Supreme Court of India
CASE NO.:Appeal (crl.) 887 of 1998
PETITIONER:ARVIND SINGH
Vs.
RESPONDENT:STATE OF BIHAR
DATE OF JUDGMENT: 26/04/2001
BENCH:Umesh C. Banerjee & K.G. Balakrishnan
JUDGMENT:BANERJEE,J.
The appeal in question tell the tale of a young girl
dying out of burn injuries. Whereas the learned Sessions
Judge convicted each of the accused being the husband, the
father-in-law, the mother-in-law and the brother-in-law
under Section 304 B of the Indian Penal Code and 498A/34
together with 120B of the Indian Penal Code and sentenced
each of them to undergo imprisonment for life under 304B IPC
and a further sentence of 3 years to each of the accused for
an offence under 498A IPC and in view of the sentences
passed, no need was felt to pass any sentence under Section
120 B IPC. The appeal taken to the High Court stands
allowed so far as the appellant Nos.1,2 and 4 are concerned
upon taking into consideration of the facts under Section
304 B read with Section 34 of the Indian Penal Code as also
under Section 120B of the Code though, however, the
conviction under Section 498A read with Section 34 of the
Code was confirmed. Arvind Singh, the husband was however,
found guilty for murder of the wife Minta Devi and his
conviction under 304 B was converted to Section 302 IPC and
was sentenced to undergo imprisonment for life besides
maintaining the conviction under Section 498A IPC. It is
this conviction and sentence which stands challenged in this
appeal.
Before adverting to the contentions as raised by the
appellant the case of the prosecution can be briefly stated
to be as below: On the basis of the fardbeyan of the
informant Phulamati the mother of the deceased, that the
appellant alongwith other members of the family on the night
of 6/7 March, 1991 had set her daughter on fire and on
having such information the informant alongwith PWs 3,4 and
7 reached the Muhalla and found that the daughter was lying
injured due to burn injuries. The First Information Report
recorded that the daughter of the informant disclosed that
her husband, father-in-law, mother-in-law and other family
members forcibly poured kerosene oil on her body and
lighted, on account of which her entire body was burnt. The
FIR discloses that all the persuasions for removal to a
hospital by reason of the severe burn injuries were
negatived by the in-laws and having failed to persuade the
in-laws, the parents family themselves wanted to take her
back to the hospital but the attempt was not successful
since the deceased succumbed to her injuries.
Incidentally, it may be noted that two specific cases
have been made out in the FIR, firstly, the girl was ugly
looking (though some of the witnesses have stated that she
has been a really good looking girl) and secondly this is a
case of bride torture and demand of dowry to the extent of
Rs.10,000 and a gold ring and since demands could not be
fulfilled the accused persons conspired together and
committed the offence which has resulted in the death of the
girl.
The factual disputes there are not many since the factum
of the death and the cause of death being burn injuries are
admitted. As regards the dowry death a specific submission
was made before the High Court to the effect as below:-
Mr. Verma, learned counsel appearing for the
appellants firstly contended that from a bare reference to
the FIR it would appear that the Investigating Officer by
making interpolation has added the allegation with regard to
demand of dowry. Because the main reason for such an
occurrence was that Minta Devi was an ugly lady and,
therefore, accused persons used to torture her and
ultimately committed her murder. The allegation with regard
to demand of dowry etc. was virtually inserted in different
hand writing at the end of the fact from which interpolation
is apparent. Learned counsel appearing for the State
contended that true it is that the allegation with regard to
demand of dowry was inserted subsequently, but it cannot be
alleged that such an allegation was made after
interpolation.
