U.P. Vs. Santosh Kumar & Ors.  INSC 1532 (3 September 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1199
OF 2001 State of U.P. .. Appellant Versus Santosh Kumar .. Respondent
This appeal is directed against the judgment of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow dated 2.3.2000 passed in
Criminal Appeal No. 281 of 1993.
The respondent and other accused were charged under sections
302/34, 304-B and 498-A of the Indian Penal Code, 1860 (for short, `IPC') and
sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short, `the Dowry
Act') read with section 34 of the IPC.
The IInd Additional Sessions Judge, Unnao, in Sessions Trial No.
483 of 1992, convicted respondent Santosh Kumar under sections 302 and 498-A
and sections 3 & 4 of the Dowry Act. He was however acquitted under section
304-B IPC. The IInd Additional Sessions Judge convicted respondents Shiv Pyari
and Prem Narain under sections 498-A IPC and sections 3 and 4 of the Dowry Act.
They were however acquitted under sections 302/34 and 304-IPC.
The High Court allowed the appeal filed by the accused and set
aside the conviction and sentence of the accused respondents imposed by the
trial court for the offences for which they were held guilty and convicted.
The appellant State of U.P. aggrieved by the impugned judgment has
filed this appeal under Article 136 of the Constitution.
The State of U.P. has filed this appeal against accused Shiv
Pyari, Prem Narain and Santosh Kumar. The other accused Shiv Pyari wife of Deo
Krishan and Prem Narain s/o Guru Deen have expired during the pendency of the
appeal, 2 therefore, the appeal filed by the State of U.P. against them has
In this appeal, we are concerned with the only surviving accused
respondent Santosh Kumar. Brief facts of the case in nutshell are as under.
Deceased Sunita, daughter of Dhani Ram was married to Ram Chandra
on 1.5.1987. At the time of marriage, Dhani Ram gave dowry to his daughter
beyond his capacity, but unfortunately her in-laws were not satisfied and they
harassed her by regularly demanding dowry in the form of articles and money.
Sunita told her parents repeatedly about the demands of dowry. Her father Dhani
Ram met Prem Narain and Shiv Pyari and assured them that apart from whatever he
had already given in dowry he would continue giving them throughout his life,
but they should not harass his daughter.
According to the prosecution, on 15.3.1992 at about 9.00 a.m.,
Sunita was beaten by Shiv Piyari, Santosh Kumar and Prem Narain on account of
demand of dowry. Deceased Sunita told them that there was no use of harassing
her every day for 3 dowry and that it would be better if she was finished once
for all. Prem Narain exhorted at Santosh Kumar saying that, "DAAL DO MITTI
KA TAIL JALA DO SALI KO AUR JO 10-20 HAZAR LAGENGE HUM LAGA DENGE" -
meaning thereby to pour kerosene oil and kill her and we would take care of
litigation expenses of ten to twenty thousand to save Santosh Kumar.
Immediately thereafter, Santosh Kumar brought a container of kerosene oil and
poured the same on Sunita and lit fire and burnt her alive. Deceased Sunita
immediately after the burning episode cried for help and ultimately jumped into
a small water pond to save her life.
On hearing the hue and cry, Om Prakash, Chotey Yadav and Santosh
son of Jagdish arrived there and took her out from the pond. She was alive at
that time. Dhani Ram, father of the deceased, on hearing about the incident
came to his daughter's house. The investigating officer also reached the spot
and seized the container of kerosene oil, the piece of burnt dhoti and pieces
of broken bangles. He took the same into custody in the presence of witnesses.
After completing the necessary formalities of the investigation, a charge-sheet
was 4 filed against the accused persons under sections 302/34, 304B and 498A of
the IPC and sections 3 and 4 of the Dowry Act.
The prosecution examined 13 witnesses to prove its case.
PWs 3 and
4, who alleged to have seen the occurrence, did not support the prosecution
case, except the version that the deceased Sunita had jumped into a water pond
and she was taken out from that pond and at that time accused persons and the
family members of Dhani Ram were present there.
According to the prosecution, the death of deceased Sunita was
caused by accused Santosh Kumar in furtherance of the common intention of all
the accused on account of demand of dowry, while the defence version as set up
by the respondents was a case of accidental fire. According to the defence
version, the deceased Sunita was cooking and accidentally caught fire and died
because of burn injuries.
The trial court came to a definite finding that it was a clear
case of murder and not a case of accidental fire.
to the trial court, Dhani Ram PW1, father of the deceased, on receiving the
information about burning of his 5 daughter reached at the place of occurrence.
Deceased Sunita categorically told him that accused Santosh Kumar poured
kerosene oil and set her on fire. She also stated that before setting her on
fire, accused Santosh Kumar and others had beaten her. She further stated that
accused Prem Narain told, "Pour kerosene oil and set her on fire. I will
spend Rupees 10 to 20 thousand required for litigation to defend you (Santosh).
construed to be the first dying declaration according to the prosecution.
