STATE OF U. P. v. SANTOSH KUMAR

Citation: [2009] 14 S.C.R. 106

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

STATE OF U. P. v. SANTOSH KUMAR.pdf

Judgment text

[2009] 14 (ADDL. ) S. C. R. 106 ~ I STATE OF U. P. I. v. SANTOSH KUMAR (Criminal Appeal No. 1199 of 2001) SEPTEMBER 3,2009 [DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ. ] t· Penal Code, 1860 : ss. 302, 304-B, 498-A, and ss. 3 and 4 of Dowry Prohibition Act-A married woman harassed for dowry and burnt alive-Conviction by trial court u/ss. 302134 and 498-A /PC and ss. 3 and 4 of Dowry Act-Acquittal by High Court holding that charge uls. 304-B against the ac~used having J' failed, they could not be convicted for other offences-Held: ~ The conclusion of High Court is erroneous and unsustainable in /aw-Even if there is acquittal u/s. 304-B, still conviction u/ s. 498-A can be recorded-Again ambit and scope of ss. 3 and 4 of Dowry Act is different from that of ss. 304-B and 498- A /PC-Ingredients of ss. 304-B and 498-A /PC-Explained- Ambit and scope oi ss.

3 and 4 of Dowry Act-Explained- All the three dying declarations including the one recorded by the Tehsildar/Magistrate clearly established the guilt of accused-No other view except that taken by trial court is possible and the view taken by High Court is perverse and unsustainable in law-Judgment of High Court set-aside and that of trial court restored as far as sentence imposed on respondent u/s 302 is concerned-Appeal against accused who died pending appeal, abated-Abatement of appeal- Dowry Prohibition Act, 1961-ss. 3 and 4-Evidence-Dying declaration-Minor discrepancies in evidence-Effect of. - . :t Constitution of India, 1950-Artic/e 136-Appeal against judgment of acquittal passed by High Court-Scope of. The respondent, one of the brothers of the husband STATE OF U. P. v. SANTOSH KUMAR I 107 ...... of the deceased, along with his uncle and mother, was prosecuted for commission of offences punishable u/ss. 302/34, 304-8, 498-A IPC and ss.

3 and 4 of the Dowry Prohibition Act, 1961, on the allegations that the accused harassed the bride for dowry and on the day of incident the respondent-accused, on exhortation of other 8 accused, poured kerosene on her and set her on fire causing her death. The trial court convicted and -i sehtenced the respondent u/ss. 302 and 498-A IPC and ss. 3 and 4 of the Dowry Prohibition Act He was, however, acquitted of the charge u/s 304-8 IPC. The other accused were oonvicted and sentenced u/s 498 IPC and ss. 3 and 4 of the Dowry Act. They were acquitted of the charges u/s 302/34 and 304-8/34 IPC. On appeal, the High Court acquitted all the accused of all the charges. Aggrieved, ... the State filed the appeal. During pendency of the appeal, """ two of the respondent-accused died and the appeal as regards them abated. Allowing the appeal as. regards the surviving respondent, the Court HELD : 1. 1. The finding of the High Court that when ,>.. the charge u/s.

304-8 IPC was held to have failed, there was no logic in convicting the accused for offences punishable u/ss. 3 and 4 of the Dowry Prohibition Act, 1961 as well as u/s. 498-A IPC, is palpably wrong and unsustainable in law. The ingredients of s. 498-A IPC and ss. 3 and 4 of the Dowry Act are different from the ingredients of s. 304-8 IPC. The demand of dowry is an essential ingredient to attract s. 304-8 IPC, whereas u/ s. 498-A IPC the demand of dowry is not the basic ingredient of the offence. Therefore, even if there is "" acquittal u/s. 304-8 IPC, still conviction under section 498A can be recorded under the law. [Para 20, 21 and 37] [116-D-F; 121-F-G] 1. 2. On analysis of the s.

