Sarafat Ahmed vs The State Of Bihar on 12 September, 2017

THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.695 of 2015
Arising Out of PS.Case No. -10 Year- 2013 Thana -KUCHILA District- BHABHUA (KAIMUR)

1. Sarafat Ahmed Son of Sohrab Ahmad Resident of Village – Garra, P.S. –
Kuchila, District – Kaimur (Bihar).

…. …. Appellant/s
Versus
1. The State of Bihar …. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Manoj Kumar, Adv.
Mr. Raj Narayan Mishra, Adv.
For the Respondent/s : Mrs. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 12-09-2017

Appellant, Sarafat Ahmad has been found guilty for

an offence punishable under Section 304B/34 of the IPC and

sentenced to undergo RI for 10 years as well as to pay fine of Rs.

25,000/- in default thereof, to undergo SI for 1 year additionally, vide

judgment of conviction dated 01.09.2015 and order of sentence dated

10.09.2015 passed by learned Additional Sessions Judge-1st, Bhabhua,

Kaimur in Sessions Trial No. 05/2014/03/2014.

2. Israr Mohammad (PW 7) filed a written report on

17.07.2013 alleging inter alia that his daughter Shahnaz Bibi was

married with Md. Sarafat Ahmad son of Sohrab Ahmad of village-

Garra on 15.05.2012 About a month ago, he had gifted one TV even

then his daughter was subjected to torture and cruelty on account of

non fulfillment of demand of dowry, a motorcycle. Yesterday, i.e. on

16.07.2013 at about 7:00 PM, she had dialed over his mobile and
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disclosed that on account of non providing of motorcycle, she was

being assaulted. He consoled her. Just after about an hour, at about

8:00 PM , he was informed that she was burnt. Just after receiving the

information, he along with others proceeded and reached at Village-

Garra, Sasural of his daughter at about 2:00 AM and found her in

burnt condition. She was being treated by the local quack. His

daughter disclosed that Sarafat Ahmad, Asma Bibi, Rukhsana Bibi

and Rizwana Khatoon conjointly burnt her. About half an hour

thereafter, she succumbed.

3. On the basis of the aforesaid written report,

Kuchila PS Case No. 10/2013 was registered followed with an

investigation. Because of the fact that Sarafat was apprehended during

course of investigation, on account thereof, charge-sheet was

submitted against him keeping the investigation pending against

remaining accused on the basis of which, cognizance of an offence

was taken and then, thereafter, the trial commenced before the court

of sessions on commitment which ultimately met with result adverse

to the appellant, subject matter of this appeal.

4. The defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313 of

the CrPC is of complete denial. It has also been pleaded that the

deceased caught fire accidentally during course of cooking. Seeing the
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same the appellant and his family members got the fire extinguished,

provided available medical facility, during midst thereof, members of

the prosecution party came and had filed the instant case without any

basis, foundation. However, neither any DW nor any documentary

evidence has been adduced on behalf of accused.

5. In order to substantiate its case, prosecution had

examined altogether 8 PWs out of whom PW-1, Aslam Ansari, PW-2,

Sirajuddin Ansari, PW-3, Ishteyak Ansari, PW-4, Vahida Begam,

PW-5, Intezar Ali, PW-6, Dr. Kameshwar Nath Tiwari, PW-7, Israj

Mohammad, informant and PW-8, Sandeep Kumar, Investigating

Officer. Side by side, had also exhibited Ext-1 series, signature of

witnesses over inquest report, Ext-2 series, signature of doctor over

postmortem report, Ext-3, postmortem report, Ext-4, written report,

Ext-5, inquest report.

6. Learned counsel for the appellant while assailing the judgment

of conviction and sentence has submitted that the learned lower court

while recording the judgment of conviction and sentence against the

appellant had acted under pre-occupied mind without appreciating the

evidence in legal way nor appreciated the bona fide conduct of the

appellant which, if taken in right perspective, would not have

warranted conviction. In order to substantiate the same, it has been

submitted that from the written report itself, it is evident deceased was
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being treated while members of the prosecution party arrived at his

place. Furthermore, it is also evident therefrom that prosecution party

was informed regarding the misfortune by the appellant himself. Had

there been an offence committed at the hands of the appellant and his

family members, he would not have allowed treatment of the deceased

nor would have informed the prosecution party. That part is sufficient

to exonerate the appellant from culpability whereunder, he has been

convicted and sentenced. Furthermore, it has also been submitted that

none of the prosecution witness happens to be an eyewitness to

occurrence nor they have deposed that during intervening period,

there was demand of dowry and for fulfillment of the same, the

deceased was regularly treated with torture, cruelty. For the first time,

it has been introduced by way stating that on 16.07.2013 the deceased

had dialed and informed PW-7 that she was being manhandled for

procurement of a motorcycle in lieu of demand of dowry, however,

during course of trial the prosecution had not produced call details in

order to affirm the discloser that on 16.07.2013, the deceased had

dialed to PW-7. In absence thereof, the source of information which

could form one of the major ingredients for attracting Section 304B

IPC is not at all found duly substantiated.

7. Apart from this, it has also been submitted that

prosecution had, with mala fide intention, introduced the theme of
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oral dying declaration which, in the facts and circumstances of the

case, did not justify, more particularly, in the background of severity

of burn sustained by the deceased. The real fact is that the deceased

had died much prior to arrival of the prosecution party. Even if

considering, it did not speak with regard to aforesaid activity on

account of non fulfillment of dowry and so, again on account of

deficiency of evidence in order to substantiate Section 304 B of the

IPC, the offence could not be said to be duly proved. In any view of

the matter, the paucity of the evidence did not justify conviction and

sentence of the appellant.

8. It has also been submitted that doctor, who

conducted autopsy, has not been examined whereupon, neither the

evidence of PW-6 could be held admissible in the eye of law nor the

postmortem report could be admitted in the evidence. The learned

lower court while relying upon the aforesaid document by way of

admitting the postmortem report and in likewise manner the evidence

of PW-6 gone against the settled principle of law. Apart from this, it

has also been submitted that the evidence of PW-8, the Investigating

Officer and the objective finding relating to the place of occurrence,

completely ruins the prosecution version and so, the cumulative effect

nullify the finding recorded by the learned lower court.