The second dying declaration is Ext.Ka.16 which was recorded under
section 161 of the Code of Criminal Procedure (for short, the Cr.P.C.) in the
case diary by the Investigating Officer Shiv Kumar Tyagi PW8. In this dying
declaration, it is stated that a day before the occurrence at about 9 a.m. she
had a quarrel with her mother-in-law because she had refused to give Rs.20/-
demanded by her. That, after some time her husbandís younger brother, Santosh
Kumar, came from outside and asked her as to what she had been doing in Bombay,
then she replied that he could very well inquire from Bombay itself.
Immediately thereafter he started hitting her by kicks, fists and blows. At
that time, Sunita told him that he 6 could finish her forever instead of
killing her slowly. Accused Santosh Kumar immediately thereafter brought kerosene
oil in a container and threw it on her body and set her on fire.
rushed towards her mother-in-law Shiv Pyari but she did not save her and,
therefore, she rushed towards the water pond and jumped into it. The villagers
tried to save her by bringing her out of the pond.
The third dying declaration is what was stated by deceased Sunita
to the Tehsildar/Magistrate Rajesh Kumar Shrivastava, PW13. The Tehsildar/
Magistrate was summoned to record her dying declaration. Dr. S.N.H. Rizvi of
the District Hospital, Unnao gave certificate that he had examined deceased
Sunita and she was in her full senses and her statement could be recorded and
only thereafter her statement was recorded by the Tehsildar. The said Tehsildar
clearly stated that she was in a fit condition to give her statement.
Sunita stated to the Tehsildar/Magistrate that she demanded Rs.20/- from her
mother-in-law who refused to give her Rs.20/-. Thereafter, her brother-in-law
Santosh Kumar came from the outside and asked her, "What were you doing in
Bombay". She replied, "Go to Bombay and get the matter 7 inquired
into". On getting this reply from the deceased, Santosh Kumar started
beating her and her father-in-law also abused her. On exhortation of Prem
Narain, Santosh Kumar brought a container of kerosene oil and poured the same
on her whole body and set her on fire. In that statement, she has also stated
that she had no dispute with her husband and Ram Kishore, another brother of
her husband. She stated that her mother-in-law Shiv Pyari, uncle-in-law Prem
Narain, brother-in-law (Devar) Santosh Kumar and elder brother-in- law (Jeth)
Arjun Prasad had been harassing her from the very beginning. She also stated
that her brothers-in-law Santosh Kumar and Arjun Prasad always used to tell
her, "Bring `Roti' (Bread) from your father".
Om Prakash PW2, Chotey Yadav PW3 and Santosh PW4 did not support
the prosecution case, the prosecution case hinges on the statements made by
Dhani Ram PW1, Inspector S.K. Tyagi PW8 and the Tehsildar/Magistrate Rajesh
Kumar Srivastava PW13.
The trial court carefully marshalled and analyzed the entire
evidence on record. On the basis of the three dying 8 declarations, the trial
court found the accused Santosh Kumar guilty of killing Sunita by pouring
kerosene oil and setting her on fire. The Tehsildar/Magistrate PW13
categorically stated that deceased Sunita was in her full senses throughout the
recording of her dying declaration.
The trial court after analyzing the entire evidence, while
acquitting respondent Santosh Kumar under section 304-B IPC, convicted him
under sections 302 and 498-A IPC and under sections 3 and 4 of the Dowry Act.
Respondents Shiv Pyari and Prem Narain were convicted by the trial court only
under section 498-A IPC and sections 3 and 4 of the Dowry Act.
The High Court in the impugned judgment observed that when the
State has not filed any appeal against the order of acquittal under section
304-B IPC, the order of acquittal for the charge of offence punishable under
section 304-B IPC has become final. The respondents preferred appeal against
conviction under sections 302 and 498-A IPC and sections 3 and 4 of the Dowry
Act by the trial court.
The High Court while acquitting the respondents herein under all
the charges observed as under:
the charge under section 304-B I.P.C. was held to have failed, then there was
no logic in convicting the appellants for offences punishable under sections 3
and 4 of the Dowry Prohibition Act as well as under section 498-A I.P.C. The
trial Court ought to have acquitted all the appellants for offences punishable
under section 498-A IPC and 3 and 4 of the Dowry Prohibition Act."
This finding of the High Court is palpably wrong and
unsustainable. The ingredients of sections 498-A IPC and sections 3 and 4 of
the Dowry Act are different from the ingredients of section 304-B IPC. This
erroneous understanding of law has led to entirely erroneous and unsustainable
findings by the High Court. The High Court was entitled to re-appreciate the
entire evidence in appeal, but in doing so the High Court could not ignore the
vital features of the prosecution evidence. The High Court has given no reasons
for setting aside a well reasoned judgment of the trial court and acquitted the
accused under section 302 IPC. In this appeal, we are called upon to primarily
decide about the legality of acquittal of the respondent under section 302 IPC.
