Page 1

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 292  OF 2011

PRADEEP KUMAR        … APPELLANT

VERSUS

STATE OF HARYANA        … RESPONDENT

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This  appeal  is  directed  against  the  judgment  dated  3rd  

February, 2010, passed by the High Court of Punjab and Haryana at  

Chandigarh  in  CRA  No.909-SB  of  1997.  By  the  impugned  common  

judgment  the  High  Court  dismissed  the  revision  application  

preferred  by  the  appellant  and  affirmed  the  conviction  and  

sentence for the offence punishable under Section  498-A and 304-B  

IPC passed by the Sessions Judge, Karnal vide judgment dated 1st  

August, 1997.

2. The case of the prosecution is that Manju alias Uma Devi had  

been married to the accused Pradeep Kumar on 20th June, 1995. On 1st  

March, 1996 she received burn injuries and was got admitted in the  

Medical College Hospital, Rohtak. On 2nd March, 1996, she made her  

dying declaration before the Chief Judicial Magistrate, Rohtak. In  

the first part of the said dying declaration she asserted that it  

was a case of accident, whereas in the latter part she alleged  

that her husband had been pressing to fetch a sum of Rs. One lakh  

from her parents and had been threatening to kill her if she did  

not bring the money. She also alleged that around 5.30 a.m. on 1st  

March, 1996 her husband doused her in kerosene from behind and set  

her on fire and later on he tried to save her when she raised  

alarm and on doing so his hands got burnt.  

On the basis of this statement, First Information Report was  

recorded against the accused. The matter was investigated. On 12th  

March,  1996  Manju  alias  Uma  died.  Thereafter,  the  case  was  

converted  under  Section  304-B  IPC  and  after  completion  of  

1

Page 2

investigation  challan  was  presented  in  the  Court  and  on  

commitment, the accused was charged in the manner noticed above.

3. In support of their case, prosecution examined 9 witnesses.  

Usha (PW-6), mother of the deceased and Sapattar Singh (PW-8),  

father of the deceased are the material witnesses.  

4. On appreciation of evidence and hearing the parties learned  

Sessions Judge, Karnal, observed as follows:

“20. From the totality of the discussion noticed  herein above it would appear that the accused had  been responsible for the murder of his wife and  also  of  causing  torture  and  harassment  to  her.  However,  since  he  has  been  charged  only  under  Section 498-A and 304-B Indian Penal Code, I would  hold him guilty for the said offence and convict  him  there  under  which  are  lesser  offences  than  Section 302 Indian Penal Code. I call upon the  accused  to  address  argument  and  to  show  the  extenuating circumstances and to address arguments  on the quantum of sentence.”

5. Learned counsel for the appellant submitted that the medical  

evidence is contrary to the prosecution story and does not support  

the case of the prosecution. In this regard it was contended that  

if kerosene oil was poured on the deceased from behind then the  

burns would have been on the back of the deceased. However, the  

medical report/postmortem report does not find any burn injuries  

on the back of the deceased. It was further contended that the  

Trial  Court  and  the  High  Court  failed  to  appreciate  that  the  

occurrence was an accident as injuries were on the face, chest,  

and legs of the deceased which show and prove that the kerosene  

oil fell on her after bursting of kerosene stove.

6. Learned  counsel  further  submitted  that  so  called  dying  

declaration  cannot  be  relied  upon,  as  first  part  of  it  is  

contradictory to the second part.

7. In the present case, Usha Devi (PW-6), mother of the deceased  

and Subedar Sapattar Singh (PW-8), father of the deceased are the  

material witnesses.

8. Usha Devi (PW-6), in her deposition stated that Manju, her  

daughter was married to the accused Pradeep Kumar on 20th June,  

1995. In the evening of 1st March, 1996 at about 7 p.m. Jal Singh  

2

Page 3

came to her and told her that the health of Manju was not proper  

and that she was admitted in Medical College Hospital, Rohtak. She  

reached Medical College Hospital, Rohtak around 12/12.30 a.m. In  

the Hospital the accused Pradeep Kumar and Santosh met her and  

told that Manju had received burns from a stove. When she went to  

see her daughter, Manju told her that she had got up around 5.30  

a.m. when the accused Pradeep Kumar doused her in kerosene and set  

her on fire. She then stayed with her daughter, who died on 12th  

March, 1996. She stated that she did not know whether her daughter  

ever made a statement to the Magistrate. She further stated that  

her daughter had told her that there used to be quarrel in the  

family as the accused used to demand for Rs.1 lakh for running a  

piggery farm.