9. While refuting the submissions made on behalf of
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the appellant, it has been submitted by the learned APP that the

evidences having been adduced on behalf of prosecution happens to

be consistent as well as satisfy the ingredients of Section 304 B of the

IPC which the learned lower court perceived after minutely observing,

analyzing the evidences and that being so, the judgment impugned did

not attract interference. In likewise manner, it has also been submitted

that the evidence of PW-6 is admissible in the eye of law as he was

one of the members of the Medical Board who conducted

postmortem. So, it was mere a paraphernalia whereunder Dr. Mahtab

Khan (not examined) had scribed the postmortem report and so, the

learned lower court rightly admitted the evidence and was fully

justified in relying thereupon. In likewise manner, it has also been

submitted that PW-8, Investigating Officer had fully corroborated by

way of his objective finding relating to the place of occurrence.

10. In usual phenomena the witnesses being co-

villagers of the appellant have turned hostile and that happens to be

the status of the PWs-1, 2 and 3. Moreover, they consistently deposed

with regard to solemnization of marriage in between deceased and the

appellant, held 1 year and 3 months prior to the alleged date of

occurrence. It is also apparent from their evidence that on hue and cry,

they reached at the place of occurrence, they found the deceased in

burnt condition and as per PW-2, her family members were searching
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for doctor while as per evidence of PW-3, doctor was made available.

During cross-examination, they have stated that there was no demand

of dowry, more particularly, motorcycle, no torture, rather the

deceased caught fire during course of cooking, accidentally.

11. PW-4 is the mother of the deceased. She had

deposed that her daughter was married about a year ago. On the

following day, her Rukhsati effected. About 9 months ago, she died.

Her daughter had dialed on the same day at about 6:00 PM and

disclosed that her husband, Sarafat Ahmad, Asma Bibi, Rukhsana

Bibi and her younger sister-in-law, Rizwana Khatoon were insisting

upon procurement of a motorcycle as well as TV. She had give a TV

but due to financial constraint motorcycle was not given. Deyadin of

her daughter, namely, Rukhsana had threatened that in case

motorcycle is not provided by the evening time, she will be given a

lesson. She had talked with her Deyadin and requested her not to

torture her daughter as she is coming to meet the demand of the

motorcycle by arranging money. At about 8:00 PM, Chaukidar,

Babban had informed that her daughter has been burnt whereupon, all

the family members reached at the house at 2:00 AM. She found her

daughter lying in the courtyard. She was alive. She talked with her.

During course of which, her daughter disclosed that all the accused

persons poured acid in her mouth. Whole body was burnt of acid.
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Soon thereafter, her daughter died. She identified the accused. During

cross-examination, she had stated at para-2 that on the following day

of Nikah, her daughter had gone to her Sasural. When she came at her

place after an interval of 7 months, she met with the deceased. They

used to visit Sasural of her daughter during intervening period. She

stayed at her house for three months and then Bidai effected for which

her son-in-law, Sarafat had come. She had further stated that during

course of her stay at her place, her Sasuralwala including husband

used to visit and were properly cared. Nikah was also performed in a

harmonious atmosphere. In para-3, she had stated that her daughter

had gone to her Sasural in pleasant manner. At the time of marriage,

her son-in-law was working at Hyderabad. In para-4, she had stated

that she had provided one mobile to her daughter and used to talk

every fortnight though, the accused persons have forbidden the same.

Till stay of her daughter at her Sasural, she had not visited. She had

further stated that her daughter visited only once to her place after

Nikah to her death. Her daughter was pregnant. When she reached,

she found her daughter in a semi conscious condition on account of

burnt. So many persons have accompanied her. At para-5, she had

stated that when they reached at Sasural of her daughter, none of the

family members save and except Asma Bibi was present. They began

to take step for treatment during midst thereof, she died. She had
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informed local Mukhiya who said that they have committed wrong

but no case should be registered and for that, she will be duly

compensated monetarily. They remained there while some of the

members had gone to PS, informed the police. Police came and

recorded her statement on the basis of which instant case has been

registered. In her presence, the Investigating Officer had not taken

statement of any other person. Her daughter was naked. Whole body

was burnt. Her both teeth were broken. Lips were protruded. In para-

6, she had stated that she had not, at an earlier occasion, complained

regarding torture having been meted out to the deceased nor any

Panchayati was convened. She received information from Choukidar.

But she is not remembering his phone number. She denied the

suggestion that there was no demand of dowry nor there was torture at

the end of accused. Unfortunately, there was accidental fire as a result

of which she died. In para-8, she had stated that her husband has

compromised the case.

12. PW-5 is Md. Intezar Ali, cousin brother of the

deceased. He had deposed that his cousin sister, the deceased was

married with Sarafat Ahmad about one year 9 months ago. About 1

year ago, she died. They had received telephone from his sister about

2 hours before the occurrence and during course of conversation, she

disclosed that Sarafat Ahmad, Asma Bibi, Rukhsana Bibi and
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Rizwana Khatoon are assaulting her for procurement of a motorcycle

as well as TV. His uncle had provided a small TV but the accused

persons were insisting upon big TV as well as motorcycle. Her Gotni,

Rukhsana had threatened of dire consequences in case of non

fulfillment of demand of dowry. At about 9.45 PM, they received

another call by which they were informed regarding the occurrence

whereupon, he along with his aunt, uncle and others proceeded to the

Sasural of deceased and reached. They found the deceased alive. She

was in the courtyard lying over a cot. His aunt talked with the

deceased who disclosed that all the accused persons had assaulted and

then put her on fire. They were to remove the deceased for medical

treatment during midst thereof, she died. Police had come and

prepared inquest report in his presence over which he had put his

signature. During cross-examination, he had stated that he had not

visited Sasural of the deceased during midst of her stay. However, her

uncle and other family members as well as Sasuralwala of the

deceased were on visiting terms. He had talked with Shanaz, when she

came to her Maika. In para-5, he had stated that he is not

remembering as to how many times the deceased had come to her

Naiher. At one occasion, her husband, Sarafat took her away while at

other occasion, father of Sarafat took her away. During course of their

presence at the place, they offered good hospitality. He had further
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stated that the deceased had not communicated with regard to demand

by letter but had informed her mother orally. In para-6, he had stated

that Gotni of deceased had talked on the date of occurrence, before the

occurrence. They had gone there. When they reached at the Sasural of

deceased they saw her whole body was burnt. They have not seen the

sign of assault. Police came in the morning till then, Shahnaz was in

the Angan. They were also in the Angan. None of the Sasuralwala of

deceased was present. When they reached, even at that very time,

neither her husband nor her mother-in-law was present. He had shown

ignorance with regard to cause of death in the background of

prevailing illicit relationship of her husband with Rukhsana. He was

not at all intimated by his sister, uncle, aunt relating to the same. Then

had stated that when they reached they found the villagers as well as

Mukhiyaji. In para-7, he had stated that Shahnaz was pregnant. Hair

was burnt. Her face was burnt. Whole body was burnt. Sari as well as

lower part of the body was completely burnt. Shanaz had died before

arrival of the police. Shahnaz died half an hour after their arrival.

