Jaideep Narang vs State on 19 September, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: August 31, 2017
% Judgment Delivered on: September 19, 2017

+ CRL.A. 441/2001

JAIDEEP NARANG ….. Appellant
Through: Mr.Ajay Burman, Sr.Advocate
with Ms.Sadhvi Gaur,
Ms.Tanya Harnal Mr.Harsit
Khurana, Advocates

versus

STATE ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State with SI Sazesh
Khan PS Subzi Mandi
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. Case FIR No.185/1991 was registered at PS Subzi Mandi on the
basis of statement made by Smt.Kiran Narang (deceased). Initially the
FIR was registered under Section 498-A/306 IPC, however after the
death of Smt.Kiran Narang, the FIR was converted into Section
498-A/304-B/34 IPC. The chargesheet was filed against four accused
persons namely O.P.Narang (father-in-law), Rita Narang (mother-in-
law), Jaideep Narang (husband) and Vineet Narang @ Babbu (brother-
in-law/devar).

CRL.A. No.441/2001 Page 1 of 21

2. Vide impugned judgment dated 23rd May, 2001 while the three
accused persons namely O.P.Narang (father-in-law), Rita Narang
(mother-in-law) and Vineet Narang (brother-in-law/devar) have been
acquitted of the charges, the appellant Jaideep Narang – husband of
the deceased has been convicted for committing the offence
punishable under Section 498-A/306 IPC for treating his wife with
cruelty and also for abetting commission of suicide. Vide order on
sentence dated 28th May, 2001, the appellant has been sentenced as
under:-

Offence Sentence
U/S 498A IPC RI for 1 year and fine of `2,000/-. In
default SI for 6 months.

U/S 306 IPC RI for 2 ½ years and fine of `5,000/-.
In default SI for 1 year.

Both the sentences were ordered to run concurrently.

3. In brief the prosecution case is that on 19th September, 1991 on
receipt of DD No.7A SI Suresh Kumar along with Constable Ram
Chander reached the place of occurrence i.e. 1735, Sohan Ganj, Subzi
Mandi, Delhi-1100007 and came to know that Kiran Narang who
suffered burns had been removed to Hindu Rao Hospital.

4. While leaving Cont.Ram Chander to guard the spot he left for
Hindu Rao Hospital along with the Executive Magistrate from where
he came to know that Kiran Narang as well her husband Jaideep
Narang have been referred to Loknayak Jai Parkash Narain Hospital.
He reached Loknayak Jai Parkash Narain Hospital and collected the

CRL.A. No.441/2001 Page 2 of 21
MLC of Kiran Narang and Jaideep Narang. Kiran Narang succumbed
to the burn injuries same night at about 10.40 pm.

5. The first dying declaration has been recorded by PW-20
Dr.Anuj K.Bhatnagar at the time of her medical examination on
19.09.1991 at 11.55 am after observing that the patient was conscious,
well oriented in time, place and person. As per the alleged history
given by Kiran Narang, she was doused with kerosene by her husband
and set on hire by him.

6. The second dying declaration was made before PW-15
Sh.B.P.Singh, Executive Magistrate which is to the following effect:

‘APNE AAP JALI HUN TEL SE (I have burnt myself by
pouring kerosene oil)
She further stated that her Pati, Devar, Sasur and Saas all had
given beating to her in the morning on that day i.e. on 19.09.1991.

Her Devar Babbu, O.P.Narang (father-in-law), Jaideep (husband) etc.
used to given beating to her daily as a result of which she used to feel
harassed. On 19.09.1991 being fed up with them, she poured kerosene
on herself and set herself on fire. She poured the oil on herself outside
the room and all of them were present at home but none came to save
her and she had done that being fed up with these persons. They also
used to taunt her for her dowry articles. She has no complaint against
any other person except her father-in-law, mother-in-law, devar and
husband as these persons used to give beating to her. She informed
her brother and mother about this ‘maar peet’ but they used to counsel
her saying that she had to live there only. She got married about thre
years before.

