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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1297  OF 2011

Harish Kumar ... Appellant

Versus

State of Haryana         … Respondent

J U D G M E N T

PRAFULLA C.  PANT, J.

This  appeal  is  directed  against  judgment  and  order  

dated 7.12.2010, passed by the High Court of Punjab and  

Haryana in Criminal Appeal No. 310-SB of 2001 whereby the  

High Court has dismissed the appeal of the appellant Harish  

Kumar.   He was convicted by the Additional Sessions Judge,  

Hisar in Sessions Case No. 1 of 1994 under Sections 304B

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and 498A IPC, and sentenced to rigorous imprisonment for  

seven years.

2. We have heard learned counsel for the parties at length  

and perused the record of the case.

3. Brief facts of the present case are that accused Harish  

Kumar got married with Manisha (deceased) on 14.1.1992.  

The  couple  was  blessed  with  a  son  in  the  month  of  

November, 1992.  They used to live in Hansi in the district of  

Hisar, Haryana.  On 13.9.1993 at about 10.30 p.m., Manisha  

suffered burn injuries, and she was immediately taken by her  

husband Harish Kumar (appellant) to Civil/General Hospital  

where she was admitted at 11.00 p.m., i.e., within half an  

hour of the incident.  PW-1 Dr. M.L. Kalra, Medical Officer of  

said hospital, who admitted the patient, recorded following  

medico legal injuries:  

“Superficial burn injuries on anterior part of neck,  most  part  of  trunk,  right  side  of  back,  both  buttock, both thighs, including knees,  right foot,  most of left upper limb total area of burn 50-60%”.

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In  the  opinion  of  the  Medical  Officer  (PW-1),  nature  of  

injuries was dangerous to life, probable duration of injuries  

within  36  hours.  In  the  column  -  History/outdoor   -  

“accidental  burn  injuries”  were  mentioned  in  the  medico  

legal report (Copy Annexure P-1).  The Medical Officer sent a  

memo (Ruqa) Ext. PB to Police Station.  On next day, i.e.,  

14.9.1993,  a  dying  declaration  (Copy  Annexure  P-2)  was  

recorded  by  Baru  Ram,  Naib  Tehsildar  (DW-2)  in  the  

presence of Dr. Surender Singh (DW-1 ) of the Civil/General  

Hospital, Hansi.

4. In her dying declaration recorded on 14.9.1993 by the  

Naib Tehsildar  in  the presence of  the Medical  Officer,  the  

deceased  made  a  statement  of  which  English  translation  

reads as under: –

“My marriage was performed with Harish about two years   

back, and there is a son aged 9 months from the wedlock.   

There is no quarrel between us.  In the night of 13.9.1993 at  

about  10.30  p.m.,  all  of  a  sudden,   there  was  failure  of   

power.  I went to the room as I wanted to lit the lamp by  

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striking the match stick.  I had to take out milk to feed my   

child.  The match box was not in good condition.  I had to   

strike match sticks 3-4 times, and one of it fell on my maxi,   

which I was wearing at the time.  It caught fire from the side   

of bottom.  I tried to douse it.  But it kept on spreading.  On   

this I called my husband Harish, who put a blanket on me,   

and also poured 2-3 matkas of water on me.  Then he went   

out,  and  on  finding  a  scooter,  my  husband  took  me  to   

hospital.   No one has set  the fire  or  ablazed,  and it  was   

accidental.” (Emphasis supplied)

At the bottom of the above statement Dr.  Surender Singh  

DW-1  certified  that  Manisha  Bhatia  (deceased)  gave  the  

statement  in  his  presence  and  he  remained  present  

throughout the course of statement, and the patient was fit  

to give the statement.  From Annexure P-2 it reveals that it  

was recorded at 10.45 a.m. on 14.9.1993, and Manisha put  

her thumb impression under it.   It  was also mentioned in  

Annexure P-2 by PW-13 Sub Inspector Ami Chand, who was  

posted at Police Station, City Hansi, that the police received

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a memo (Ruqa) from the Medical Officer of the hospital, but  

when in  the  night  Constable  Patak  Singh went  there,  the  

patient was not in a fit condition to make the statement at  

that point of time.  It is further endorsed by PW-13 that on  

14.9.1993  on  the  instruction  of  Tehsildar  the  dying  

declaration was got recorded at the hands of Naib Tehsildar  

(DW-2),  after  taking  the  opinion  from the  Medical  Officer  

(DW1).   It  is  further  mentioned  at  the  end  of  the  

endorsement by PW-13 that it appears that on striking of a  

match stick in the night to lit the lamp, it fell and the maxi  

caught fire.  It is further endorsed that, however, the matter  

would be investigated, and action would be taken as per the  

findings.