They have not inquired from Shahnaz rather her mother inquired

whereupon, she disclosed as to how she was set ablazed. He had

further stated that mother of Shahnaz had disclosed that she was burnt

in the same room whereunin she was residing. Accused persons also

shown the room wherein she was burnt. In para-8, he had further
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stated that mother of Shahnaz had not disclosed that Shahnaz was

hanged. Mother of Shahnaz had not disclosed as to how Shahnaz was

set ablazed. When police came, they took the police to the room also.

There was no blood. However, the room was washed. Police had

recovered one rod wherein some clothes were wrapped. In para-10,

there happens to be some sort of contradiction. He had denied the

suggestion that none had put the deceased on fire rather she caught

fire accidentally.

13. PW-7 is the informant who had deposed that her

daughter (deceased) Shahnaz was married with Sarafat Ahmad. Her

marriage was solemnized about two and half years ago and she died at

her Sasural about one and half years ago while she was staying at her

Sasural. Her murder was committed by Sarafat, mother of Sarafat,

Asma Bibi, Rizwana, Imrana and Rukhsana. On the date of death, he

received a call that on account of non fulfilment of dowry items,

namely, motorcycle as well as TV, she will be murdered. At the time

of marriage, he had given a small TV. He consoled his daughter. At

about 10.00 AM, again he received a call that his daughter died,

whereupon, he, his wife along with others had gone to the Sasural of

his daughter where he saw his daugher in burnt condition. She was

breathing. On query made by his wife, she disclosed that accused

persons set her ablazed for motorcycle. After about 1 and ½ hours,
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they had gone to PS and lodged a case. On his dictation, Ejaz had

scribed the same which he read and then thereafter put his signature

(exhibited). Also exhibited his signature over inquest report.

Identified the accused. During cross-examination at para-4, he had

stated that both the families were known to each other since before the

marriage of his daughter. At the time of marriage, Sarafat was

engaged at Hyderbad in a Rolling Mill. There was no hurdle in

marriage. After marriage, his daughter had gone to her Sasural. After

staying 5-6 months, she came to his place. During her stay at her

Sasural, he used to visit her place. His son also used to go there. On

the day of Bidai, Sarafat was present. In para-4, he had stated that his

daughter came to his place only once. After staying for two months,

her Bhainsur took her away. His daughter was not inclined to go

there. After consoling her, Bidai was effected. His daughter had

disclosed at that very time that she will not be left alive. This happens

to be her last Bidai. His daughter complained agains her Sasuralwala,

for that, he had not complained anywhere. In para-6, he stated that

after receiving information when he reached at the place of his

daughter, he had not found any doctor. He had denied in para-7 with

regard to averment having made in the written report regarding

presence of the local doctor. In para-8, he had stated that when he

reached there, he found his daughter to be alive. Her head was not
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burnt but the lower part of the body was completely burnt. Clothe was

put over her body. She was burnt. In para-9, he had stated that his

daughter was illiterate. No letter was at her end with regard to demand

of dowry as well as torture but, she used to complain over mobile. He

had provided a mobile phone. In para-10, he has stated that his son-in-

law had visited his place at an earlier occasion. After staying for a

day, he returned back. He had also stated that on pressure he filed a

compromise petition. In para-12, he had stated that his daughter died

soon after the occurrence. When police came, he was present at the

place of occurrence. Police had gone inside the house. Police had

gone in the room. His daughter was put on fire in a hut which was

seen by the police. He had also disclosed before Dy. S.P. that his

daughter was murdered. He had also made written complaint. He had

denied suggestion that the accused persons never demanded dowry.

No occurrence as alleged, had taken place. The deceased during

course of cooking caught fire accidentally which was extinguished by

the accused persons and even having provided treatment, she died.

14. PW-8 is the I.O. He had deposed that on

17.07.2013, he was O/C of Kuchila PS. On the written report of Israj

Mohammad, he registered Kuchila PS Case No. 10/2013 under

Section 304B/34 of the IPC against the accused persons, then took up
15

investigation. He had visited the place of occurrence. During course of

inspection of the place of occurrence, he had found one empty gallon

as well as one small lamp which was seized by him in presence of

Israj as well as Gauri Shankar Chaudhary (Exhibited). He also

prepared inquest report in carbon process in presence of witnesses

(exhibited). Dead body Chalan was issued and sent the dead body for

postmortem along with Chaukidar. Then he had inspected the place of

occurrence which happens to be the house of accused persons. Then

had given topography of the house. The house happens to be of mud

as well as having tiled roof. At the southern flank there happens to be

open courtyard as well as cow-shed. Western side of courtyard is open

having thatched roof, hut. One room having eastern front and two

rooms having southern fronts with pucca roof. One room having

eastern front is also pucca. One handpipe is installed in the middle of

the Angan. A room having western front which happens to be

adjacent to the passage as well as tiled roof, its floor has been found

cleaned. Smell of K-oil was coming therefrom. He had not found sign

of flame over the wall. Northern wall happens to be that of brick

wherein rack is present. Then had detailed the other constructions

having found there. Then has disclosed the boundary of the house.

North-Kiyamuddin, South-Kiyamuddin, East-passage and then house

of Jannat Ansari and West-Imam Ansari. He took further statement of
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informant and then, thereafter, statement of Vahida Begam, Aslam,

Ishteyak, Intezar, and Serajuddin. Then there happens to be

contradiction relating to hostile witnesses, Aslam, Serajuddin,

Ishteyak and Intezar Ansari. After completing the investigation, he

had submitted the charge-sheet against the appellant. During cross-

examination, at para-2, he had deposed that when he reached at the

place of occurrence, he found the deceased dead. Her dead body was

in the court yard. Accused persons were not present. Villagers were

there. He took their statements. He had gone inside the room

whereunder the deceased was residing. The place of occurrence

happens to be that room. He had not mentioned the length and breadth

of the room. He had found floor of the room sleeked and smell of K-

oil was coming therefrom. He had not mentioned the name of the

person who had shown the place of occurrence. He had not found

burnt article inside that room. In para-3, he had stated that when he

reached at the place of occurrence, deceased was lying over cot in the

courtyard. She was wrapped in a Sari of red colour. He had not seized

that Sari. He had seized the empty gallon as well as one lamp. He had

not seized the cot. In para-4, he had stated that he had found the whole

body of the deceased in burnt condition. Neither the informant nor his

family members had handed over mobile claiming that the same was

along with the deceased. They had not disclosed the mobile number of
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deceased. He had reached at the place of occurrence at 6.50 AM. He

had not investigated on the point of mobile being possessed by the

deceased. The informant had disclosed in the written report regarding

treatment being provided to the deceased by a doctor. Informant

during course of his statement has divulged regarding demand of

dowry since after marriage.