CRL.A. No.441/2001 Page 3 of 21

7. After the registration of case under Section 498A/306 IPC, SI
Suresh Kumar reached the spot and got the same photographed and
also seized the articles lying there. He again visited the hospital and
found Jaideep Narang, husband of the deceased present in the hospital
and arrested him. As Smt.Kiran Narang expired on the same date
during night time at 10.40 pm, SDM, Patel Nagar was informed about
her death and FIR was converted from Section 306 IPC to Section
304B IPC. Inquest proceedings were conducted after arrival of
brother and mother of the deceased from Agra. After completion of
investigation charge-sheet was filed.

8. All the accused persons were charged for the offences
punishable under Sections 498A/304B/34 IPC to which they pleaded
not guilty.

9. Prosecution examined 22 witnesses to bring home guilt of all
the accused persons. After examination of all the accused persons
under Section 313 Cr.P.C. wherein they pleaded innocence and
claimed that she suffered burn injuries while lighting the stove, stated
that the husband in fact had suffered burn injuries while trying to save
her.

10. Mr.Ajay Burman, learned Senior Counsel for the appellant has
filed the written submissions and made oral submissions as well. The
arguments advanced by learned Senior Counsel for the appellant can
be summarized as under:-

(i) There are two dying declarations which are inconsistent, hence
not reliable.

CRL.A. No.441/2001 Page 4 of 21

(ii) The deceased having suffered 95% burns at the time of
admission was not in a fit state of mind to make a dying declaration.

(iii) There is a long gap between the first dying declaration made
before the doctor recorded on the MLC Ex.PW20/A and the second
dying declaration made before the Executive Magistrate Ex.PW15/A.

(iv) The Executive Magistrate has not recorded the time of
recording the dying declaration. No opinion was taken by him just
before recording the dying declaration nor satisfied himself by putting
questions to her as to whether she was in a fit state of mind.

(v) The dying declaration is in the handwriting of Investigating
Officer and not of the Executive Magistrate.

(vi) The dying declaration is unreliable as the deceased did not
make any such statement on her way to the hospital.

(vii) If the two dying declarations have not been believed to convict
the other three accused persons i.e. father-in-law, mother-in-law and
devar, the same could not have been considered reliable for convicting
the husband that too when the first dying declaration wherein she
named the husband to be the person who doused her with kerosene
and set her on fire, has been rejected.

11. Mr.Kewal Singh Ahuja, learned APP for the State has made the
following submissions:-

(i) The appellant was present at the time of incident.

(ii) The dying declaration can be the sole basis of conviction.

(iii) The Doctor had no motive to falsely implicate the husband and
he recorded the dying declaration truthfully.

CRL.A. No.441/2001 Page 5 of 21

(iv) The law is well settled that an order of conviction can be passed
solely on the basis of a dying declaration given to the doctor, who was
fully competent and thus no corroboration is required. The law with
regard to conviction on the basis of a dying declaration is well settled.
It is equally well settled that any order of conviction can be based
solely on the basis of a dying declaration and no corroboration is
required provided the Court is satisfied that the dying declaration is
truthful, independent and the person was in a fit state of mind and that
the statement was not made on account of any tutoring or prompting.

12. I have considered the rival contentions and carefully gone
through the LCR as well the testimony of the prosecution witnesses.

13. The learned ASJ on appreciating the testimony of the
prosecution witnesses especially the mother, brother and bhabhi
(PW-4 to PW-6) of the deceased and the two dying declarations (i)
recorded on the MLC Ex.PW-20/A and (ii) Another made before the
SDM, Patel Nagar Ex.PW-15/A, learned Trial Court has acquitted the
three accused persons i.e. mother-in-law, father-in-law and brother-in-
law of the deceased for committing the offences punishable under
Section 498A/304B IPC. The appellant Jaideep Narang – husband of
the deceased has been convicted for committing the offence
punishable under Section 498-A/306 IPC and sentenced in the manner
stated above.