5. It  further  reveals  from  the  record  that  parents  of  

Manisha were informed about the incident, and they visited  

her in the hospital.  It has also come on the record that later  

Manisha was referred to Rohtak Medical College for further  

treatment.

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6. On  19.9.1993  (about  five  days  after  the  incident)  

Manisha  succumbed  to  burn  injuries  (in  Rohtak  Medical  

College, Hospital).  It appears that her body was sealed by  

the police, and sent for post mortem examination.  PW-3 Dr.  

Nalini  Cooner conducted post  mortem examination on the  

very day (19.9.1993) and opined that cause of death of the  

deceased  was  due  to  burns  and  its  complications.   She  

further opined that burns were anti mortem in nature and  

were sufficient to cause death in ordinary course of nature.  

In her report, she further recorded that probable time that  

elapsed  between  death  and  post  mortem  was  within  24  

hours.

7. It appears that though the parents of the deceased not  

only visited their daughter in the hospital, but also came to  

see her dead body before the same was cremated, but no  

information was given to the police till 23.9.1993.  It is only  

on 23.9.1993 PW-8 Subhash Chand (father of the deceased)  

gave First Information Report alleging that husband of the  

deceased and her in-laws harassed her for non-fulfillment for

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demand of dowry.  He alleged that accused Harish Kumar  

asked him to buy a house for him but he was not able to  

fulfill the demand.  It is also alleged in the First Information  

Report  by the informant that his son-in-law Harish Kumar  

also made demand of scooter for which he paid Rs.11,000/-  

to  him,  but  the  accused  insisted  for  full  amount  of  

Rs.20,000/-.  He (PW-8) admitted (in the FIR) that he went to  

Rohtak Medical College to see his daughter but she was in  

unconscious  condition.   Informant  Subhash  Chand  (PW-8)  

stated in the Report that he was told by “KISI” that Manisha  

told him/her that at the time her statement was recorded by  

the Magistrate, she (deceased) was under threat of Harish,  

else he would have killed her son.

8. On  the  above  report  FIR  No.  284  was  registered  at  

Police Station, City Hansi at about 7.50 p.m. on 25.9.1993.  

After interrogation of the witnesses, the Investigating Officer,  

PW-11, Inspector Jai Prakash, the then Station House Officer  

of Police Station, City Hansi, arrested accused Harish Kumar,  

his younger brother Krishna and his mother Ishwari Devi.  On

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conclusion  of  investigation  charge  sheet  appears  to  have  

been  filed  against  all  the  three  accused  for  their  trial  in  

respect of offences punishable under Sections 498A, 304B  

and 506 IPC.  The Sessions Judge, on committal of the case,  

after  hearing  the  parties,  framed  charge  of  offences  

punishable under Sections 498A and 304B IPC and, in the  

alternative, charge of offence punishable under Section 302  

IPC read with Section 34 IPC on  2.2.1994 against  all  the  

three  accused  who  pleaded  not  guilty  and  claimed  to  be  

tried.

9. Prosecution  got  examined  PW-1  Dr.  M.L.  Kalra  (the  

Medical  Officer  who recorded medico  legal  injuries  at  the  

time  of  admission  in  the  hospital),  PW-2  Shamsher  Singh  

(formal  witness),  PW-3  Dr.  Nalini  Cooner  (who  conducted  

post  mortem examination),  PW-4  Subhash Chand (alleged  

landlord),  PW-5  Hans  Raj  (neighbour  of  the  accused  and  

deceased), PW-6 Raj Rani (aunt of the deceased), PW-7 S.I.  

Dharampal  (formal  witness),  PW-8  Subhash  Chand  

(informant and father of the deceased), PW-9 Veena Bhatia

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(mother of the deceased), PW-10 Hari Chand (grandfather of  

the  deceased),  PW-11  Inspector  Jai  Prakash  (who  

investigated the crime), PW-12 Inspector Ram Dhan (formal  

witness)  and PW-13 Sub Inspector  Ami  Chand (who made  

endorsement in the dying declaration dated 14.9.1993).