The High Court also in no uncertain terms recorded that
the statement of Mr. Verma stands justified by reason of
interpolation on the First Information Report. The High
Court also came to the conclusion that there is no evidence
whatsoever that prior to the date of occurrence, there was
any demand for dowry by the accused persons and it is on the
basis of the aforesaid the High Court set aside the
conviction and sentence of Janardan Singh, Lilawati Devi and
Navin Kumar Singh under Section 304 B read with 34 of the
Indian Penal Code as also under 120B of the Indian Penal
Code. The conviction of 498A however, read with Section 34
was confirmed and the bail bonds granted in favour of the
three accused noticed above were directed to be cancelled
and they were ordered to be taken into custody forthwith for
serving out the remaining sentences. As regards Arvind
Singh the husband, the High Court came to the conclusion
that his conviction ought to be converted from Section 304B
to 302 of the Indian Penal Code and sentenced him to undergo
imprisonment for life besides the conviction and sentence of
3 years under Section 498A of the IPC. In the result the
criminal appeal was partly allowed so far as the appellant
Nos. 1,2 and 4 were concerned but appellant No.3 being the
husband (Arvind Singh) subject to the modification of
conviction was dismissed and hence the appeal before this
Court by the grant of special leave.
Burn injuries are normally classified into three
degrees. The first being reddening and blistering of the
skin only; second being charring and destruction of the
full thickness of the skin; third being charring of the
tissues beneath the skin, e.g. fat, muscle and bone.
Be it noted here that if the burn is of a distinctive
shape a corresponding hot object may be identified being
applied to the skin and thus abrasions will have distinctive
patterns but in the event burn injury is a cause of death
60% cases of septicaemia and 34% cases are of
bronchopneumonia. Where infection was by Pseudomonas
pyocyanea, spread to unburnt skin with ulceration may occur,
and internal infection by this organism is especially liable
to damage the walls of blood vessels. Gram-negative shock
may also occur. The external examination in the normal
cases are found in the body being removed from a burnt
building and in the event of so removal the cause of death
would be inhalation of fumes rather than septicaemia as
noticed above. In the event the body is not removed from
the room and the same remains in situ an examination of the
scene must be attempted, as with any other scene of
suspicious death, note being taken as regards the position
of the body, clothes remaining if any and identifiable
objects in the room and so on. The examination of the burns
is also directed to ascertain their position and depth, as
to whether they were sustained in life or not, and whether
their situation gives any indication of the path taken by
the flames or the position of the body when the fire started
if the body is very severely burnt then all the skin surface
may be destroyed, even sometimes make it rather difficult
for identification of the body. A body that is badly burnt
assume the appearance known as pulgilistic attitude and
this is due to heat stiffening and contraction of the
muscles, causing the arms to become flexed at the elbows and
the hands clenched, the head slightly extended and the knees
bent. The appearance resembles the position adopted by a
person engaged in a fight and has led on occasion to
suspicion that death has occurred during some violent crime.
In fact, of course, the body will assume this position when
the fire started. The other aspect of the burn injury is
the heat ruptures may be produced. These are splits of the
skin, caused by contraction of the heated and coagulated
tissues, and the resultant breaches look like lacerated
wounds. They are usually only a few inches, but may be upto
1 or 2 ft in length. Normally they lead to no difficulty in
interpretation, since they only occur in areas of severe
burning, and normally over fleshy areas of the body, like
calves and thighs, where lacerations are uncommon. However,
when they occur in the scalp they may cause greater
difficulties. They can usually be distinguished from wounds
inflicted before the body was burnt, by their appearance,
position in areas of maximum burning and on fleshy areas,
and by the associated findings on internal examination.
(See in this context Taylors Medical Jurisprudence)
Although shock due to extensive burns is the usual cause
of death, delayed death may be due to inflammation of the
respiratory tract caused by the inhalation of smoke. Severe
damage, at least to the extent of blistering of the tongue
and upper respiratory tract, can follow the inhalation of
smoke.
Prosecutions definite case in the matter under
reference is kerosene was poured in all round and thereafter
with lighted match stick the girl was burnt to death alive.
The FIR depicts the case of torture in order to attract
Section 498A together with ingredients of charge under
Section 304B which stands disbelieved by the High Court and
we in the contextual facts accept the observations of the
High Court pertaining thereto having regard to the fact that
the High Court itself has looked into the original FIR and
found it to be so interpolated as contended and it is on
this score that the High Court acquitted the accused persons
under Section 304B: No exception thus can be taken to the
order of acquittal of the charge above and we also record
our concurrence therewith.