14. The reasons recorded for the acquittal of the three co-accused
are as under:

(i) (page 7, para 11 of the judgment) The first dying declaration
recorded by Dr.Anuj Kumar (PW-20) on the MLC Ex.PW-20/A on

CRL.A. No.441/2001 Page 6 of 21
19th September, 1991 when deceased Kiran Narang was brought to
JPN Hospital in injured condition at 11:55 AM was as under:

“At the time of examination, the patient was conscious
well oriented in time, place and person; according to
history given by her, she was allegedly doused with
kerosene by her husband and set on fire by him.”

(ii) As per the above dying declaration, the culpability of the
husband Jaideep Narang falls within the ambit of the Section 302 IPC
and cannot be used for attracting Section 304B IPC.

(iii) The second dying declaration Ex.PW-15/A was made before the
SDM PW-15 Sh.B.P.Singh, wherein she stated as under:

“Apne Aap Jali Hun Tel Se (I burnt myself by pouring
kerosene oil); then in the next sentence she starts
narrating the incidents by stating that on 19-9-91 in the
morning all the accused persons jointly gave beatings to
her, they used to beat her daily and she was very much in
trouble. As a result of which she decided to set herself on
fire. She also states therein that the accused persons
used to taunt her in connection with the dowry brought
by her in marriage.”

(iv) In both the dying declarations there is not even a whisper in
respect of any dowry demand being made by any of the accused
persons soon before her death or even prior thereto at any point of
time after her marriage till the date of occurrence.

15. Both the dying declarations were rejected by the learned Trial
Court to hold that on the basis of these two dying declarations
Ex.PW-15/A (made before the SDM) Ex.PW-20/A (as recorded by
the doctor in the MLC), the accused persons cannot be convicted for
committing the offence punishable under Section 304B IPC.

CRL.A. No.441/2001 Page 7 of 21

16. The testimony of mother, brother and bhabhi of the deceased,
PW-4 to PW-6, have been rejected by the learned Trial Court for the
following reasons:

(i) Kiran Narang expired on 19th September, 1991 at 10:40 PM and
PW-4 mother and PW-5 brother reached the hospital in the morning of
20th September, 1991 and after receiving the dead body of the
deceased Kiran Narang for cremation, went back to Agra without
making any complaint either to the police or to the Executive
Magistrate.

(ii) Statements have been made by PW-4 to PW-6 much thereafter
on 9th October, 1991 without giving any explanation for this delay
which reveals deliberation on their part to give coloured statement and
no plausible explanation has been give for not making any statement
before the Executive Magistrate when they came to Delhi on
20th September, 1991.

(iii) During their deposition before the Court, the version of PW-4
to PW-6 about the dowry demand was an improvement as no such
statement before the Executive Magistrate.

(iv) PW-4 to PW-6 have not come out with any version that the
deceased Kiran Narang was subjected to cruelty or harassment in
connection with the dowry which was agreed to be given on or before
or after the marriage. Therefore, their testimony does not fulfill the
second ingredient of Section 304B IPC.

17. Thereafter the culpability of the accused persons for committing
offence punishable under Section 498A/34 IPC has been discussed by
the learned ASJ in the impugned judgment as under:

CRL.A. No.441/2001 Page 8 of 21

“So far as the harassment of Smt.Kiran Narang with a
view to coercing or any person related to her to meet any
unlawful demand for any property or valuable property
or on account of failure to meet such demand as
contemplated by clause (b) of explanation appended to
Section 498A is concerned, that does not stand proved as
observed and discussed by me while deciding the
culpability of the accused persons for the offence u/s
304B of the IPC. Certainly, when Section 304B has
collapsed, the explanation ‘b’ of Section 498A shall also
collapse simultaneously. Therefore, we need not examine
and discuss the culpability of the accused persons for the
harassment of Kiran as per explanation ‘b’ of Section
498A of the IPC. Now, we shall determine the cruelty of
harassment in the light of explanation (a) of Section
498A of the IPC. Reverting to the second dying
declaration Ex.PW15/A I can see that Smt.Kiran Narang
committed suicide. If the prosecution succeeds in
proving cruelty having been committed by the accused
persons on Smt.Kiran Narang, as per explanation ‘a’ of
Section 498A of the IPC, in that event the culpability and
involvement of the accused persons for the offence u/s
306 shall have to be considered and determined.

18. Learned ASJ again dealt with the two dying declarations and
the law relating to the admissibility of the dying declaration despite
the fact that the two dying declarations had already been rejected
while acquitting all the accused persons for the offence punishable
under Section 304B/34 IPC. The reasons given for again reverting to
the dying declarations and placing some reliance thereon to convict
the husband/appellant have been given as under:

(i) Extreme step of committing suicide is taken by a person under
stress of extreme circumstances.

CRL.A. No.441/2001 Page 9 of 21

(ii) While accepting or rejecting a dying declaration it must be kept
in mind as to in what circumstances a particular dying declaration was
made by the maker of it.

(iii) At the time of making first dying declaration, in the opinion of
the learned ASJ, the deceased made her statement under heat of
moment and actuated by utter rage towards her husband Jaideep
Narang.

(iv) The time gap between her receiving 95% burn injuries and her
first dying declaration is not much as she was immediately removed to
the hospital and it was but natural to express her anger that she was
doused by kerosene by her husband and set on fire by him.

(v) For this psychological behavior and conduct, the truth cannot be
sacrificed if it can be ascertained from the very facts and
circumstances of the case.

(vi) As regards second dying declaration Ex.PW-15/A recorded by
SI Suresh Kumar in the presence of PW-15 Executive Magistrate,
though the Executive Magistrate PW-15 did not record his satisfaction
about the fitness of the maker to make the statement, he stated so in
his deposition before the Court and the omissions are not fatal and on
account of certain omissions truth cannot be sacrificed.

(vii) While making the second dying declaration Ex.PW-15/A before
the Executive Magistrate on seeking that the enraged feelings of the
deceased Kiran Narang having subsided with the passage of time, the
relevant discussion is as under:

“As regards the commission of somer sault by Smt.Kiran
Narang (deceased) in making the second dying

CRL.A. No.441/2001 Page 10 of 21
declaration Ex.PW-15/A, it was the result of enraged
feelings having subsided with the passage of time, then
good sense prevailing and then narrating the truth,
although not absolutely since still making exaggerations
therein. Now the first dying declaration has to be taken
in and to be read along with the second dying
declaration because this process will help in driving out
the truth. From the first dying declaration it is
ascertainable that as a matter of fact, Smt.Kiran Narang
was aggrieved from the act and conduct of her husband
Jai Deep Narang; it is he whom she wanted to punish.
Therefore, while the second statement she mentioned
husband she simultaneously, out of vengeance and
vindictiveness, roped in her mother-in-law, father-in-law
and dewar also. I am of the considered view that the
husband Sh.Jai Deep Narang, who gave her beatings on
the day of occurrence, drove her to take this extreme step
of committing suicide. PW4 Smt.Santosh, the mother of
deceased Kiran also stated in examination in chief that
Smt.Kiran used to disclose to PW4 that Sh.Jai Deep
Narang her husband was entangled with other girls and
one such woman was Manju, who even projected herself
as of that status quo Jai Deep Narang which status Kiran
Narang enjoys with her husband. This allegation has not
been denied by the accused persons. Although this
allegation has not been leveled by Smt.Kiran in her dying
declaration yet I am of the view that it is difficult for a
dying person to narrate the incident in detail. However,
this allegation is sufficient to believe that throughout it
was husband of deceased who caused miseries for being
suffered by Smt.Kiran deceased. There might have been
minor quarrels between the deceased and her in-laws
which are natural in matrimonial life but these minor
mishaps cannot be taken amounting to what
contemplated the presumption contained in Section 113A
of the Indian Evidence Act which enables a Court to
presume that a commission of suicide by a woman has

