereafter,Fher mother-in-law poured kerosene oil on her clothes and set her on fire.Deceased further stated that except her mother-in-law, no one wasresponsible for the incident.

17. When dying declarations of deceased Urmila were recordedon 06.02.2008 and 07.02.2008, accused were present in the room.GHowever, by the time when her third dying declaration was recorded on13.02.2008, parents of deceased Urmila had come and deceased hadgiven the statement without any fear of the accused. On the very nextday i.e. on 14.02.2008, deceased died and on 15.02.2008, PW-1-Rajeshwari Devi, mother of deceased filed complaint under Section156(3) Cr.P.C. before the Chief Judicial Magistrate, Rudraprayag. OnH

29.02.2008, FIR in Crime Case No.2 of 2008 was registered underSections 498-A and 304B IPC against all the accused. Since it has comein evidence that at the time of recording dying declarations on 06.02.2008and 07.02.2008, her in-laws were present, it cannot be said that thestatement was recorded voluntarily and without fear.

18. The appellant is convicted under Sections 498-A IPC and304B IPC – dowry death. For sustaining the conviction under Section304B IPC, the following essentials must be satisfied: -

(i)the death of woman must have been caused by burns orbodily injury or otherwise than under normal circumstances;

(ii)such death must have occurred within seven years of hermarriage;

(iii)soon before her death, the woman must have beensubjected to cruelty or harassment by her husband or byrelatives of her husband;

(iv)such cruelty or harassment must be for or in connectionwith demand for dowry;

(v)such cruelty or harassment is shown to have been metedout to the woman soon before her death. (Vide Kans Rajv. State of Punjab and Others (2000) 5 SCC 207 andSmt Shanti and Another v. State of Haryana (1991) 1SCC 371).

19. In the present case, PW-1-Rajeshwari Devi, mother ofdeceased and PW-3-Bachan Singh, father of deceased has stated thatdeceased Urmila was harassed by her in-laws for bringing insufficientdowry. They have also stated that after the marriage, when deceasedcame to her parental home, she was complaining that her husband andin-laws including father-in-law, mother-in-law and others weredemanding dowry. PW-1 further stated that deceased Urmila was beatenup by accused persons due to which, her eye was damaged and she wasoperated. PW1 – stated that when deceased again went back to herparental home, on 02.02.2008, PW-1 had taken deceased to her in-lawshouse where, they were not even offered glass of water and theaccused persons enquired as to what they have brought with them. PW-1 told them that they were not in position to fulfil their demands andafter overnight stay, on 03.02.2008, PW-1 returned to her house. Fromthe evidence of PW-1, prosecution has proved that “soon before the

Adeath”, deceased was subjected to cruelty and harassment. Whenprosecution has established that deceased was subjected to dowryharassment “soon before the death” and that within seven years ofmarriage deceased Urmila had died an unnatural death, the presumptionunder Section 113-B of the Evidence Act is to be raised against theappellant that she caused the dowry death. Once the prosecution is ableBto establish the ingredients of Section 304B IPC, it is for the accused torebut the presumption. But the accused have not adduced any reliableevidence to rebut the presumption. The evidence of DW-1 and DW-2relating to the incident will not be sufficient when the incident is viewedkeeping in perspective the evidence of prosecution relating to the demandCfor dowry preceding the actual incident. In fact, when the deceasedwas shifted from Kota hospital, Srinagar to Dehradun hospital, PW-1tried to accompany them but the accused refused to take PW-1 along.Not informing about the incident and refusal of the appellant and otheraccused to take PW-1 along with them to the hospital, are strongcircumstances against the appellant.D

20. In the above background, the justification for the reliance placedon the third dying declaration dated 13.02.2008 by the High Court is tobe examined. The evidence of PW1, as noted, would disclose that whenshe first went to the Hospital in Srinagar, she found that the deceasedwas surrounded by her husband and in-laws while PW1, the mother ofEthe deceased was not allowed to interact with her daughter. It is in thatcircumstance the said declarations dated 06.02.2008 and 07.02.2008 wererecorded. Firstly, the statement dated 06.02.2008 was not recorded bya Competent Authority or an Officer but is recorded by the so-calledPanchayat in the manner to aid the accused. Insofar as the secondFdying declaration dated 07.02.2008 it is no doubt true that it has beenrecorded after communication being addressed to the Tehsildar andafter being certified by the doctor that the deceased was mentally fit tomake the declaration. Though the said requirements are satisfied, thesurrounding circumstances in which the statement was recorded whileshe was under the control of her in-laws. Such statements relied on byGthe appellant would not inspire confidence in the Court. In addition, it isnoticed that the same is in the form of question and answer which couldalso be out of context depending on the manner in which the questionswere put.