The High Court however, has not delved into the issue of
non-examination of Investigating Officer. We are at a loss
to find such an omission on the part of the High Court on
such a vital issue.
Mr. Verma, the learned senior counsel appearing in
support of the appeal contended that conversion of charge
under Section 304B to 302, cannot by stretch be maintained.
It has been contended that the Court having recorded a
finding that the demand for dowry was interpolated and
inserted in the FIR, virtually in a different handwriting,
which was done subsequently it is submitted that, it is
unsafe to rely on the informant PW5 and the Prosecution case
is fit to be rejected outright, more so, when the
Investigating Officer has been kept out of court. Mr.
Verma contended that since the prosecution failed to prove
the charges against any of the accused and that the
conviction and sentence under the aforesaid charges
including that of the appellant having been set aside, the
conviction of the appellant under Section 302 IPC is bad in
law and untenable. The charge under Section 302 IPC is a
major charge and it entails more severe and greater
sentence, being death or imprisonment for life and fine,
whereas in a charge under Section 304B, there is
imprisonment for 7 years which may extend upto life
imprisonment and in that case the court having set aside the
conviction under Section 304B read with 34 and 120B IPC, it
is neither open nor permissible to punish the accused under
Section 302 IPC which in all material particular amounts to
enhancement of sentence and inflicting greater punishment
unless the petitioner is given an opportunity to show cause
without which the court shall not inflict greater punishment
[refer to Section385 Cr.P.C.]. Mr. Verma contended here
again when a distinct offence under Section 302 IPC is made
out, charge should have been framed and read out to the
accused appellant [refer Section 216 Cr.P.C.] to avoid
prejudice and in that case the circumstances brought in
evidence should be put to accused in his examination under
Section 313 of the Cr.P.C. which has not been done causing
serious prejudice in defence. In any event Mr. Verma
contended that the evidence on record does not justify such
a conversion of charge There is therefore neither any
legal nor even any evidentiary support to such a conversion.
The High Court in introducing Section 302 in place of
Section 304B, it has been submitted not only committed a
grave error of law but proceeded totally against even the
entire tenor of the evidence on record. Criminal
jurisprudence does not warrant such a conversion on facts of
the matter under consideration.
Turning attention on to the dying declaration be it
noticed at this juncture that the deceased was supposed to
have spoken to the mother that there was a conjoint effort
of all the accused to pour kerosene on all her body and lit
the fire The burn injury resulting therefrom has caused
her life to death. Prosecution thus treated the same as a
dying declaration.
Though the earlier view of this Court in Ramnaths case
[Ram Nath Madhoprasad & Ors. v. State of Madhya Pradesh:
AIR 1953 SC 420] stands overruled by a five-Judges judgment
in the case of Tarachand Damu Sutar v. State of Maharashtra
[AIR 1962 SC 130] but there is no denial of the fact that
dying declaration ought to be treated with care and caution
since the maker of the statement cannot be subjected to any
cross-examination. The same is the view taken in a case
reported in AIR 1976 SC 2199 [Munnu Raja and Another v.
State of Madhya Pradesh] wherein this Court stated:
It is well settled that though a dying declaration must
be approached with caution for the reason that the maker of
the statement cannot be subjected to cross-examination,
there is neither a rule of law nor a rule of prudence which
has hardened into a rule of law that a dying declaration
cannot be acted upon unless it is corroborated. Thus Court
must not look out for corroboration unless it comes to the
conclusion that the dying declaration suffered from any
infirmity by reason of which it was necessary to look out
for corroboration.
In the same year this Court in the case of K.
Ramachandra Reddy & Anr. V. The Public Prosecutor [AIR
1976 SC 1994] observed:
The dying declaration is undoubtedly admissible under
Section 32 and not being a statement on oath so that its
truth could be tested by cross- examination, the Courts have
to apply the strictest scrutiny and the closest
circumspection to the statement before acting upon it.