CRL.A. No.441/2001 Page 11 of 21
been abetted by her husband or by her relatives if two
conditions are satisfied:

a) that the women has committed suicide within a
period of seven years from her marriage; and

b) that the husband or his relatives has subjected her
to cruelty.

19. Thereafter learned Additional Sessions Judge discussed the
provisions of Section 113-A of the Indian Evidence Act and observed
that the husband had subjected his wife Kiran Narang to cruelty by
beating her on that day and also he was involved with a girl named
Manju. The conduct of the husband, his involvement with another girl
and his giving beating to his wife on the same day on which the
incident had taken place led her to commit suicide. The act of beating
is sufficient to constitute cruelty.

20. The husband has been convicted for committing offence
punishable under Section 498A/306 IPC for the following reasons:

“As regards abetment, it has been observed by the
Hon’ble Supreme Court of India in a case reported as
AIR 1991 SC 1929 that:-

“Abetment is an intentional aiding of suicide
by the husband or his relatives. When the
question arises as to whether the accused
has abetted the women in committing
suicide, the Court will consider cumulating
effect of all the circumstances including the
conduct of the accused, relation between the
parties, time, place or manner in which the
incident took place ……etc. etc.”

In the mirror of this judgment I have seen the conduct of
the husband accused, his involvement with girl named
Manju as abovesaid, the husband-accused having given

CRL.A. No.441/2001 Page 12 of 21
abeting to Smt.Kiran Narang, his wife on the same day
on which the incident took place and the first dying
declaration of Smt.Kiran Narang revealing utter rage of
Smt.Kiran Narang towards her husband accused Jai
Deep Narang, all reflects upon the conduct of accused
Jai Deep Narang which ultimately led to the commission
of the suicide by Smt.Kiran Narang. The Act of beating is
sufficient act to constitute cruelty. As per the judgment
reported as Crl.L.J. 1837 (Calcutta), the act of abetting
was held as constituting cruelty by observing that:-

“Where the accused was alleges to have
assaulted his wife with his hands and stick
the evidences of eye witnesses regarding
assault torture was found trustworthy and
corroborated by medical evidence and it
was held that accused was held guilty of
subjecting wife to cruelty in the event of the
failure by the accused to explain the injury
suffered by the wife in her marital home.”

As regards Post Mortem it was conducted by PW-3
Dr.P.L.Dixit who proved the Post Mortem Report, Ex.
PW3/A, he also prove on record the viscera report
Ex.PW3/8. He opines cause of death due to shock
consequent upon anti-mortem 95% burns of body surface
which were recent in duration and caused by fire.

The testimony of all the material witnesses
relevant for disposal of the case stands discussed. I
would like to record at this juncture that the Judgment
cited by ld. defence counsel reported as 1999 FLC 544
High Court of Karnataka wherein it was held in answer
to the supplementary argument advanced by the ld.State
Public Prosecutor to the effect that even if main charge
u/s 304 B of the IPC were to fail, the accused still be
convicted for the offence u/s 498A of the IPC as the
Court must draw the inference that it was only such
harassment and cruelty of an abnormal high order that
forced her to end her life. Their Lordship held that there