In her examination-in-chief, Usha Devi (PW-6),mother of the  

deceased deposed that when she reached the Hospital  to see her  

daughter, the accused and other persons were present there so her  

daughter could not disclose anything to her. The Police did not  

record  her  statement  so  long  she  was  admitted  in  the  Medical  

College Hospital, Rohtak. She further stated that on 24th March,  

1996 she had stated before the Police that her daughter Manju had  

told her that she received burn injuries from stove. Earlier she  

had  a  statement  before  Police  on  13th March,  1996  wherein  she  

stated that she had faith in the statement of Manju made before  

the Magistrate. She denied the suggestion that she had deposed  

before the Police that her daughter told her that she received  

burn injuries on account of bursting of stove. However, when she  

was confronted with portion ‘A’ to ‘A’ in Ex.DA it was found to  

have been so recorded.  

9. Subedar Sapattar Singh (PW-8), stated that on 3rd March, 1996,  

he received a telephonic call from his wife from Rohtak that his  

daughter had been burnt and that he should come immediately. After  

obtaining leave from his Company Commander, he came to Rohtak by  

the  evening  of  4th March,  1996.  He  talked  to  his  daughter  

(deceased). She told him that she had already made a statement to  

the Magistrate which should be accepted by them. When he talked to  

his daughter in the absence of others she told him that she and  

3

Page 4

her husband wanted to open a piggery farm, and that Santosh Devi  

came to their house and told Pardeep Kumar-accused to obtain a sum  

of rupees one lakh from his father-in-law i.e himself and that he  

should not apply for a loan. Pardeep at the instance of Santosh  

pressurized his wife(deceased) and also abused her physically in  

order to coerce her to meet the demand. PW.8 further stated that  

on  20th January,  1996,  he  received  a  letter  from  his  daughter  

stating that the accused wanted a colour television. In the month  

of January his daughter and Pradeep came to his house and his  

daughter told him that she needed her Matriculation Certificate as  

she had to apply for a loan for piggery farm. She told that mother  

of Pradeep did not provide food to her. On 12th, his daughter died  

and on 13th the dead body was taken to village Ardana because the  

people from Ardana were in large number and in Rohtak he himself  

and his wife were only present.  

During the cross-examination, Sapattar Singh (PW-8), stated  

that on 4th March, 1996 his daughter did not tell anything beyond  

the  fact  that  she  had  already  made  a  statement  before  the  

Magistrate which should be accepted by them. He remained with his  

daughter from 4th March, 1996 till her death. During this period no  

police  officer  met  him.  Police  came  to  the  Medical  College  

Hospital on 13th March, 1996 and he made a statement before the  

Police.

10. Shri A.K. Bimal, CJM, Rohtak in his deposition stated that on  

2nd March, 1996, ASI, Jai Prakash moved an application Ex.PA to him  

to record the statement of Manju wife of Pradeep Kumar, who was  

admitted in the Medical College Hospital, Rohtak. He proceeded to  

the Hospital and reached there at about 2 p.m. He obtained the  

opinion of the Doctor regarding the fitness of the patient. The  

Doctor gave his opinion Ex.PA/1 that the patient was fit to make a  

statement. Thereupon, he recorded the statement of Manju alias Uma  

Devi – EX.PB. It was read out to her and she gave thumb mark on it  

in token of its correctness. The Doctor attending upon the patient  

gave his endorsement Ex.PB/1 that the patient remained fit to make  

statement  throughout  the  period  of  making  the  statement.  After  

recording the statement he allowed a copy of it to be taken by the  

4

Page 5

Police and made his endorsement Ex.PB/2 in this connection. The  

patient was identified by the Doctor attended upon the patient.  

The patient had made two statements at the same time. Both these  

statements were made by her in sequence and were recorded at the  

same time one after the other.

In his cross-examination, CJM stated that after recording of  

the first part of the statement when he asked the patient to put  

her thumb impression the patient told him that she wanted to make  

a truthful statement provided he did not say to anybody else. He  

asked the patient to put her signatures. But she was not in a  

position to put her signatures, therefore, her thumb impressions  

were taken.

11. Ex.PA is the dying declaration which reads as follows:

“Copy of writing in as under:-

Q. Are you married? Ans. I am married and having pregnancy of 7 month.  

After getting myself examined in ultra-sound,  I have come to know that the foetus has been  smashed.

