Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. The third dying declaration is what was stated by deceased Sunita to the Tehsildar/Magistrate Rajesh Kumar Shrivastava, PW13. The Tehsildar/ Magistrate was summoned to record her dying deClaration. Dr. S.N.H. Rizvi of the District STATE OF U.P. v. SANTOSH KUMAR JDALVEER BHANDARI, J.] Hospital, Unnao gave certificate that he had examined deceased Sunita and she was in her full senses and her statement could be recorded and only thereafter her statement was recorded by the Tehsildar. The said Tehsildar clearly stated that she was in a fit condition to give her ,,statement. Deceased Sunita stated to the Tehsildar/Magistrate that she demanded Rs.20/- from her mother-in-law who refused to give her Rs.20/ -. Thereafter, her brother-in-law Santosh Kumar came from the l outside and asked her, "what were you doing in Bombay". She replied, "Go to Bombay and get the matter inquired into". On getting this reply from the deceased, Santosh Kumar started c beating her and her father-in-law also abused her. On exhortation of Prem Narain, Santosh Kumar brought a container of kerosene oil and poured the same on her whole body and …._ set her on fire. In that statement, she has also stated that she had no dispute with her husband and Ram Kishore, another 0 brother of her husband. She stated that her mother-in-law Shiv Pyari, uncle-in-law Prem Narain, brother-in-law (Oevar) Santosh Kumar and elder brother-in-law (Jeth) Arjun Prasad had been harassing her from the very beginning. She also stated that her brothers-in-law Santosh Kumar and Arjun Prasad always used to tell her, "Bring 'Roti' (Bread) from your father''.
16. Om Prakash PW2, Chotey Yadav PW3 and Santosh PW4 did not support the prosecution case, the prosecution case hinges on the statements made by Dhani Ram PW1, Inspector S.K. Tyagi PW8 and the Tehsildar/Magistrate Rajesh Kumar Srivastava PW13.
17. The trial court carefully marshalled and analyzed the entire evidence on record. On the basis of the three dying declarations, the trial court found the accused Santosh Kumar -1. guilty of killing Sunita by pouring kerosene oil and setting her on fire. The Tehsildar/Magistrate PW13 categorically stated that deceased Sunita was in her full senses throughout the recording of her dying declaration. ….
18. The trial court after analyzing the entire evidence, while acquitting respondent Santosh Kumar under section 304-8 IPC, convicted him under sections 302 and 498-A IPC and under sections 3 and 4 of the Dowry Act. Respondents Shiv Pyari and Prem Narain were convicted by the trial court only under section 8 498-A I PC and sections 3 and 4 of the Dowry Act.
19. The High Court in the impugned judgment observed that when the State has not filed any appeal against the order r of acquittal under section 304-B IPC, the order of acquittal for c the charge of offence punishable under section 304-B IPC has be~ome final. The respondents preferred appeal against conviction under sections 302 and 498-A IPC and sections 3 and 4 of the Dowry Act by the trial court.
20. The High Court while acquitting the respondents herein r D under all the charges observed as under: "When the charge under section 304-B l.P.C. was held to have failed, then there was no logic in convicting the appellants for offences punishable under sections 3 and 4 of the Dowry Prohibition Act as well as under section 498-A l.P.C. The trial Court ought to have acquitted all the appellants for offences punishable under section 498-A . f IPC and 3 and 4 of the Dowry Prohibition Act."
21. This finding of the High Court is palpably wrong and F unsustainable. The ingredients of sections 498-A IPC and sections 3 and 4 of the Dowry Act are different from the ingredients of section 304-B IPC. This erroneous understanding of law has led to entirely erroneous and unsustainable findings by the High Court. The High Court was entitled to re-appreciate ·G the entire evidence in appeal, but in doing so the High Court could not ignore the vital features of the prosecution evidence. -1 …. The High Court has given no reasons for setting aside a well reasoned judgment of the trial court and acquitted the accused under section 302 IPC. In this appeal, we are called upon to primarily decide about the legality of acquittal of the respondent under section 302 IPC.
22. The entire prosecution case hinges on the three dying declarations made by the deceased. On careful analysis of these dying declarations, it leads to only one conclusion that respondent Santosh Kumar after beating deceased Sunita poured kerosene oil on her and set her on fire and that she died because of burn injuries sustained by her. The High Court 1 unnecessarily gave undue importance to the minor contradictions in the testimony of witnesses and dying declarations. c 91111
23. The High Court ought to have examined this case in the proper perspective. The doctor also certified that the deceased was in a fit mental condition to give statement. The """ Tehsildar/Magistrate PW13 also stated the same in his statement.