CRL.A. No.441/2001 Page 13 of 21
is practical difficulty there in the way of the prosecution
in so far as once the evidence fails to inspire confidence
on the main charge it would be in violation of the rules
relating to appreciating of evidence, if the Court were to
accept the same evidence and held that subsidiary charge
is established; the rule of consistency is one of the
cardinal principal of criminal jurisprudence and
something which the Court cannot lose site of-cannot be
availed of since in the instant case all the accused are
going to be acquitted for the offence under Section 304-B
of the IPC because the prosecution has failed to prove
harassment or cruelty as contemplated by explanation (b)
Section 498-A of the IPC. The case now is being
considered for the offence under Section 306 of the IPC
read with explanation (a) of Section 498-A of the IPC. At
this juncture one more question arises whether the
accused can be held guilty and convicted for an offence
of which there is no charge having been framed against
the accused persons. The answer is that even if there is
no charge for an offence but from the facts and
circumstances of the case and the evidence brought on
record the smaller offence in comparison to the offence
for which the accused have been charged and were
facing trial surfaces that can be considered at the time of
writing of judgment. So is the situation here. The offence
under Section 306 of the IPC read with explanation (a) of
Section 498-A IPC certainly is smaller in comparison to
the Section 304-B of the IPC. The sentence prescribed for
the offence under Section 304-B of IPC is imprisonment
of not less than seven years but which may extend to
imprisonment for life whereas the punishment prescribed
for the offence u/s 306 of the IPC is imprisonment of
either description for a term which may extend to 10
years and shall also be liable for fine. For offence u/s
304-B of the IPC there is minimum sentence prescribed
which is not less than 7 years but for the offence u/s 306
the maximum sentence prescribed is imprisonment which
may extend to 10 years. The ld. counsel for the accused

CRL.A. No.441/2001 Page 14 of 21
persons has argued that it is a fit case where benefit of
doubt can be given to the accused persons. I have
considered this argument of the ld. counsel for the
accused persons in the light of above observations and
discussions and I find that although, doubts came to be
created in the prosecution case particularly on account
of the aforesaid two dying declaration made by deceased
Smt.Kiran Narang yet I am of the considered opinion that
those doubts do not seem to have gone to the extent of
creating a phenomenon as that of prosecution case not
being free from the shadow of reasonable doubt in
respect of accused Jai Deep Narang for the offence u/s
498-A and 306 of the IPC; however, ld. defence counsel
is justified in claiming this benefit in favour of remaining
accused persons in respect of offences u/s 498A read with
explanation(a) and u/s 306 of the IPC.

In the light of the above observations and
discussions I can safely conclude that the prosecution
has succeeded in proving its case for the offence u/s
498A read with explanation (a) appended thereto and for
the offence u/s 306 of the IPC against accused Jai Deep
Narang beyond the shadow of reasonable doubt.
However, prosecution has failed to prove its case against
all the accused persons for the offence u/s 304-B of the
IPC and 498A read with explanation (b) appended
thereto.

Consequently, all the accused persons are
acquitted of the charge for the offences u/s 498A read
with explanation (b) appended thereto and 304-B of the
IPC. However, only accused Jai Deep Narang is held
guilty for the offence u/s 498A read with explanation (a)
appended thereto and he is also held guilty for the
offence u/s 306 of the IPC and he is convicted
accordingly for these offences.”

21. In a recent report K.V.Prakash babu vs. State of Karnataka
AIR 2016 SC 5430, the question that emerged for consideration

CRL.A. No.441/2001 Page 15 of 21
before the Supreme Court was whether involvement of husband in an
extra-marital affair invites his conviction under Section 306 IPC for
abetment to commit suicide by the wife, which was answered as
under:-

’15. Slightly recently in Ghusabhai Raisangbhai Chorasiya
v. State of Gujarat, the Court perusing the material on
record opined that even if the illicit relationship is proven,
unless some other acceptable evidence is brought on record
to establish such high degree of mental cruelty the
explanation (a) to Section 498-A of the IPC which includes
cruelty to drive the woman to commit suicide, would not be
attracted. The relevant passage from the said authority is
reproduced below:-