Q. How many years of your marriage have passed? Ans. My marriage was performed on 20.6.95.

Q. How you caught fire? Ans.  Yesterday  at  5.30/6.00  a.m.  I  started  

preparing  tea  outside  the  varandah.  My  husband was sleeping in the last room. When  the  pump  of  stove  was  pressed  to  air  and  match stock was lit on, the stove at once got  burst and the terrycot suit worn by me caught  fire and when I raised alarm  

RO& AC    Sd/- C.J.M. 2.3.1996

Again said my statement be recorded again, because  this statement was tutored to me by my husband.  Now I want to make the statement again. You may  not show the statement to anybody. Q. What happened with you? Ans. A dispute was going on with my husband for  

the last 10/15 days and he used to beat me  and used to remain at the house and was doing  nothing. One day my husband tried to hang me  to  death  and  demanded  Rs.One  Lakh  from  my  parents otherwise he would hang me to death.  He first tried to burn me in the night and  

5

Page 6

when in the morning at 5.30 a.m. I went to  bathroom he sprinkled the oil on the clothes  from my back side and lit on the match stick  and  rushed  towards  inside.  I  raised  noise  upon  which  other  persons  saved  me.  Thereafter, my husband came there. He  torn  my clothes at the spot. I have been brought  to  Rohtak  because  I  had  been  told  that  I  shall  narrate  all  this  to  the  police.  My  mother-in-law prepares the meals herself. She  prepares meals for my sister-in-law but she  does not provide meals to me.

Q. Why did you make wrong statement earlier? Ans.  I  was  made  to  understand  to  make  such  

statement.  Q. Are you literate? Ans. Yes. I am matriculate.

RO & AC.

R.T.I. of Manju

Certified  that  patient  remained  fit  throughout her statement.

Sd/-A.K. Vimal, S.J.M. Rohtak,  2.3.96 at 2.30 P.M.”

On  going  through  the  dying  declaration,  we  find  that  the  

second  part  of  dying  declaration  inspires  confidence  so  as  to  

consider it to be a dying declaration of the deceased. The first  

part of the dying declaration is tutored by the accused-husband as  

apparent from the said part of the dying declaration.

12. Dr. S.S. Dahiya (PW-7) conducted postmortem examination on the  

dead body of Manju wife of Pradeep Kumar. He stated that there was  

superficial to deep burns all over the body except face scalp,  

both legs and feet and a part of left upper arm. Pockets of pus  

were preset at some places. Liver spleen kidneys and both lungs  

were congested. In his opinion the cause of death in this case was  

burns which were ante mortem in ordinary cause of events. Probable  

time that elapsed between injury and death was within few hours to  

few days and between death and postmortem was about 24 hours.  

In  his  cross-examination,  Dr.S.S.Dahiya  (PW-7)  stated  that  

since the body of the deceased had been burnt it was unlikely that  

6

Page 7

marks of the other injuries could be seen. If the deceased was  

sitting in front of the stove and the stove got burst she could  

have received injuries on her face and scalp which were not there  

in this case. He agreed with the suggestion that if kerosene was  

poured from behind the deceased and she was put on fire there  

would be injuries on the back side of the deceased. It is possible  

that the deceased could receive burn injuries if on account of  

pinning of the stove the oil and the flame left from the stove but  

in that case also the face and scalp should have been burnt which  

was not there in this case.

13. On going through the dying declaration, we have held that the  

second  part  of  dying  declaration  inspires  confidence  so  as  to  

consider it to be a dying declaration of the deceased. The first  

part of dying declaration is tutored by the accused-husband as  

apparent from the said part of the dying declaration.

14. Usha Devi (PW-6), mother of the deceased-Manju stated that  

Manju had told her that there was a quarrel in the family because  

the accused had been making a demand of Rs. One lakh for running a  

piggery farm. Manju had also sent a letter to her father making a  

demand of Rs.5,000/-. Letter is Ex.PJ.

15. Sapattar Singh (PW-8), father of the deceased has also deposed  

with regard to the demand of the appellant. Although, appellant  

donated blood to save the life of his wife but it was of no use as  

it was too late. The deceased in the dying declaration stated that  

her husband had stated that he would hang her to death if his  

demand for Rs.1 lakh is not met by her parents and on 1st March,  

1996, her husband tried to hang her. The appellant had initially  

tried to set her on fire during the night and when in the morning  

at 5.30 a.m. she went to bathroom he sprinkled the oil on the  

clothes from her back side and set her on fire.  She categorically  

stated  that  earlier  part  of  the  statement  was  made  at  the  

instigation of her husband. The deceased had no reason to falsely  

implicate her husband particularly when she had suffered from burn  

injury.

7

Page 8

16. From  the  aforesaid,  evidence  of  Sapattar  Singh  (PW-8)  and  

dying declaration, we find that there was a demand of dowry and  

harassment soon before the death.

17. For the purpose of Section 304-B IPC, a presumption can be  

raised only on the proof of the following essentials:

“(a) Death of a woman took place within seven  years of her marriage.

(b) Such death took place not under normal  circumstances.

(c)  The  woman  was  subjected  to  cruelty    or  harassment by her husband or his   relatives.