While great solemnity and sanctity is attached to the words
of a dying man 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, yet the Court has to be on guard against
the statement of the deceased being a result of either
tutoring prompting or a product of his imagination. The
Court must be satisfied that the deceased was in a fit state
of mind to make the statement after the deceased had a clear
opportunity to observe and identify his assailants and that
he was making the statement without any influence or
rancour. Once the Court is satisfied that the dying
declaration is true and voluntary it can be sufficient to
found the conviction even without any further corroboration.
A dying declaration which has been recorded by a
competent Magistrate in the proper manner, that is to say,
in the form of question and answer and, as far as
practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from all
the infirmities of human memory and human character. In
order to test the reliability of a dying declaration, the
Court has to keep in view the circumstances like the
opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was
committed at night; whether the capacity of the man to
remember the facts stated had not been impaired at the time
he was making the statement, by circumstances beyond his
control; the statement has been consistent throughout if he
had several opportunities of making a dying declaration
apart from the official record of it; and the statement had
been made at the earliest opportunity and was not the result
of tutoring by interested parties AIR 1958 SC 22: Rel. on.
Be it noted that the dying declaration herein has not
been effected before any Doctor or any independent witness
but to the mother who is said to have arrived at the place
only in the morning the mother admittedly is an interested
witness: though that by itself would not discredit the
evidence tendered in Court but the fact remains the Doctors
evidence considering the nature of the burn posed a
considerable doubt as to whether such a statement could be
made half an hour before the death of the accused. It is
not that the statement of the unfortunate girl was otherwise
not clear or there was existing some doubt as to the exact
words on the contrary the definite evidence tendered is that
there is clear unequivocal statement from the daughter of
the family that the conjoint efforts of putting kerosene
thereafter with lighted match stick has resulted the burn
injury. The severity of the burn injury and its impact on
the body speaks volume by reason of the death of the
deceased. It is the reliance on such a dying declaration by
the High Court shall thus have to be scrutinised with
certain degree of caution.
Dying declaration in the instant matter thus we must
confess raised certain amount of eyebrows and Mr. Verma
also with his usual eloquence did put a strong protest in
regard thereto. The evidence of this declaration depicts
that just before a few minutes of her death, the deceased
would make a declaration quietly to the mother naming
therein all the three relations along with the husband who
poured kerosene to burn her alive. This is not acceptable,
more so having regard to the declaration being made to the
mother only. In any event, is it conceivable that the
husband along with the father-in-law, mother-in-law,
brother-in-law would start pouring kerosene together on to
the girl as if each was prepared with a can of kerosene to
pour simultaneously This not only would lead to an
absurdity but reliance on such a vague statement would be
opposed to the basic tenets of law. Further it is in
evidence that the deceased had an extensive burn including
her mouth, nose and lips if any credence is to be allowed
to the same, then and in that event, the evidence of the
mother about the confession stands belied by itself.
Significantly, the doctors evidence as is available on
record would also go a long way in the unacceptability of
the evidence of the mother as regards confession. In no
uncertain terms the doctor, P.W.8 stated that the death may
take place at once and within ten seconds by reason of the
extensive nature of the burn and the deceased cannot have
survived beyond 10 minutes. Another redeeming feature that
the declaration of the deceased was made only to the mother
but before the arrival of the mother, the incident was made
known to the Police authorities and, in fact, the Police was
present when the mother and the brother arrived. It is
highly unlikely that the Police will not make any attempt to
have a statement by the deceased but if it was otherwise
possible immediately on its arrival rather than wait for the
mother to arrive. Two recent decisions of this Court may be
of some assistance the first in point of time is the
decision of a three judge Bench of this Court in the case of
Paparambaka Rosamma and Others v. State of A.P. (1999 (7)
SCC 695) wherein this Court in no uncertain terms observed
that there ought not to be any hesitancy in the mind of the
Court in regard to the truthfulness and voluntary nature of
disclosure of the incident. In Rosammas case one Dr. K.