10. Oral and documentary evidence was put to the accused  

Harish Kumar on 10.2.1999 under Section 313 CrPC in reply  

to which he alleged that the evidence adduced against him  

is false.  Other accused also pleaded the same.  In defence  

DW-1  Dr.  Surender  Singh,  Medical  Officer  of  Civil/General  

Hospital before whom dying declaration was recorded, and  

DW-2  Baru  Ram,  Naib  Tehsildar,  who  recorded  the  dying  

declaration, were examined.

11. The trial court, after hearing the parties, found that the  

prosecution  has  sufficiently  proved  charge  of  offence  

punishable under Sections 498A and 304B IPC against all the  

three  accused,  namely,  Harish  Kumar  (husband),  Krishna  

(brother-in-law) and Ishwari  Devi  (mother-in-law) and after  

hearing on sentence each one of  them was sentenced to

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seven years rigorous imprisonment under Section 304B IPC  

with the observation that no separate sentence is required to  

be  awarded  under  Section  498A IPC  in  the  light  of  Smt.  

Shanti and another v. State of Haryana1.

12. Aggrieved  by  said  judgment  and  order  dated  

28.2.2001/1.3.2001, passed in Sessions Case No. 1 of 1994,  

all  the  three convicts  filed  Criminal  Appeal  No.  310-SB of  

2001.  The High Court after hearing the parties, allowed the  

appeal  of  co-accused Ishwari  Devi  and Krishna,  PW 4 has  

stated that said two accused were not living with deceased  

and  her  husband.   However,  the  appeal  of  Harish  Kumar  

(husband) was dismissed.  Hence, this appeal before us by  

the accused Harish Kumar by way of Special Leave Petition.  

The leave was granted by this Court on 4.7.2011.

13. Before further discussion we think it just and proper to  

mention  the  relevant  provisions  of  law  applicable  to  this  

case.  Section 304B IPC reads as under: -

“304B. Dowry death. – (1) Where the death of a  woman is caused by any burns or bodily injury or  

1 AIR 1991 SC 1226

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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.

Explanation –  For  the  purpose  of  this  sub- section “dowry” shall have the same meaning as  in section 2 of the Dowry Prohibition Act, 1961 (28  of 1961).

(2) Whoever  commits  dowry  death  shall  be  punished with imprisonment for a term which shall  not  be  less  than  seven  years  but  which  may  extend to imprisonment for life.”

14. Section 498A IPC reads as under: -

“498A. Husband or relative of husband of a  woman 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.

Explanation. – For the purpose of this section,  “cruelty” means –

(a) any wilful conduct which is of such a nature as  is likely to drive the woman to commit suicide  or to cause grave injury or danger to life, limb  or health (whether mental or physical) of the  woman; or

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(b) harassment  of  the  woman  where  such  harassment is with a view to coercing her or  any  person  related  to  her  to  meet  any  unlawful demand for any property or valuable  security or is on account of failure by her or  any  person  related  to  her  to  meet  such  demand.”

15. Section 113B of the Indian Evidence Act, 1872 provides  

as under: -

“113B.  Presumption  as  to  dowry  death.  –  When  the  question  is  whether  a  person  has  committed the dowry death of a woman and it is  shown that  soon  before  her  death  such  woman  has been subjected by such person to cruelty or  harassment for, or in connection with, any demand  for  dowry,  the  Court  shall  presume  that  such  person had caused the dowry death.

Explanation – For the purpose of this section,  “dowry death” shall have the same meaning as in  Section  304B  of  the  Indian  Penal  Code  (45  of  1860).”

16. From  the  language  of  Section  304B  IPC  read  with  

Section 113B of the Indian Evidence Act it is clear that once  

death of a woman is caused by any burn or bodily injury or  

occurs  otherwise  than  under  normal  circumstances  within  

seven years of her marriage,  and if  it  is  shown that soon  

before her death she was subjected to cruelty or harassment

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by her husband or any relative of her husband in connection  

with  demand of  dowry,  such  husband or  relative  shall  be  

deemed  to  have  caused  her  death  and  the  court  shall  

presume it.  In other words, in the cases of dowry death, as  

defined in Section 304B IPC, after evidence adduced by the  

prosecution and conditions mentioned in Section 113B Indian  

Evidence Act, are fulfilled, court has to take a presumption,  

and burden shifts on the accused to rebut the presumption.