(d)Such  cruelty  or  harassment  was  for,  or  in  connection with, any demand for dowry and

(e) Such  cruelty  or  harassment  was  soon  before her death.

18. The expression “soon before her death” used in the substantive  

Section 304-B IPC and 113-B of the Evidence Act was considered by  

this Court in Hira Lal  & Others Vs. State (Govt. of NCT), Delhi,  

(2003)8 SCC 80, which reads as follows:

“8. Section 304-B IPC which deals with dowry death,  

reads as follows:

“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.

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.” The provision has application when 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  

8

Page 9

before  her  death  she  was  subjected  to  cruelty  or  harassment by her husband or any relatives of her  husband for, or in connection with any demand for  dowry. In  order  to attract  application  of  Section  304-B IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns  or bodily injury or otherwise than under a normal  circumstance.

(ii)  Such  a  death  should  have  occurred  within  seven years of her marriage.

(iii) She must have been subjected to cruelty or  harassment  by  her  husband  or  any  relative  of  her  husband.

(iv) Such cruelty or harassment should be for or  in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have  been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant  for the case at hand. Both Section  304-B  IPC  and  Section 113-B of the Evidence Act were inserted as  noted earlier by Dowry Prohibition (Amendment) Act 43  of 1986 with a view to combat the increasing menace  of dowry deaths. Section 113-B reads as follows:

“113-B.  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 had 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  purposes  of  this  section,  ‘dowry  death’  shall  have  the  same  meaning  as  in  Section 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has  been amply analysed by the Law Commission of India in  its 21st Report dated 10-8-1988 on “Dowry Deaths and  Law Reform”. Keeping in view the impediment in the  pre-existing law in securing evidence to prove dowry- related deaths, the legislature thought it wise to  insert a provision relating to presumption of dowry  death on proof of certain essentials. It is in this  background  that  presumptive  Section  113-B  in  the  Evidence Act has been inserted. As per the definition  of “dowry death” in Section 304-B IPC and the wording  in the presumptive Section 113-B of the Evidence Act,  one of the essential ingredients, amongst others, in  both the provisions is that the woman concerned must  have  been  “soon  before  her  death”  subjected  to  cruelty or harassment “for or in connection with the  demand of dowry”. Presumption under Section 113-B is  a  presumption  of  law. On  proof  of  the  essentials  mentioned therein, it becomes obligatory on the court  

9

Page 10

to raise a presumption that the accused caused the  dowry death. The presumption shall be raised only on  proof of the following essentials:

(1) The question before the court must be whether  the  accused  has  committed  the  dowry  death  of  the  woman. (This means that the presumption can be raised  only if the accused is being tried for the offence  under Section 304-B IPC.)

(2)  The  woman  was  subjected  to  cruelty  or  harassment by her husband or his relatives.

(3)  Such  cruelty  or  harassment  was  for  or  in  connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her  death.”

19. In the present case, it is not in dispute that marriage took  

place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar  

got burnt on 1st March, 1996 and died on 12th March, 1996 within  

nine months of her marriage. Death of Manju was caused by burns  

i.e.  otherwise  than  under  normal  circumstances.  It  has  already  

been seen that soon before her death she was subjected to cruelty  

and harassment in connection with demand of dowry. All the five  

ingredients were proved by the prosecution. Under Section 113-B of  

the Evidence Act when a question arises whether a person committed  

dowry death and it is proved that the death of woman took place  

within seven years of marriage; such death took place not under  

normal  circumstances  and  soon  before  the  death  deceased  was  

subjected  to  cruelty  or  harassment  by  such  person  for  or  in  

connection with any demand for dowry, the Court shall presume that  

such person had caused the dowry death. The prosecution having  

successfully proved the dowry death, the Trial Court and the High  

Court  correctly  held  the  accused  Pradeep  Kumar  guilty  of  the  

offence under Section 304B.

20. Section 498-A IPC reads as follows:

“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,  

10

Page 11

“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  (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.”

21. In the present case, on the basis of the evidence of  Subedar  

Sapattar Singh (PW-8) and dying declaration, it can be clearly  

concluded that the Trial Court and the High Court rightly held  

that the accused Pradeep Kumar had subjected Manju to harassment  

as defined under Clause (b) of explanation to Section 498-A.

22. In view of the aforesaid observation and finding, we find no  

ground  to  interfere  with  impugned  judgment.  In  absence  of  any  

merit,  the  appeal  is  dismissed.  Bail  bond  stands  cancelled.  

Appellant is directed to be taken into custody forthwith to serve  

the remainder period of sentence.

………………………………………………J.                   (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.            (S.A. BOBDE) NEW DELHI, JULY 2, 2014.

11