15. PW-6 is Dr. Kameshwar Nath Tiwari who had

deposed that Medical Board was constituted for conduction of

postmortem. In his supervision, postmortem was done by Dr. Mahtab

Khan and in his presence finding was recorded by him over which he

had also put his signature. He along with Dr. Mahtab Khan found the

following ante-mortem injuries over the dead body of the deceased:-

“Dead body claw in position, mouth closed, teeth

visible, tongue in right position, extensive burn injury all over the

body, smell of K-oil coming from the dead body. On dissection, skull

bone intact, brain matter pale, neck NAD, Thoroacic intact, both

pleura and lungs intact and congested, pericardium and heart intact,

right chamber contained dark blood. Left chamber empty. Stomach

contained semi digested food material. Intestine contained gas, liquid

and fasces. Liver, spleen and both kidney are intact and slightly

congested. Uterus non gravy. Urinary bladder contained 30 ML of

urine.

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Opinion:-1. Above mentioned burn injury is ante-

mortem in nature and caused by dry heat by means of K-oil.

2. Death is due to severe shock and dehydration

resulting to C.R. failure due to above mentioned extension burn

injury.

3. Time elapsed since death in approx within 24

hours.

16. Then had exhibited the same stating that this

postmortem report was scribed in his presence by Dr. Mahtab Khan

which bears his signature as well as signature of Dr. Mahtab Khan.

During cross-examination he has stated that he was observer and in

his presence PM was conducted. However, he had also stated that he

personally does not know what has been written in the PM report.

17. After going through the evidence adduced on

behalf of the prosecution, as discussed above, it is evidently clear that

the deceased died at her Sasural within one year of marriage that

means to say within seven years of marriage. Furthermore, she died of

burn injuries, smell of K-oil was coming from the dead body. Smell of

K-oil was also perceived during inspection of P.O. by the

Investigating Officer, who had also seized gallon as well as lamp. It is

also evident that none of the family members were present when the

prosecution party as well as police arrived at the place of occurrence.
19

Furthermore, the status of the appellant being husband of the deceased

is also not denied. In the background of the aforesaid admitted fact,

now the further task is to search out whether there was demand of

dowry at the end of Sasuralwala as well as soon before her death, she

was tortured on that very score. From the evidence on record, it is

apparent that all the witnesses namely, PWs, 4, 5 and 7 had reiterated

the same and on that very score there happens to be no contradiction,

embellishment, development as is evident from the evidence of

Investigating Officer PW-8, nor there happens to be proper cross-

examination in order to infidelise.

18. Learned counsel for the appellant drew attention

towards the initial version having at the end of PW-7, informant,

father of deceased that there happens to be discloser that at the time of

their arrival at the place of deceased, she was in burnt condition but

was being treated by a local doctor. However, this part has been

completely gone by the prosecution during course of evidence, though

attention has been drawn to the informant as well as Investigating

Officer on that very score. On the other hand, the learned APP

submitted that it might be possible that some of the villagers, whose

presence has been, might have cared and, perhaps shown as local

doctor by the prosecution, otherwise during course of inspection of

P.O. supportive evidences might have been collected or those would
20

have been proper activity at the end of defence whereunder that

doctor must have been examined by the Investigating Officer and in

likewise manner, during cross-examination his name would have been

disclosed, at least would have been examined in defence, so the

assertion is not going to have any kind of adverse impact upon the

prosecution case.

19. From the trend of the cross-examination having

on behalf of appellant, it is apparent that neither PWs-4, 5, 7 were

cross-examined on the point of demand of motorcycle as well as big

TV as they were not satisfied with small TV which was given at an

earlier occasion nor they have challenged the version of the

prosecution that when they reached, they found the deceased

breathing, they made query over which, the deceased had disclosed

the event as to how she was put under fire and by whom. The defence

also kept silence over mobile phone, at least, by way of suggestion

that deceased was not at all possessing any mobile. Though, it

happens to be oral dying declaration but, neither law prohibits the

same nor there happens to be any kind of impediment in accepting the

same once it is found that same happens to be free from any kind of

embellishment, tutoring, influence as well as in a fit mental condition.

Moreover, presence of prosecution party had already been admitted by

PWs-1, 2, and 3, co-villagers of the appellant who also affirmed the
21

incidence of deceased being burnt.

20. Taking no step to inform the police officials at an

earlier occasion regarding torture, cruelty having exhorted upon the

deceased relating to demand of dowry should not be considered as an

abnormal activity because of the fact that marriage was solemnized

just a few months ago and so far Indian culture is concerned, people

wait and watch to maintain relationship which could mature by efflux

of time.

21. In Suresh Kumar v. State of Haryan reported in

2-14 Cr.L.J. 551, it has been observed as follows:-

25. Learned counsel for Suresh Kumar made
two submissions. It was firstly contended on the merits of
the case that there was nothing to suggest that his client was
guilty of an offence punishable under Section 304-B of the
IPC. Secondly it was contended that the High Court ought
not to have lightly interfered against an order of acquittal.

26. The actual words used in Section 304-B of
the IPC are of importance. This section 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.

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
22

years but which may extend to imprisonment for life.

27. In a large number of decisions, this Court
has indicated the ingredients of Section 304-B of the IPC,
which are now broadly accepted. In Pawan Kumar v. State
of Haryana [JT 1998 (1) SC 565 : 1998 (3) SCC 309] the
ingredients were identified as:

(a) When the death of a woman is caused by any burns or
bodily injury, or

(b) occurs otherwise than under normal circumstances

(c) and the aforesaid two facts spring within 7 years of girls
marriage

(d) and soon before her death, she was subjected to cruelty
or harassment by her husband or his relative,

(e) this is in connection with the demand of dowry.