Vishnupriya Devi has stated in the Court that the injured
was conscious but she has not deposed that the injured was
in a fit state of mind to make a statement. It did come on
record that the girl has sustained 90% burn injuries and it
is in that perspective, this Court held that in the absence
of a medical certification that the injured was in a fit
state of mind at the time of making the declaration, it
would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that the injured was
in a fit state of mind at the time of making a declaration
the medical certification, therefore, was felt to be a
primary element in the matter of dying declaration
unfortunately we do not have any certification of whatsoever
nature, it is only the uncorroborated testimony of the
mother to whom the deceased was supposed to have made the
declaration as noticed above. In paragraph 9 of the Report
in Rosammas case (supra) however, this Court had the
following to state:
9. It is true that the medical officer Dr.
K.Vishnupriya Devi (PW 10) at the end of the dying
declaration had certified patient is conscious while
recording the statement. It has come on record that the
injured Smt. Venkata Ramana had sustained extensive burn
injuries on her person. Dr. P. Koteswara Rao (PW 9) who
performed the post-mortem stated that the injured had
sustained 90% burn injuries. In this case as stated
earlier, the prosecution case solely rested on the dying
declaration. It was, therefore, necessary for the
prosecution to prove the dying declaration as being genuine,
true and free from all doubts and it was recorded when the
injured was in a fit state of mind. In our opinion, the
certificate appended to the dying declaration at the end by
Dr. Smt. K. Vishnupriya Devi (PW 10) did not comply with
the requirement in as much as she has failed to certify that
the injured was in a fit state of mind at the time of
recording the dying declaration. The certificate of the
said expert at the end only says that patient is conscious
while recording the statement. In view of these material
omissions, it would not be safe to accept the dying
declaration (Ex.P-14) as true and genuine and as made when
the injured was in a fit state of mind. From the judgments
of the courts below, it appears that this aspect was not
kept in mind and resultantly they erred in accepting the
said dying declaration (Ex.P-14) as true, genuine and as
made when the injured was in a fit state of mind. In
medical science two stages namely conscious and a fit state
of mind are distinct and are not synonymous. One may be
conscious but not necessarily in a fit state of mind. This
distinction was overlooked by the courts below.
In the similar vein, another three judge Bench of this
Court in Koli Chunilal Savji and another v. State of
Gujarat (1999 (9) SCC 562) observed that in the absence of
the Doctor while recording a dying declaration, the same
loses its value and cannot be accepted. In paragraphs 6 and
7 of the Report, this Court observed:
6. In view of the rival submissions made at the Bar,
two questions really arise for our consideration:
(1) Whether the two dying declarations can be held to be
true and voluntary and can be relied upon or can be excluded
from consideration for the infirmities pointed out by Mr.
Keswani, appearing for the appellants.
(2) Whether the High Court exceeded its jurisdiction in
interfering with the order of acquittal, recorded by the
learned Sessions Judge.
7. Coming to the first question, the answer to the same
would depend upon the correctness of the submission of Mr.
Keswani, that in the absence of the doctor while recording
the dying declaration, the said declaration loses its value
and cannot be accepted. Mr. Keswani in this connection
relies upon the decision of this Court in the case of
Maniram v. State of M.P. (1994 Supp (2) SCC 539). In the
aforesaid case, no doubt this Court has held that when the
declarant was in the hospital itself, it was the duty of the
person who recorded the dying declaration to do so in the
presence of the doctor and after being duly certified by the
doctor that the declarant was conscious and in his senses
and was in a fit condition to make the declaration. In the
said case the Court also thought it unsafe to rely upon the
dying declaration on account of the aforesaid infirmity and
interfered with the judgment of the High Court. But the
aforesaid requirements are a mere rule of prudence and the
ultimate test is whether the dying declaration can be held
to be a truthful one and voluntarily given. It is no doubt
true that before recording the declaration, the officer
concerned must find that the declarant was in a fit
condition to make the statement in question. In Ravi
Chander v. State of Punjab (1998 (9) SCC 303) this Court
has held that for not examining the doctor, the dying
declaration recorded by the Executive Magistrate and the
dying declaration orally made need not be doubted. The
Court further observed that that the Executive Magistrate is
a disinterested witness and is a responsible officer and
there is no circumstance or material on record to suspect
that the Executive Magistrate had any animus against the
accused or was in any way interested in fabricating the
dying declaration and, therefore, the question of
genuineness of the dying declaration recorded by the
Executive Magistrate to be doubted does not arise. In the
case of Harjit Kaur v. State of Punjab (1999 (6) SCC 545)
this Court has examined the same question and held:
(SCC p.547, para 5)
As regards the condition of Parminder Kaur, the witness
has stated that he had first ascertained from the doctor
whether she was in a fit condition to make a statement and
obtained an endorsement to that effect. Merely because that
endorsement was made not on the dying declaration itself but
on the application, that would not render the dying
declartion suspicious in any manner.