24. The basic consistency between the three dying declarations given to Dhani Ram PW1, the Investigating Officer PW8 and the Tehsildar/Magistrate PW13 is that the accused Santosh Kumar brought kerosene oil, poured the same on the deceased and set her on fire and she died because of the burn ~, · injury. It is the real genesis of all the three dying declarations. It must be properly appreciated that the deceased Sunita gave these dying declarations in a state when she was having acute pain and minor inconsistencies in one dying declaration with another should not render the dying declarations void. Dying declarations must be construed in proper perspective.
25. The veracity of the dying declarations is proved beyond any shadow of doubt because the deceased specifically did not level any allegation against her husband and her other G ,… brother-in-law Ram Kishore. If she wanted to implicate other members of the family, she could have also named her brother- in-law Ram Kishore and husband Ram Chandra. But she specifically attributed the act of bringing and pouring kerosene oil on her and setting her on fire only by respondent Santosh A Kumar. The, High Court ought to have appreciated this fact in proper perspective as to why the dying person in all her three dying declarations named only Santosh Kumar and attributed act of pouring kerosene oil and setting her on fire to him .alone when there were so many members in the family.
26. The statement of the deceased made to the Tehsildar/ Magistrate PW13 cannot be brushed aside. He was totally an . independent witness and there was no reason for him to cook up any false story. c
27. Similarly, the statement Ext.Ka.16 made to the Investigating Officer .also seems to be correct, consistent and J/lr corroborated by the other two statements made before the Tehsildar/Magistrate PW13 and Dhani Ram P\1'{1. The High Court gravely erred in setting aside a well reasoned judgment . D of the trial court and coming to the different findings which are totally unsustainable on proper analysis of the entire record.
28. In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are E bound to occur. But it is the duty of the court to ensure that the truth prevails. If on material particulars, the statements of prosecution witnesses are consistent, then they cannot be discarded only because of minor inconsistencies. While appreciating the evidence, the courts must also consider the fact carefully as to why would the father of the deceased falsely implicate only one of the members of the family and let go the real culprit? At that juncture, usual anxiety is to ensure that the real assailant must be punished.
29. The court in this case ought to have considered what G was the interest of the Tehsildar/Magistrate to have wrongly recorded the statement of the deceased. Similarly, when the ire statement Ext. Ka 16 recorded by the Investigating Officer gets full corroboration from the other two dying declarations, there is no justification in discarding the testimony of the investigating H officer.
30. We have carefully examined all the three dying declarations. The guilt of the accused Santosh Kumar of committing murder of the deceased Sunita is fully and clearly made out. In our considered opinion, no other view is possible in the light of the three dying declarations. The High Court erroneously set aside a well reasoned judgment of the trial court and acquitted the respondent and other _accused. The High Court's finding that when the charge under section 304-8 IPC could not be proved, then conviction under section 498-A IPC and sections 3 and 4 of the Dowry Act also cannot be sustained. This approach of the High Court is wholly erroneous c and unsustainable.
31. In order to correctly appreciate the legal position, it is necessary to examine ingredients of these sections. …… Section 304-B IPC reads as under: "304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death."
32. On analysis of the section, the following essential ingredients of section 304-8 IPC emerge and they are set out as under: "Essentials (i) That the accused caused death of a woman; (ii) that the accused was husband, or any relative of the husband of that woman; (iii) death of such woman, (a) was caused by any burns, or bodily injury, or (b) occurred otherwise than under normal circumstances; (iv) such death was caused within seven years of the marriage of that woman; (v) soon before her death such woman was subjected to cruelty, or harassment; c (vi) the accused had subjected such woman to such cruelty or harassment for, or in connection with any demand for dowry."
33. Section 498-B IPC reads as follows: "498-A. Husband or relative of husband of a woman ir- subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for. a term which may extend to three years and shall also be liable to fine."