“True it is, there is some evidence about the illicit
relationship and even if the same is proven, we are of
the considered opinion that cruelty, as envisaged
under the first limb of Section 498A Indian Penal
Code would not get attracted. It would be difficult to
hold that the mental cruelty was of such a degree that
it would drive the wife to commit suicide. Mere extra-
marital relationship, even if proved, would be illegal
and immoral, as has been said in Pinakin
Mahipatray Rawal (supra), but it would take a
different character if the prosecution brings some
evidence on record to show that the accused had
conducted in such a manner to drive the wife to
commit suicide. In the instant case, the accused may
have been involved in an illicit relationship with the
appellant no.4, but in the absence of some other
acceptable evidence on record that can establish such
high degree of mental cruelty, the Explanation
to Section 498-A which includes cruelty to drive a
woman to commit suicide, would not be attracted.”

CRL.A. No.441/2001 Page 16 of 21

16. The concept of mental cruelty depends upon the milieu
and the strata from which the persons come from and
definitely has an individualistic perception regard being had
to one’s endurance and sensitivity. It is difficult to
generalize but certainly it can be appreciated in a set of
established facts. Extra-marital relationship, per se, or as
such would not come within the ambit of Section 498-
A Indian Penal Code. It would be an illegal or immoral act,
but other ingredients are to be brought home so that it
would constitute a criminal offence. There is no denial of the
fact that the cruelty need not be physical but a mental
torture or abnormal behaviour that amounts to cruelty or
harassment in a given case. It will depend upon the facts of
the said case. To explicate, solely because the husband is
involved in an extra-marital relationship and there is some
suspicion in the mind of wife, that cannot be regarded as
mental cruelty which would attract mental cruelty for
satisfying the ingredients of Section 306 Indian Penal Code.

17. We are absolutely conscious about the presumption
engrafted under Section 113-A of the Evidence Act. The said
provision enables the Court to draw presumption in a
particular fact situation when necessary ingredients in order
to attract the provision are established. In this regard, we
may reproduce a passage from Pinakin Mahipatray Rawal
(supra):-

Criminal law amendment and the rule of procedure
was necessitated so as to meet the social challenge
of saving the married woman from being ill- treated
or forcing to commit suicide by the husband or his
relatives, demanding dowry. Legislative mandate of
the section is that when a woman commits suicide
within seven years of her marriage and it is shown
that her husband or any relative of her husband had
subjected her to cruelty as per the terms defined
in Section 498-A Indian Penal Code, the court may
presume having regard to all other circumstances of
the case that such suicide has been abetted by the

CRL.A. No.441/2001 Page 17 of 21
husband or such person. Though a presumption
could be drawn, the burden of proof of showing that
such an offence has been committed by the accused
under Section 498-A Indian Penal Code is on the
prosecution.” We have reproduced the aforesaid
passage only to highlight that the Court can take aid
of the principles of the statutory presumption.

18. In the instant case, as the evidence would limpidly show,
the wife developed a sense of suspicion that her husband
was going to the house of Ashwathamma in Village Chelur
where he got involved with Deepa, the daughter of
Ashwathamma. It has come on record through various
witnesses that the people talked in the locality with regard to
the involvement of the appellant with Deepa. It needs to be
noted that Deepa, being not able to digest the humiliation,
committed suicide. The mother and the brother of Deepa
paved the same path. In such a situation, it is extremely
difficult to hold that the prosecution has established the
charge under Section 498A and the fact that the said cruelty
induced the wife to commit suicide. It is manifest that the
wife was guided by the rumour that aggravated her
suspicion which has no boundary. The seed of suspicion
planted in mind brought the eventual tragedy. But such an
event will not constitute the offence or establish the guilt of
the accused-appellant under Section 306 of the Indian Penal
Code.

19. Having said that we intend to make it clear that if the
husband gets involved in an extra-marital affair that may
not in all circumstances invite conviction under Section
306 of the Indian Penal Code but definitely that can be a
ground for divorce or other reliefs in a matrimonial dispute
under other enactments. And we so clarify.’