Dying declarations shall have to be dealt with care and
caution and corroboration thereof though not essential as
such, but is otherwise expedient to have the same in order
to strengthen the evidentiary value of the declaration.
Independent witnesses may not be available but there should
be proper care and caution in the matter of acceptance of
such a statement as trustworthy evidence. In our view
question of the dying declaration to the mother is not worth
acceptance and the High Court thus clearly fell into an
error in such an acceptance. Significantly, the High Court
has set aside the conviction and sentence under Section 304
B read with Section 34 and 120 B of the Indian Penal Code so
far as the father-in-law, the mother-in-law and the
brother-in-law are concerned though maintained the
conviction under 498A. So far as the husband is concerned
the High Court converted the charge from 304 B to 302 on the
ground that the only motive of the murder could be
attributed to the husband who must be interested in
committing such offence so that he can perform another
marriage This is rather a far-fetched assumption without
any cogent evidence available on record. Needless to record
here that excepting one of the very keenly interested
witness, the episode of the applicant being married again
does not come from any other witness and the factum of
marriage also though stated but devoid of any particulars
even as regards the name, the date of marriage etc. It is
on record that on arrival of the mother and the brother of
the deceased, they found an assembly of large number of
mahalla people but none of them were called to even have a
corroboration to this part of the evidence of the accused
marrying after the death of the deceased: No independent
witness was thought of, though the factum of marriage could
have been corroborated by an outside agency. The FIR and
the other oral evidence available if read together and full
credence is attributed to the same but that itself does not
and cannot permit the High Court to come to such an
assumption. The assumption is faulty and is wholly devoid
of any substance. As a matter of fact no special role was
even ascribed to the appellant herein for apart leading any
evidence thereon. Presumptions and assumptions are not
available in criminal jurisprudence and on the wake of the
aforesaid we are unable to lend concurrence to the
assumptions of the High Court as recorded herein before in
this judgment. Significantly, even the dying declaration
whatever it is worth, has implicated all the four accused in
the manner similar. There is no additional piece of
evidence implicating the husband which would permit the High
Court to convert the charge of 304 B to 302 True
punishment of life imprisonment is available under 304 B but
that is the maximum available under the Section and for
Section 302 the same is the minimum available under the
Section. Though discretion to a further award minimum
cannot be taken away from the Court. Section 302 is a much
more heinous offence and unfortunately there is no evidence
of such heinous activities attributable to the husband. The
factum of the husband, if interested in committing such
offence so that he can perform another marriage has not been
put to the witnesses and in the absence of which, assumption
to that effect, cannot be said to be an acceptable
assumption since without any evidentiary support. The
assumption by itself in our view is untenable.
Mr. H.L. Agrawal, learned senior Advocate , however,
emphatically contended that considering the hour of the day
and the factum of the wife being burnt and no other
explanation coming forth, question of the husband escaping
the liability of murder does not and cannot arise. We are
however unable to lend our concurrence to the aforesaid.
While it is true that husband being the companion in the
bedroom ought to be able to explain as to the circumstances
but there exist an obligation on the part of the prosecution
to prove the guilt of the accused beyond all reasonable
doubt. Criminal jurisprudential system of the country has
been to that effect and there is neither any departure nor
any escape therefrom.
The defence story of early morning/burst by reason of
warming up of milk from the kitchen has not been accepted as
true and plausible explanation for the injury by either of
the courts but does that mean and imply that necessarily
therefore the husband was guilty of murder The answer
cannot be in the affirmative. As the experience goes this
unfortunate trend has turned out to be a growing menace in
the society and does not warrant any sympathy whatsoever but
that does not however mean non adherence to even the basics
of the law. When the parents arrived the girl was lying on
the bed and without there being any evidence as the state of
the linen, the cot and the surroundings. Is this an
omission without having any impact on the entire prosecution
case?