17. As  far  as  cruelty  on  account  of  demand of  dowry  is  

concerned,  there is  sufficient evidence adduced by PW 8  

Subhash Chand (father of deceased) and PW 9 Veena Bhatia  

(mother of deceased) which is corroborated by PW 5 Hansraj  

(neighbour)  and  PW  10  Harichand  (grand  father  of  the  

deceased)  to  establish  the  charge.   As  such  we  are  not  

inclined to interfere with the conclusions of the trial  court  

and that of  High Court, with regard to the fact that charge  

under  Section  498A  IPC  stands  proved  against  accused  

Harish  Kumar.   But  the  finding  as  to  whether  death  of  

deceased  was  accidental  or  not,  requires  careful  scrutiny  

particularly in view of the fact that deceased has given dying

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declaration five days before her death to the public servant  

in  the  presence  of  medical  officer,  after  police  requested  

Tehsildar for recording the same.

18. Learned  counsel  for  the  appellant  submitted  that  by  

proving  dying  declaration  of  the  deceased,  recorded  on  

14.9.1993  by  getting  examined  DW-2  Baru  Ram,  Naib  

Tehsildar and DW-1 Dr.  Surender Singh, Medical Officer of  

the hospital, in whose presence the statement was recorded,  

the  accused  has  discharged  the  burden  to  rebut  the  

presumption which could be drawn under Section 113B of  

the Indian Evidence Act.  It is further argued that the courts  

below have erred in law in ignoring the dying declaration of  

the deceased.

19. On  the  other  hand,  on  behalf  of  the  State  it  is  

contended  that  the  dying  declaration  dated  14.9.1993  is  

given  by  the  deceased under  threat  from accused  Harish  

Kumar, as such the courts below have rightly not relied upon  

it.

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20. We have considered the rival submissions of the parties  

and carefully scrutinized the record.  There are certain facts  

which cannot be ignored in this case.  Firstly, immediately  

after the incident at 10.30 p.m. on 13.9.1993, within half an  

hour the husband took his wife Manisha to the hospital and  

got her admitted.  It is not disputed fact that the husband  

took  the  deceased  to  Civil/General  Hospital,  Hansi  where  

medico  legal  examination  was  recorded by  PW-1 Dr.  M.L.  

Kalra at the time of admitting the patient (Manisha).  It is  

also  not  disputed  that  the  parents  of  the  deceased  were  

informed about  the incident  and they visited their  injured  

daughter in the hospital, as is apparent from the statements  

of  PW-8  Subhash  Chand  (informant  and  father  of  the  

deceased) and PW-9 Veena Bhatia (mother of the deceased).  

We  have  already  discussed  above  that  Manisha  died  on  

19.9.1993, five days after the incident.  It has also come on  

the record that PW-1 Dr. M.L. Kalra sent a memo (ruqa) to  

police, on which, as stated by PW-13 SI Ami Chand, request  

was sent to Tehsildar for recording of dying declaration.  PW-

13  SI  Ami  Chand  has  stated   that  Tehsildar  marked  the

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request of the police to the Naib Tehsildar on which Naib  

Tehsildar on 14.9.1993 recorded the dying declaration.  It is  

also relevant to mention here that DW-1 Dr. Surender Singh,  

Medical Officer of the hospital where Manisha was admitted,  

was present at the time of recording of dying declaration and  

he  made  the  endorsement  that  the  patient  was  in  a  fit  

condition to make it.

21. In the above circumstances, we are of the view that the  

courts  below  have  erred  in  law  in  not  relying  the  dying  

declaration recorded by the Naib Tehsildar in the presence of  

the Medical Officer, on the request of the police.  Strangely,  

in the First Information Report informant and father of the  

deceased Subhash Chand (PW 8) has attempted to explain  

the  dying  declaration  already  recorded  on  14.9.1993  by  

mentioning, “MUJHE PATA CHALA KI MERI LADKI MANISHA NE  

HARISH KE KAHNE PAR JO MAGISTRATE KE SAMNE BAYAAN  

DIYA THA MANISHA DARA DHAMKA RAKHI THI KI LADKE KO  

BHI JAAN SE MAAR DEGA.  MANISHA NE KISI KO YEH BAAT  

KAHI THI KI MERE PITAJI MILEN TO UNKO YEH BAATTEN BATA

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DENA.”   (  I  came  to  know  that  my  daughter  who  made  