21. As noted in the evidence of PW1, the mother of the deceased,she was not allowed to accompany the deceased when she was shiftedto Doon Hospital. However, she subsequently went there and was ableto interact with her daughter and in that circumstance after about aweek from the incident the declaration was recorded on 13.02.2008after being certified by the doctor about the deceased being consciousand fit to make the statement. The said statement refers to the incidentand the manner in which it had occurred. The indicator to the truthfulnessof such statement is that the deceased had only mentioned about theappellant i.e., the mother-in-law who had indulged in the act of pouringkerosene and setting her on fire. She had not implicated her husbandnor her father-in-law who was in the house but has stated that her father-in-law was sitting in another room having her daughter on his lap andhas in fact stated that when she started crying, her father-in-law camethere and he extinguished the fire. If it was case of false implication,there was no reason for the deceased to have been so specific insofaras the act of causing the death without naming the other members of thefamily when all of them were involved in the act of demanding dowryand was complaining earlier about the harassment meted out by them..In such circumstance, the reliance placed on the dying declaration dated13.02.2008 is justified.22. While arriving at such conclusion the High Court has kept inview decision of this Court in the case of Nallam Veera Stayanandam& Ors. Vs. The Public Prosecutor, High Court of A.P. (2004) 10 SCC769 wherein it is held that each dying declaration has to be consideredindependently on its own merit as to its evidentiary value and one cannotbe rejected because of the contents of the other. It is held therein thatthe Court has to consider each of them in its correct perspective andsatisfy itself which one of them reflects the true state of affairs. Theconsideration made herein above would also indicate that on anindependent consideration, the dying declaration dated 13.02.2008 isreliable for the reasons stated above. To the same effect the HighCourt has also relied on another decision of this Court in the case ofAshabai & Anr. Vs. State of Maharashtra (2013) 2 SCC 224 whereinit is held that when there are multiple dying declarations, each dyingdeclaration has to be separately assessed and evaluated on its own merits.

A23. The High Court has also taken note of decision of this Courtin the case of State of Karnataka Vs. Suvarnamma & Anr. (2015) 1SCC 323 wherein it is held that the dying declaration recorded by thepolice officer was consistent with the circumstances on record whiledying declaration recorded by the Magistrate was not found to beconsistent. If the said decision is kept in view, as already noticed, thoughBthe dying declaration dated 07.02.2008 was recorded by Tehsildar, thecircumstance in which it was recorded was taken note by us. Further,the dying declaration dated 13.02.2008 was recorded by the AdditionalTehsildar, Shri Shishpal Singh who was examined as PW5. He hasstated with regard to the memo received from the hospital and havingCmet the medical officer he recorded the statement of the deceased whowas lying with burn injuries in the emergency ward. The validity of thestatement so recorded, therefore, stands established. In addition, theHigh Court has also referred to various other decisions on the subject.Hence the High Court having examined the matter threadbare has arrivedat its conclusion in recording the conviction in the manner as it has doneDwhich is justified and does not call for interference.

24. Having arrived at the above conclusion the quantum ofsentence requires consideration. The High Court has awarded lifeimprisonment to the appellant on being convicted under Section 304-BIPC. The minimum sentence provided is seven years but it may extendEto imprisonment for life. In fact, this Court in the case of Hem ChandVs. State of Haryana (1994) 6 SCC 727 has held that while imposingthe sentence, awarding extreme punishment of imprisonment for lifeunder Section 304-B IPC should be in rare cases and not in every case.Though the mitigating factor noticed in the said case was different, inFthe instant case keeping in view the age of the appellant and also thecontribution that would be required by her to the family, while husband isalso aged and further taking into consideration all other circumstances,the sentence as awarded by the High Court to the appellant herein isliable to be modified.

G25. In the result the following:

(i) The conviction of the appellant recorded by the High Courtunder Section 304-B IPC and Section 498-A IPC through itsjudgement dated 29.06.2017 is upheld and affirmed.

(ii) The sentence ordered by the High Court through its orderdated 10.07.2017 is modified and the sentence of imprisonmentfor life is altered by ordering the appellant to undergo rigorousimprisonment for period of seven years which shall include theperiod of sentence already undergone by the appellant. The fineas imposed and the default sentence is sustained.

(iii) The appeal is allowed in part, in the above terms.

(iv) The parties to bear their own cost.

Pending application, if any, shall stand disposed of.

Divya Pandey

Appeal partly allowed.