34. The following are the essential ingredients of Section 498-A IPC: "Essentials (i) That there was a married woman; (ii) that such woman was subjected to cruelty; (iii) that such cruelty consisted of any willful conduct of such nature as was likely to drive such woman – to commit suicide, or to cause grave injury or danger . to her life, limb or health, whether mental or physical; harassment of such woman where such harassment was – with a view to coercing such woman or any person related to her to meet any · unlawful demand for any property or valuable -j security, or on account of failure by such woman, or any person related to her to meet the unlawful demand in able and the woman was subjected to such cruelty by- the husband of that woman; or any relative of the husband of that woman. n
35. The High Court gravely erred in coming to the finding that once the charge under section 304-8 IPC could not be proved, then conviction under section 498-A IPC and sections 3 and 4 of the Dowry Act also cannot be recorded. In State of c Kamataka v. Balappa 1999 Cri LJ 3064 (Kant), at pages 3068, 3069 and 3070, the court has dealt with in great detail that even if the charge under section 304-B IPC is not made out, the conviction under section 498-A IPC can be recorded. Sections …., 304-B and 498-A IPC are both distinct and separate offences . The 'cruelty' is a common essential ingredient of both the offences. Under section 304-8, it is the 'dowry death' that is punishable and such death should have occurred within seven years of the marriage. In the statute, no such period is me.rtioned in section 498-A IPC. The husband or his relative would be liable for subjecting the woman to 'cruelty' any time after the marriage.
36. The legal position is absolutely clear that a person charged and acquitted under section 304-8 can be convicted under section 498-A IPC. This court in Smt. Shanti & Another F v. State of Haryana (1991) 1 SCC 371 has taken the same view.
37. The demand of dowry is an essential ingredient to attract section 304-B IPC, whereas under section 498-A IPC the demand of dowry is not the basic ingredient of the offence. Therefore, even if there is acquittai under section 304-B IPC, still conviction under section 498A can be recorded under the law.
38. Sections 3 and 4 of the Dowry Act read as under: c "3 – Penalty for giving or taking dowry – ( 1) If any person, after the commencement of this Act, gives or takes or r- abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years. (2) Nothing in sub-section (1) shall apply to, or in relation to,- (a) presents which are given at the time of a marriage ,.,. to the bride (without any demand having been ….. made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act: Provided further that where such presents are made by or on behalf of (he bride or any person related to the bride, such presents arc of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given." "4. Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may' extend to two years and with fine which may extend to ten thousand rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six c months."
39. Section 3 of the Dowry Act deals with penalty for giving and taking of dowry. The scope and ambit of section 3 is …, different from the scope and ambit of section 304-B IPC .
40. Section 4 of the Dowr}t Act deals with penalty for demanding dowry, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. The object of section 4 is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. Section 4 prohibits the t demand for 'giving' property or valuable security which demand, ,,…. if satisfied, would constitute an offence under section 3 read with section 2 of the Act.
41. Thus, the ambit and scope of sections 3 and 4 of the Dowry Act is different from the ambit and scope of section 498- A IPC.
42. The incorrect understanding of law has led to the erroneous judgment consequently leading to grave miscarriage "";\ of justice.
43. As far as conviction of respondent Santosh Kumar under section 302 IPC is concerned, there is no discussion in the impugned judgment of the High Court. The High Court failed to find any infirmity in the judgment of the trial court which A persuaded the High Court to set aside the trial court judgment.
44. All three dying declarations made by the deceased are totally consistent and lead to only one conclusion that the respondent Santosh Kumar had poured kerosene oil on. the B deceased and lit the fire. The fact is clearly corroborated from the testimonies of Dhani Ram PW1, the Investigating Officer Shiv Kumar Tyagi PW8 and the Tehsildar/Magistrate Rajesh Kumar Shrivastava PW13. The respondent is clearly guilty of offence under section 302 IPC. c
45. The High Court without assigning any cogent reason set aside a well reasoned judgment of the trial court and acquitted the resP,ondent under section 302 IPC. The impugned judgment of the High Court cannot be sustained.
46. This Court has always been slow in reversing the order of acquittal, particularly in a case where the other view is possible or plausible. We are fully conscious of our bounden obligation and duty that we are dealing with app.eal against acquittal by the High Court. Unfortunately, in ti·1e instant case, E on proper analysis of all three dying declarations, no other view is possible and the view taken by the High Court is perverse and unsustainable in law. …….
47. Consequently, this appeal is allowed. The impugned judgment of the High Court is set aside and that of the trial court F is restored as far as the sentence of the respondent under section 302 IPC is concerned. ·The accused Santosh Kumar is directed to surrender in order to serve out the remaining sentence.
48. This appeal is accordingly disposed of. t R.P. Appeal disposed of.