statement before the Magistrate was under threat from her  

husband that her son would be killed.  Manisha told this to  

“KISI” (someone) whom she requested to convey it to her  

father.)  The prosecution has attempted to explain the Hindi  

word “KISI” (someone) by saying that it was nick name of  

PW-6  Raj  Rani  (aunt  of  the  deceased).   The  explanation  

given by the witnesses as to the nick name of PW-6 Raj Rani,  

is not convincing as PW-6 Raj Rani is admittedly a real sister-

in-law of the informant, and real aunt of the deceased.  As  

such there should have been no difficulty for the informant  

to mention in the First  Information Report that it  was the  

aunt of the deceased to whom Manisha told to convey the  

above alleged fact.

22. PW-1  Dr.  M.L.  Kalra,  Medical  Officer  of  Civil/General  

Hospital,  Hansi,  in  his  cross-examination,  has  stated  as  

under: -

“The patient was brought to the hospital  by her  husband Harish Bhatia.  She was not unconscious  when she was brought to the hospital….”

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In the examination-in-chief of this witness it has been stated  

by him, - “she gave history of accidental burn injuries”.  This  

fact  recorded  by  PW-1  in  the  medico  legal  report  (copy  

Annexure  P-1)  further  corroborates  the  dying  declaration  

recorded  on  the  next  day  (on  14.9.1993)  by  the  Naib  

Tehsildar.   Needless to say that DW-1 Dr.  Surender Singh  

and  DW-2  Baru  Ram,  Naib  Tehsildar,  are  not  interested  

witnesses.   Rather  they  are  independent  public  witnesses  

who  have  discharged  their  duties  after  the  police  

approached Tehsildar  in  response to memorandum (Ruqa)  

received from PW-1 Dr. M.L. Kalra.

23. Considering the above facts and circumstances, we find  

that  the  dying  declaration  dated 14.9.1993,  made by  the  

deceased,  before Naib Tehsildar in the presence of Medical  

Officer,  is voluntary and truthful.   In  Surender Kumar  v.  

State of Punjab2, this Court has observed, in para 20, as  

under: -

“It is also not obligatory that either an Executive  Magistrate  or  a  Judicial  Magistrate  should  be  present  for  recording  a  dying  declaration.   It  is  

2 (2012) 12 SCC 120

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enough that there is  evidence available to show  that  the  dying  declaration  is  voluntary  and  truthful.  There could be occasions when persons  from the family of the accused are present and in  such a situation, the victim may be under some  pressure  while  making  a  dying  declaration.   In  such a case, the court has to carefully weigh the  evidence and may need to take into consideration  the  surrounding  facts  to  arrive  at  the  correct  factual position.”

24. In  Nallam  Veera  Stayanandam  and  others  v.  

Public  Prosecutor,  High  Court  of  A.P.3,  in  the  similar  

facts and circumstances of the case, this Court, at the end of  

para 6, has observed as under: -

“In  cases  where  there  is  more  than  one  dying  declaration, it is the duty of the court to consider  each of them in its correct perspective and satisfy  itself which one of them reflects the true state of  affairs.”

25. Therefore,  in view of the law laid down by this Court as  

above,  in the present case we find sufficient evidence that  

the  defence  has  discharged  its  onus  to  rebut  the  

presumption that could have been gathered under Section  

113B  of  the  Indian  Evidence  Act,  in  respect  of  offence  

punishable  under  Section  304-B  I.P.C   That  being  so,  

following the principle of law laid down in  Nallam Veera  3 (2004) 10 SCC 769

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Stayanandam and others  v.  Public  Prosecutor,  High  

Court  of  A.P.  (supra),  we  uphold  the  conviction  of  the  

appellant  Harish  Kumar  under  Section  498A  IPC,  and  

sentence him to rigorous imprisonment for a period of three  

years, which he has already undergone, and set aside the  

conviction and sentence recorded against the appellant, in  

respect of the offence punishable under Section 304B IPC.  

The appellant is on bail.  He need not surrender.  Accordingly  

the appeal stands partly allowed.

………………………………J. [Vikramajit Sen]

………………………………J.                                               [Prafulla C. Pant]

New Delhi; December 16, 2014.