22. On careful perusal of the LCR (re-constructed) and the
impugned judgment, it is evidenct that the learned Trial Court had
rejected both the dying declarations while passing the impugned

CRL.A. No.441/2001 Page 18 of 21
judgment and acquitting the appellant i.e. the husband and the three
co-accused persons i.e. father-in-law, mother-in-law and brother-in-
law for the offence punishable under Section 304-B/34 IPC. The
learned Trial Court has also returned a finding that it was not a
case of dowry death. The testimony of PW-4 to PW-6 i.e. the
mother, brother and bhabhi of the deceased before the Court were also
disbelieved while returning a finding that it was not a case of dowry
death. The accused husband Jaideep Narang was also not found
culpable for the offence punishable under Section 302 IPC for the
reason that though in the first dying declaration the deceased blamed
him for dousing her with kerosene and setting her on fire, in the
second dying declaration she stated that ‘Apne Aap Jali Hoon Tel Se’
as she was fed-up with the beatings given by her father-in-law,
mother-in-law, husband and brother-in-law.

23. The State has not preferred any appeal challenging the acquittal
of father-in-law, mother-in-law and brother-in-law of the offence
punishable under Section 498-A/304-B/34 IPC.

24. The learned ASJ has convicted the appellant for the offence
punishable under Section 498A IPC for treating the deceased with
cruelty within the meaning of Explanation (a) on two grounds:

(i) On the date of occurrence he had given beating to her.

(ii) He was involved with another girl namely Manju.

25. The above two findings by learned ASJ have to be termed as
perverse being based on no material to arrive at above conclusion.
Once the learned ASJ proceeded to reject the two dying declarations
and disbelieved the testimony of PW-4 to PW-6, he was left with no

CRL.A. No.441/2001 Page 19 of 21
evidence to hold the husband guilty for the offence punishable under
Section 498-A [Explanation (a)]/306 IPC by invoking presumption
under Section 113A Evidence Act.

26. Here it is relevant to mention that in none of the dying
declarations the deceased stated about the involvement of her husband
with another lady. Neither in the FIR nor in the statements made by
PW-4 to PW-6 before the Executive Magistrate, there was any
mention of involvement of the appellant Jaideep Narang any with
another lady or a lady named Manju. Statement of PW-4 (mother of
the deceased) that Jaideep Narang was involved with another lady
Manju and her statement was disbelieved observing that these facts
were not mentioned before the Executive Magistrate or during
investigation. Learned ASJ could not have picked up one line from the
second dying declaration about the beating being given and one line
from the deposition of PW-4, the mother of the deceased, which was
held to be an ‘improvement’ to return a finding that only the husband
had subjected her to cruelty by giving beating to her on that day and
for his involvement with another lady.

27. In view of the law as laid down by the Apex Court in
K.V.Prakash Babu vs. State of Karnataka AIR 2016 SC 5430 and the
two dying declarations being rejected by the learned Trial Court for
acquitting all the four accused persons including the husband
(appellant herein) for committing the offence punishable under
Section 304-B IPC and three accused persons i.e. father-in-law,
mother-in-law and devar for committing the offence punishable under
Section 498-A IPC, the second dying declaration by Kiran Narang that

CRL.A. No.441/2001 Page 20 of 21
she was given beatings on that day by all the accused persons jointly,
could not have been relied upon by the learned ASJ to convict the
appellant/husband for committing the offence punishable under
Section 498-A/306 IPC.

28. The appeal is allowed. The conviction and sentence awarded to
the appellant are set aside.

29. The appellant is acquitted of all the charges.

30. LCR (reconstructed) be sent back alongwith copy of this order.

31. A copy of this order be also sent to the concerned Jail
Superintendent for information.

PRATIBHA RANI
(JUDGE)
SEPTEMBER 19, 2017
‘hkaur/st’

CRL.A. No.441/2001 Page 21 of 21

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