28. The ingredients of Section 304-B of the
IPC were rephrased in Kans Raj v. State of Punjab [JT 2000
(5) SC 223 : 2000 (5) SCC 207] in the following words :

(a) the death of a woman was caused by burns or bodily
injury or had occurred otherwise than under normal
circumstances;

(b) such death should have occurred within 7 years of her
marriage;

(c) the deceased was subjected to cruelty or harassment by
her husband or by any relative of her marriage;

(d) such cruelty or harassment should be for or in
connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have
been subjected soon before her death.

29. The expression otherwise than under
normal circumstances was explained to mean death not in
the usual course but apparently under suspicious
circumstances, if not caused by burns or bodily injury.

30. A somewhat recent exposition is to be
found in Hira Lal v. State (Govt. of NCT), Delhi [JT 2003
(6) SC 195 : 2003 (8) SCC 80] wherein this Court held that
to attract the application of Section 304-B of the 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.

23

(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.

31. More recently the ingredients of Section
304-B of the IPC have been abbreviated in Bakshish Ram v.
State of Punjab [JT 2013 (9) SC 129: 2013 (4) SCC 131] in
the following words :

(a) that a married woman had died otherwise than under
normal circumstances;

(b) such death was within seven years of her marriage; and

(c) the prosecution has established that there was cruelty
and harassment in connection with demand for dowry soon
before her death.

32. This formula, though framed in different
words by this Court, from time to time, conveys the same
meaning of the essential ingredients of an offence
punishable under Section 304-B of the IPC.

33. Importantly, Section 304-B of the IPC does
not categorize death as homicidal or suicidal or accidental.
This is because death caused by burns can, in a given case,
be homicidal or suicidal or accidental. Similarly, death
caused by bodily injury can, in a given case, be homicidal
or suicidal or accidental. Finally, any death occurring
otherwise than under normal circumstances can, in a given
case, be homicidal or suicidal or accidental. Therefore, if all
the other ingredients of Section 304-B of the IPC are
fulfilled, any death (whether homicidal or suicidal or
accidental) and whether caused by burns or by bodily injury
or occurring otherwise than under normal circumstances
shall, as per the legislative mandate, be called a dowry
death and the womans husband or his relative shall be
deemed to have caused her death. The Section clearly
specifies what constitutes the offence of a dowry death and
also identifies the single offender or multiple offenders who
has or have caused the dowry death.

24

34. The evidentiary value of the identification
is stated in Section 113-B of the Evidence Act, 1872 (the
Act). The key words in this Section are shall presume
leaving no option with a Court but to presume an accused
brought before it of causing a dowry death guilty of the
offence. However, the redeeming factor of this provision is
that the presumption is rebuttable. Section 113-B of the Act
enables an accused to prove his innocence and places a
reverse onus of proof on him or her.

35. Section 113-B of the Act 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 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 purposes of this section dowry death
shall have the same meaning as in Section 304-B of the
Indian Penal Code (45 of 1860).

36. That the presumption under Section 113-B
of the Act is mandatory may be contrasted with Section
113-B of the Act which was introduced contemporaneously.
Section 113-A of the Act, dealing with abetment to suicide,
uses the expression may presume. This being the position, a
two-stage process is required to be followed in respect of an
offence punishable under Section 304-B of the IPC: it is
necessary to first ascertain whether the ingredients of the
Section have been made out against the accused; if the
ingredients are made out, then the accused is deemed to
have caused the death of the woman but is entitled to rebut
the statutory presumption of having caused a dowry death.

Some key decisions

37. In Pawan Kumar this Court adverted to the
reason for amending the IPC by Act 43 of 1986 to introduce
Section 304-B therein and the difficulty in curbing the
menace of dowry related deaths. This Court said in
paragraph 11 of the Report:

It is true, as argued by learned counsel for the appellants,
that in criminal jurisprudence benefit of doubt is extendable
to the accused. But that benefit of doubt would arise in the
25

context of the application of penal law, and in the facts and
circumstances of a case.

The concept of benefit of doubt has an important role to
play but within the confines of the stringency of laws. Since
the cause of death of a married woman was to occur not in
normal circumstances but as a dowry death, for which the
evidence was not so easily available, as it is mostly
confined within the four walls of a house, namely the
husbands house, where all likely accused reside. Hence the
aforesaid amendments brought in the concept of deemed
dowry death by the husband or the relatives, as the case
may be. This deeming clause has a role to play and cannot
be taken lightly and ignored to shield an accused, otherwise
the very purpose of the amendment will be lost. Of course,
the prosecution has to prove the ultimate essential
ingredients beyond all reasonable doubt after raising the
initial presumption of deemed dowry death.

38. This Court then observed that: The
objective is that men committing such crimes should not
escape punishment. Hence stringent provisions were
brought in by shifting the burden onto the accused by
bringing in the deemed clause.

39. On the question of burden of proof, this
Court referred to Section 113-B of the Act and held in
paragraph 19 of the Report:

We find that according to Section 8-A of the aforesaid 1961
Act [Dowry Prohibition Act, 1961] which came into force
w.e.f. 2-10-1985 for taking or abetting any dowry, the
burden to explain is placed on such person against whom
the allegation of committing an offence is made. Similarly,
under Explanation to Section 113-B of the Indian Evidence
Act, which was also brought in by the aforesaid Act 43 of
1986, there is presumption that such death is on account of
dowry death. Thus the burden, if at all, was on the accused
to prove otherwise.

40. In Shamnsaheb M. Multtani v. State of
Karnataka [JT 2001 (2) SC 92 : 2001 (2) SCC 577] a Bench
of three judges of this Court elucidated the requirements of
Section 304-B of the IPC read with Section 113-B of the
Act and contrasted it with Section 113-A of the Act.
Paragraphs 27 to 30 are extremely important in this context
26

and are reproduced below:

27. The postulates needed to establish the said offence
[Section 304B of the IPC] are: (1) death of a wife should
have occurred otherwise than under normal circumstances
within seven years of her marriage; (2) soon before her
death she should have been subjected to cruelty or
harassment by the accused in connection with any demand
for dowry. Now reading Section 113-B of the Evidence Act,
as a part of the said offence, the position in this: If the
prosecution succeeds in showing that soon before her death
she was subjected by him to cruelty or harassment for or in
connection with any demand for dowry and that her death
had occurred (within seven years of her marriage) otherwise
than under normal circumstances the court shall presume
that such person had caused the dowry death.