304-8 IPC, the essential ~ ingredients that emerge are : (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) that death of such woman, (a) was caused by any burns, or bodily injury, or (b) occurred otherwise than under normal circumstances; (iv) that such . death was caused within seven years of the marriage of that woman; (v) that soon before her death such woman. was subjected to cruelty, or harassment; (vi) that the accused had subjected such woman to such cruelty or harassment for, or in connection with any demand for dowry. IPara 32] [119- F-H; 120-A-GJ 1. 3. The essential ingredients of s. 498-A IPC are: (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 E- any person related t'J har to meet any unlawful demand for any property or valuable security, or on account of ;;. failure by such woman, or any person related to her to · meet the unlawf~I demand and the woman was subjected to such cruelty by the husband of that woman or any relative of the husband of that woman. [Para 34] [120-F- H; 121-A-B] Karnataka v. Balappa 1999 Cri LJ 3064 (Kant); Smt. Shanti & Another v. State of Haryana (1991) 1 SCC 371, relied on ,,. _ 1. 4. Section 3 of the i;>owry Act deals with penalty for giving and taking of dowry. The scope and ambit of s. 3 is different from th. e scope and ambit of s. 304-8 IPC.

Section 4 prohibits the demand for giving property or valuable security whic'h demand, if satisfied, would ~ constitute an offence u/s. 3 read with s. 2 of the Act. Thus, the ambit and scope of ss. 3 and 4 of the Dowry Act is different from the ambit and scope of s. 498-A IPC. The incorrect understanding of law has led to the erroneous judgment consequently leading to grave miscarriage. of justice. [Para 39 to 42] [123-C, E-G] 2. 1. The entire prosecution case hinges on the three 1 dying declarations made by the deceased. A careful analysis of these dying declarations leads of only one conclusion that the respondent after beating the deceased poured kerosene on her and set her on fire; and that she died because of burn injuries sustained by her. The docfor certified that the deceased was in a fit mental c9ndition of give statement. The Tehsildar/ .... Magistrate (PW-13) who recorded the third dying declaration also stated the same in his statement. [Para 22 and 23] [117-A-D] 2. 2.

The basic consistency between the three dying declarations given to PW1, the Investigating Officer (PW8) and the Tehsildar/Magistrate (PW-13) is that the accused brought kerosene, poured the same on the deceased and -"- set her on fire and she died because of the burn injuries. It is the real genesis of all the three dying declarations. It must be appreciated that the deceased gaye these dying declarations in a state when she was in 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. The veracity of the dying declarations is proved beyond any shadow of doubt. [Para 24 and 25] -. i [117-0-F] 2. 3. 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, Similarly, the • statement, Ext. Ka.

16, made to the Investigating Officer, also seems to be correct, consistent and corroborated by the other two statements made before the Tehsildar/ Magistrate (PW13) and PW1. [Para 26 and 27] [118-B-C] 2. 4. In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are 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. [Para 28] [118-D-E] 3. On a careful examination of all the three dying declarations, which are totally consistent and le~d to only r one conclusion that the respondent has poured kerosene on the deceased and lit the fire, the guilt of the accusedrespondent of committing murder of the deceased is fully and clearly made out.

The fact is clearly corroborated from the testimonies of the father of the deceased (PW1 ), the Investigating Officer (PW8) and the Tehsildar/ Magistrate (PW13). The respondent is clearly guilty of offence u/s. 302 IPC. No other view is possible in the light o~ of the three dying declarations. [Para 30 and 44] [119-A; 124-A-B] 4. This Court has always been slow in reversing the order of acquittal, particularly in a case where the other view is possible or plausible. The Court is fully conscious of its bounden obligation . and duty that it is dealing with appeal against acquittal by the High Court. Unfortunately, in the instant case, the High Court, without assigning any cogent reason, set aside a well reasoned judgment of the ,. trial court and acquitted the respondent of the offence punishable u/s 302 IPC. The view taken by High Court is perverse and unsustainable in law.

The impugned judgment of the High Court is set aside and that of the trial court is restored as far as the sentence of the respondent u/s 302 IPC is concerned. [Para 46 and 47] [124-D-F] Case Law Reference : 1999 Cri LJ 3064 (Kant) relied on Para 36 (1991) 1 sec 371 relied on Para 36 "I CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1199 of 2001. From the Judgment & Order dated 2. 3. 2000 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 281 of 1993. Pramod Swarup and Manoj Kumar Dwivedi (for Gunnam - 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 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 .. 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 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. 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, 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 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.