Let us, however, scrutinise the evidence in little more
greater detail: the mother was informed about the
daughters burn injury at night the parents arrived in the
morning finds the daughter in the bed room with excessive
burn injuries without however any mention of the impact on
the surroundings the deceased supposed to have made a
statement to the mother that the in-laws and the husband on
a conjoint move poured kerosene on to her and threw a
lighted match stick so as to cause burn injuries last of
the evidence is that the deceased immediately after such
communication passed away without any medical assistance
would this evidence be sufficient to prove the charges even
under Section 304B and 498A for apart the conversion thereof
to 302 by the High Court? We are afraid the evidence is not
sufficient enough to reach an irresistible conclusion of the
involvement of the husband as the murderer or even being
charged with an offence under Section 304B IPC.
We do feel it expedient to record that the conviction
and sentence as imposed against the husband-appellant cannot
be sustained. The sentence of imprisonment for life thus
under Section 302 stands set aside. There is no evidence,
convincing, so as to even render the accused appellant
suffer such a conviction. There is no challenge by the
State as against the order of acquittal of other three
accused persons under Section 304B as such we are not
inclined to delve into the matter as regards the involvement
of the other three persons but the appellants explanation
of stove- burst being the cause of the event cannot be
brushed aside. It is undoubtedly a social and heinous crime
to have the wife burnt to death but without any proper and
reliable evidence, the law court can not by itself also
justify its conclusion in the matter of involvement of the
husband: Direct evidence may not be available but
circumstantial evidence with reasonable probity and without
a snap in the chain of events would certainly tantamount to
a definite evidence about the involvement but not otherwise.
What is the evidence available in the matter To put it
shortly, there is none! The factum of burn injury cannot be
doubted and the subsequent unfortunate death but that is
about all. Why was the Investigating officer not examined
No answers are forthcoming even at this stage but why not?
Is it a lacuna? We need not dilate thereon but the fact
remains there is not a whisper in regard thereto! Coming
back to Section 498A the requirement of the statute is acts
of cruelty by the husband of a woman or any relative of the
husband. The word cruelty in common English acceptation
denotes a state of conduct which is painful and distressing
to another. The legislative intent thus is clear enough to
indicate that in the event of there being a state of conduct
by the husband to the wife or by any relative of the husband
which can be attributed to be painful or distressing. The
same would be within the meaning of the Section. In the
instant case there is no evidence whatsoever. It is on this
score Mr. Verma contended that there is no sufficient
evidence for even the dowry demand far less the evidence of
cruelty available on record. No outside person has been
called to give evidence and even the witnesses being in the
category of interested witnesses also restricted their
version to sufferings of burn injury and the purported dying
declarations to the matter as noticed herein before apart
therefrom nothing more is available on record to attribute
any act or acts on the part of the husband or on the part of
husbands relatives is that evidence sufficient to bring
home the charge under Section 498A? The answer obviously
cannot be in the affirmative having regard to the
non-availability of any evidence in the matter.
Significantly however, upon recording of the fact of no
dowry demand prior to the date of occurrence the High Court
thought it fit to record that charge under Section 498A
stands proved and as such passed the sentence. We are
however unable to record our concurrence therewith – torture
is a question of fact there must be proper effort to prove
that aspect of the matter, but unfortunately not even an
attempt has been made nor any evidence tendered to suggest
the same excepting the bold interpolated allegations which
stand disbelieved and ignored by the High Court, and in our
view rightly.
On the wake of the aforesaid, charge under Section 498A
also cannot be sustained! Both the learned Trial Judge and
the High Court are clearly wrong in not considering this
aspect of the matter and thus fell into a serious and clear
error. In that view of the matter the conviction and
sentence stand set aside. The appeal stands allowed
accordingly. The appellant is acquitted. The appellant be
set at liberty forthwith unless required in any other case.