28. Under Section 4 of the Evidence Act whenever it is
directed by this Act that the court shall presume a fact, it
shall regard such fact as proved, unless and until it is
disproved. So the court has no option but to presume that
the accused had caused dowry death unless the accused
disproves it. It is a statutory compulsion on the court.
However it is open to the accused to adduce such evidence
for disproving the said compulsory presumption, as the
burden is unmistakably on him to do so. He can discharge
such burden either by eliciting answers through cross-
examination of the witnesses of the prosecution or by
adducing evidence on the defence side or by both.

29. At this stage, we may note the difference in the legal
position between the said offence and Section 306 IPC
which was merely an offence of abetment of suicide earlier.
The section remained in the statute-book without any
practical use till 1983. But by the introduction of Section
113-A in the Evidence Act the said offence under Section
306 IPC has acquired wider dimensions and has become a
serious marriage-related offence. Section 113-A of the
Evidence Act says that under certain conditions, almost
similar to the conditions for dowry death the court may
presume having regard to the circumstances of the case, that
such suicide has been abetted by her husband etc. When the
law says that the court may presume the fact, it is
discretionary on the part of the court either to regard such
fact as proved or not to do so, which depends upon all the
other circumstances of the case. As there is no compulsion
on the court to act on the presumption the accused can
27

persuade the court against drawing a presumption adverse
to him.

30. But the peculiar situation in respect of an offence under
Section 304-B IPC, as discernible from the distinction
pointed out above in respect of the offence under Section
306 IPC is this: Under the former the court has a statutory
compulsion, merely on the establishment of two factual
positions enumerated above, to presume that the accused
has committed dowry death. If any accused wants to escape
from the said catch the burden is on him to disprove it. If he
fails to rebut the presumption the court is bound to act on it.

41. In Yashoda v. State of Madhya Pradesh [JT
2004 (2) SC 318 : (2004) 3 SCC 98] this Court held that
once the ingredients of Section 304-B of the IPC are
fulfilled, the onus shifts to the defence to produce evidence
to rebut the statutory presumption and to show that the
death was in the normal course with which the accused
were not connected. This is what was said:

Once the prosecution proves the facts which give rise to the
presumption under Section 304-B IPC, the onus shifts to the
defence and it is for the defence to produce evidence to
rebut that presumption. The defence may adduce evidence
in support of its defence or may make suggestions to the
prosecution witnesses to elicit facts which may support their
defence. The evidence produced by the defence may
disclose that the death was not caused by them, or that the
death took place in the normal course on account of any
ailment or disease suffered by the deceased or that the death
took place in a manner with which they were not at all
connected. In the instant case if the defence wanted to prove
that the deceased had suffered from diarrhoea and vomiting
and that resulted in her death, it was for the defence to
adduce evidence and rebut the presumption that arose under
Section 304-B IPC. The defence could have examined the
doctor concerned or even summoned the record from the
hospital to prove that in fact the deceased has suffered such
ailment and had also been treated for such ailment.

42. In Nallam Veera Stayanandam v. Public
Prosecutor, High Court of A.P. [JT 2004 (3) SC 18 : 2004
(10) SCC 769] this Court specifically adverted to an
accidental death and the applicability of Section 304-B of
the IPC as well as the presumption under Section 113-B of
28

the Act and held:

It is true from the evidence led by the prosecution it has
been able to establish that the appellants were demanding
dowry which was a harassment to the deceased. It is also
true that the death of the deceased occurred within 7 years
of the marriage, therefore, a presumption under Section
113-B of the Evidence Act is available to the prosecution,
therefore, it is for the defence in this case to discharge the
onus and establish that the death of the deceased in all
probability did not occur because of suicide but was an
accidental death.

43. Similarly, in Sharad v. State of
Maharashtra [JT 2012 (2) SC 26 : (2012) 5 SCC 548] this
Court was again concerned with an accidental death. This
Court referred to Section 113-B of the Act to conclude that
the burden of proving that it was an accidental death was
upon the accused. It was held:

The counsel for the appellant next tried to advance the plea
that it was in fact a case of accidental burn and Savita
caught fire by falling down on the chulha. It is seen above
that Savita died from burn injuries within two-and-a-half
years of her marriage with the appellant. It is also
established that soon before her death she was subjected to
cruelty or harassment by the appellant in connection with
the demand for the unpaid amount of the dowry. All the
three facts and circumstances put together clearly attract the
provisions of Section 113-B of the Evidence Act and the
burden lay upon the appellant to prove the defence plea that
it was a case of accidental burning. There is, however, no
evidence on record even to remotely support the plea of
accidental burn.

44. Finally, in Pathan Hussain Basha v. State
of A.P., [JT 2012 (7) SC 432 : 2012 (8) SCC 594] this
Court reiterated that the burden of proving the innocence of
the accused or rebutting the statutory presumption is on him
and not on the prosecution which has only to prove that the
ingredients of an offence of dowry death are made out. It
was held:

Applying these principles to the facts of the present case, it
is clear that the ingredients of Section 304-B read with
Section 498-A IPC are completely satisfied in the present
case. By a deeming fiction in law, the onus shifts on to the
29

accused to prove as to how the deceased died. It is for the
accused to show that the death of the deceased did not result
from any cruelty or demand of dowry by the accused
persons. The accused did not care to explain as to how the
death of his wife occurred. Denial cannot be treated to be
the discharge of onus. Onus has to be discharged by leading
proper and cogent evidence. It was expected of the accused
to explain as to how and why his wife died, as well as his
conduct immediately prior and subsequent to the death of
the deceased. Maintaining silence cannot be equated to
discharge of onus by the accused. In the present case, the
prosecution by reliable and cogent evidence has established
the guilt of the accused. There being no rebuttal thereto,
there is no occasion to interfere in the judgments of the
courts under appeal.

45. A discordant note on the issue of burden of
proof in an accidental death was struck in Hira Lal wherein
this Court conjointly read Section 304-B of the IPC and
Section 113-B of the Act. It was held that the onus is on the
prosecution to rule out the possibility of a natural or
accidental death. It was held in paragraph 9 of the Report as
follows:

A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
within the purview of death occurring otherwise than in
normal circumstances.

46. These very words were repeated, almost in
identical terms, in Kunhiabdulla v. State of Kerala [JT 2004
(3) SC 206 : 2004 (4) SCC 13], State of Andhra Pradesh v.
Raj Gopal Asawa [JT 2004 (3) SC 560 : 2004 (4) SCC 470]
and in Kamesh Panjiyar v. State of Bihar [JT 2005 (2) SC
218 : 2005 (2) SCC 388] that it is for the prosecution to
show that the dowry death was not natural or that it was
accidental.

47. This view has recently been followed in
Bakshish Ram wherein it was held that:
[A] perusal of Section 113-B of the Evidence Act and
Section 304-B IPC shows that there must be material to
30

show that soon before her death the victim was subjected to
cruelty or harassment. In other words, the prosecution has
to rule out the possibility of a natural or accidental death so
as to bring it within the purview of death occurring
otherwise than in normal circumstances. The prosecution is
obliged to show that soon before the occurrence, there was
cruelty or harassment and only in that case presumption
operates.

48. We are, of course, bound by the decision of
a larger Bench of this Court in Multtani. Following that
decision, we must hold that the initial burden of proving the
death of a woman within seven years of her marriage in
circumstances that are not normal is on the prosecution;
such death should be in connection with or for a demand of
dowry which is accompanied by such cruelty or harassment
that eventually leads to the womans death in circumstances
that are not normal. After the initial burden of a deemed
dowry death is discharged by the prosecution, a reverse
onus is put on the accused to prove his innocence by
showing, inter alia, that the death was accidental.

22. In Basisth Narayan Yadav v. Kailash Rai

reported in 2015 Cr.L.J. 3792, it has been held as follows:-

9. We have analysed the evidence produced in
this case. We find that although the case of the prosecution
suffers from many infirmities and there has been
unexplained reluctance in bringing the relevant witnesses
on record, apart from parents of the deceased, the doctor
and the Investigating Officer, even Triloki Sharma and the
Chowkidar who saw the accused persons disposing of the
body of the deceased, have also not been examined. Yet we
may not lose sight of the fact that this is the case of dowry
death. Even with the limited evidence brought on record
certain things have been established. It is undisputed that
the deceased had died during the night of 30.07.1989 due to
burn injuries inside her matrimonial house. It further
appears that when PW-5 informant arrived at the house on
the day of the incident, the house was deserted except that
her sister’s dead body was lying. These two are extremely
incriminating circumstances; as in normal course the dead
31

body would not have been abandoned like this. Further,
there are ante mortem injuries found on the body of the
deceased which shows that there was some physical assault
on her before she died. This is further established by the
fact that her knees were tied with an iron wire even after
death. We find this indicates that the deceased was not only
physically assaulted which caused her three ribs to fracture
but she was also tied up with iron wire so as to make her
immobile and thereafter she was set on fire. The demands
of dowry are proved sufficiently by PW-5 and the letter that
the deceased had written to PW-5, clearly shows that the
demands of dowry were not only made but even cruelty in
relation to those demands was committed. The deceased
had expressed in the letter her apprehension of being killed.

The complaint to the Chief Judicial Magistrate under
Sections 494, 498A of IPC and Sections 3 and 4 of Dowry
Prohibition Act, goes on to further indicate that dowry
related cruelty was committed against the deceased. The
deceased was married to accused Ranjit Kumar on
26.06.1987 which means the death of the deceased occurred
within a little over 2 years of the marriage. We find that the
three main ingredients of Section 304B of IPC have been
proved to trigger the presumption under Section 113B of
the Evidence Act, 1872. The death has occurred within 7
years of the marriage due to burn injuries and there were
demands of dowry accompanied with the physical and
mental cruelty against the deceased prior to her death. The
post-mortem report has revealed the physical assault on her
just before her death. Therefore, we find that the burden of
proof must shift on the accused persons to explain the death
of the deceased. The defence has made a cursory statement
that the deceased caught fire from stove while cooking
food. There is no explanation as to why the deceased was
not taken to hospital or why was the dead body left
unattended to in the morning. The entire conduct of the
accused persons is very suspicious and non-explanation of
same means they have not discharged their burden of proof.

10. However, we must focus our attention to the
fact that there are ten accused persons in this case (one of
them died during the pendency of trial) and it has not been
proved conclusively or even sufficiently that all of the
accused were present in the house when the deceased died.
Since we are proceeding on a presumption we must be
cautious in attaching the guilt to the accused persons whose
32

presence itself can be doubted at the place of incident. In
the present case, Sarita Kumari, her father Bishnudeo Rai
and Binda Rai are not members of this family and they had
no reason to be present at the house of Ranjit Kumar when
the deceased died due to burn injuries. Similar is the case of
Dholan Devi and Deobanti Devi (sisters of Ranjit Kumar)
and their husbands Kailash Rai and Ram Shrestha Rai.
Those persons did not use to live in the house of Ranjit
Kumar and they used to stay in a different village. There is
no evidence to the effect that these accused persons were in
that house when the incident occurred. Therefore, we do not
find it prudent to attach guilt to them in absence of any such
evidence.

23. Now coming over dying declaration, it is apparent that

none of the prosecution witness has been cross-examined in order to

discredit the same, nor they have been suggested to the effect that

when they reached at the place of occurrence, deceased was already

dead. In likewise manner, neither the prosecution witnesses were

suggested that due to severe burn, deceased was not in a position to

make any kind of statement nor doctor was cross-examined/suggested

that due to such nature of burn, the victim would not be in a position

to make any statement.

24. However, the Apex Court had considered the issue in

detail in Vijay Pal v. State (Govt. of NCT of Delhi) reported in

(2015)4 SCC 749 and held as follows:-

“17. The submission of the learned counsel for
the appellant is that the oral dying declaration lacks intrinsic
truth and it does not deserve acceptance. At this juncture we
think it appropriate to refer to certain authorities how an
oral dying declaration is to be scrutinized.

33

18. In the case of Laxman v. State of
Maharashtra[(2002)6 SCC 710], the Constitution Bench has
held thus:

“The juristic theory regarding acceptability of a
dying declaration is that such declaration is made in
extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to
falsehood is silenced, and the man is induced by the most
powerful consideration to speak only the truth.
Notwithstanding the same, great caution must be exercised
in considering the weight to be given to this species of
evidence on account of the existence of many circumstances
which may affect their truth. The situation in which a man
is on the deathbed is so solemn and serene, is the reason in
law to accept the veracity of his statement. It is for this
reason the requirements of oath and cross-examination are
dispensed with. Since the accused has no power of cross-
examination, the courts insist that the dying declaration
should be of such a nature as to inspire full confidence of
the court in its truthfulness and correctness. The court,
however, has always to be on guard to see that the statement
of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must
further decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to satisfy
whether the deceased was in a fit mental condition to make
the dying declaration looks up to the medical opinion. But
where the eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the medical
opinion will not prevail, nor can it be said that since there is
no certification of the doctor as to the fitness of the mind of
the declarant, the dying declaration is not acceptable. A
dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive
[pic]and definite.”

19. The aforesaid judgment makes it absolutely
clear that the dying declaration can be oral or in writing and
any adequate method of communication whether by words
or by signs or otherwise will suffice, provided the
communication is positive and definite. There cannot be
any cavil over the proposition that a dying declaration
cannot be mechanically relied upon. In fact, it is the duty of
34

the Court to examine a dying declaration with studied
scrutiny to find out whether the same is voluntary, truthful
and made in a conscious state of mind and further it is
without any influence.

20. At this juncture, we may quote a passage
from Babulal v. State of M.P.[ (2003)12 SCC 490], wherein
the value of dying declaration in evidence has been stated:-

“7. … A person who is facing imminent death,
with even a shadow of continuing in this world practically
non-existent, every motive of falsehood is obliterated. The
mind gets altered by most powerful ethical reasons to speak
only the truth. Great solemnity and sanctity is attached to
the words of a dying person because a person on the verge
of death is not likely to tell lies or to concoct a case so as to
implicate an innocent person. The maxim is “a man will not
meet his Maker with a lie in his mouth” (nemo moriturus
praesumitur mentiri). Mathew Arnold said, “truth sits on the
lips of a dying man”. The general principle on which the
species of evidence is admitted is that they are declarations
made in extremity, when the party is at the point of death,
and when every hope of this world is gone, when every
motive to falsehood is silenced and mind induced by the
most powerful consideration to speak the truth; situation so
solemn that law considers the same as creating an
obligation equal to that which is imposed by a positive oath
administered in a court of justice.”

21. Dealing with the oral dying declaration, a
two-Judge Bench in Prakash V. State of M.P [(1992)4 SCC
225], has stated thus:

“11. … In the ordinary course, the members of
the family including the father were expected to ask the
victim the names of the assailants at the first opportunity
and if the victim was in a position to communicate, it is
reasonably expected that he would give the names of the
assailants if he had recognised the assailants. In the instant
case there is no occasion to hold that the deceased was not
in a position to identify the assailants because it is nobody’s
case that the deceased did not know the accused
[pic]persons. It is therefore quite likely that on being asked
the deceased would name the assailants. In the facts and
circumstances of the case the High Court has accepted the
dying declaration and we do not think that such a finding is
35

perverse and requires to be interfered with.”

22. Thus, the law is quite clear that if the dying
declaration is absolutely credible and nothing is brought on
record that the deceased was in such a condition, he or she
could not have made a dying declaration to a witness, there
is no justification to discard the same. In the instant case,
PW-1 had immediately rushed to the house of the deceased
and she had told him that her husband had poured kerosene
on her. The plea taken by the appellant that he has been
falsely implicated because his money was deposited with
the in-laws and they were not inclined to return, does not
also really breathe the truth, for there is even no suggestion
to that effect.

23. It is contended by the learned counsel for
the appellant when the deceased sustained 100% burn
injuries, she could not have made any statement to her
brother. In this regard, we may profitably refer to the
decision in Mafabhai Nagarbhai Raval v. State of
Gujarat[(1992)4 SCC 69], wherein it has been held a person
suffering 99% burn injuries could be deemed capable
enough for the purpose of making a dying declaration. The
Court in the said case opined that unless there existed some
inherent and apparent defect, the trial Court should not have
substituted its opinion for that of the doctor. In the light of
the facts of the case, the dying declaration was found to be
worthy of reliance.

24. In State of Madhya Pradesh v. Dal Singh
and Others[(2013)14 SCC 159], a two-Judge Bench placed
reliance on the dying declaration of the deceased who had
suffered 100% burn injuries on the ground that the dying
declaration was found to be credible.”

25. In Gangabhavani v. Rayapati Venkat Reddy reported

in 2013 Cr.L.J. 4618, it has been held:-

17. This Court in Laxmibai (Dead) Thr. L.Rs.
Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR
2013 SC 1204 examined the effect of non- cross
examination of witness on a particular fact/circumstance
and held as under:

“31. Furthermore, there cannot be any dispute
36

with respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of the
statement of a witness, the said witness must be given an
opportunity to explain his statement by drawing his
attention to that part of it, which has been objected to by the
other party, as being untrue. Without this, it is not possible
to impeach his credibility. Such a law has been advanced in
view of the statutory provisions enshrined in Section 138 of
the Evidence Act, 1872, which enable the opposite party to
cross-examine a witness as regards information tendered in
evidence by him during his initial examination in chief, and
the scope of this provision stands enlarged by Section 146
of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as regards
the same, in the absence of questions put to him with
respect to the circumstances which indicate that the version
of events provided by him, is not fit to be believed, and the
witness himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to give a full
and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses.” (Emphasis
supplied) (See also: Rohtash Kumar v. State of Haryana, JT
2013 (8) SC 181; and Gian Chand Ors. v. State of
Haryana, JT 2013 (10) SC 515).

18. Thus, it becomes crystal clear that the
defence cannot rely on nor can the court base its finding on
a particular fact or issue on which the witness has not made
any statement in his examination-in- chief and the defence
has not cross examined him on the said aspect of the matter.

26. After having been duly substantiated at the end of the

prosecution that the deceased died of burn injuries within one year of

her marriage at her Sasural by way of pouring K-oil, smell found

coming from dead body as well as at place of occurrence and during
37

intervening period demand of dowry (motorcycle as well as big TV)

continued and for that she was tortured by her Sasuralwala attracts

presumption in terms of 113 B of the Evidence Act, though rebuttable

was to be taken up by the defence/appellant and it was expected at his

end to have properly discharged the same by way of explaining the

same. It is evident from the record that neither any DW nor any chit of

paper has been adduced on behalf of defence, at least should have

examined the doctor who had attended the deceased to suggest that

the oral dying declaration having at the end of the deceased was not at

all plausible, probable, possible and so, the aforesaid theme should be

disbelieved while appreciating the same and in likewise manner, over

demand as well as torture having inflicted over deceased.

27. Consequent thereupon, this appeal lacks merit and is,

accordingly, dismissed.

28. Appellant is under custody which he will remain till

saturation of the sentence.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE 25.07.2017
Uploading Date 12.09.2017
Transmission 12.09.2017
Date

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