The entire prosecution case hinges on the three dying declarations
made by the deceased. On careful analysis of these dying declarations, it leads
to only one conclusion that respondent Santosh Kumar after beating deceased
Sunita poured kerosene oil on her and set her on fire and that she died because
of burn injuries sustained by her. The High Court unnecessarily gave undue
importance to the minor contradictions in the testimony of witnesses and dying
The High Court ought to have examined this case in the proper
perspective. The doctor also certified that the deceased was in a fit mental
condition to give statement. The Tehsildar/Magistrate PW13 also stated the same
in his statement.
The basic consistency between the three dying declarations given
to Dhani Ram PW1, the Investigating Officer PW8 and the Tehsildar/Magistrate
PW13 is that the accused Santosh Kumar brought kerosene oil, poured the same on
the deceased and set her on fire and she died because of the burn injury. It is
the real genesis of all the three dying declarations.
must be properly appreciated that the deceased Sunita gave these dying declarations
in a state when she was having acute pain and minor inconsistencies in one
dying declaration with another should not render the dying declarations void.
Dying declarations must be construed in proper perspective.
The veracity of the dying declarations is proved beyond any shadow
of doubt because the deceased specifically did not level any allegation against
her husband and her other brother-in-law Ram Kishore. If she wanted to
implicate other members of the family, she could have also named her brother-
in-law Ram Kishore and husband Ram Chandra. But she specifically attributed the
act of bringing and pouring kerosene oil on her and setting her on fire only by
respondent Santosh Kumar. The High Court ought to have appreciated this fact in
proper perspective as to why the dying person in all her three dying
declarations named only Santosh Kumar and attributed act of pouring kerosene
oil and setting her on fire to him alone when there were so many members in the
The statement of the deceased made to the Tehsildar/Magistrate
PW13 cannot be brushed aside. He was 12 totally an independent witness and
there was no reason for him to cook up any false story.
Similarly, the statement Ext.Ka.16 made to the Investigating
Officer also seems to be correct, consistent and corroborated by the other two
statements made before the Tehsildar/Magistrate PW13 and Dhani Ram PW1. The
High Court gravely erred in setting aside a well reasoned judgment of the trial
court and coming to the different findings which are totally unsustainable on
proper analysis of the entire record.
In any criminal case where statements are recorded after a
considerable lapse of time, some inconsistencies are bound to occur. But it is
the duty of the court to ensure that the truth prevails. If on material
particulars, the statements of prosecution witnesses are consistent, then they
cannot be discarded only because of minor inconsistencies. While appreciating
the evidence, the courts must also consider the fact carefully as to why would
the father of the deceased falsely implicate only one of the members of the
family and let go the real culprit? At that juncture, usual anxiety is to
ensure that the real assailant must be punished.
The court in this case ought to have considered what was the
interest of the Tehsildar/Magistrate to have wrongly recorded the statement of
the deceased. Similarly, when the statement Ext. Ka 16 recorded by the
Investigating Officer gets full corroboration from the other two dying declarations,
there is no justification in discarding the testimony of the investigating
We have carefully examined all the three dying declarations. The
guilt of the accused Santosh Kumar of committing murder of the deceased Sunita
is fully and clearly made out. In our considered opinion, no other view is
possible in the light of the three dying declarations. The High Court
erroneously set aside a well reasoned judgment of the trial court and acquitted
the respondent and other accused. The High Court's finding that when the charge
under section 304-B IPC could not be proved, then conviction under section
498-A IPC and sections 3 and 4 of the Dowry Act also cannot be sustained. This
approach of the High Court is wholly erroneous and unsustainable.
In order to correctly appreciate the legal position, it is
necessary to examine ingredients of these sections. Section 304-B IPC reads as
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
On analysis of the section, the following essential ingredients of
section 304-B IPC emerge and they are set out as under:
(i) That the accused caused death of a woman;
the accused was husband, or any relative of the husband of that woman;
death of such woman, (a) was caused by any burns, or bodily injury, or (b)
occurred otherwise than under normal circumstances;
death was caused within seven years of the marriage of that woman;
soon before her death such woman was subjected to cruelty, or harassment;
accused had subjected such woman to such cruelty or harassment for, or in
connection with any demand for dowry."
Section 498-B IPC reads as follows:
Husband or relative of husband of a woman subjecting her to cruelty.- Whoever,
being the husband or the relative of the husband of a woman subjects such woman
to cruelty, shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine."
The following are the essential ingredients of Section 498- A IPC:
(i) That there was a married woman;
such woman was subjected to cruelty;
that such cruelty consisted of any willful conduct of such nature as was likely
to drive such woman - to commit suicide, or to cause grave injury or danger to
her life, limb or health, whether mental or physical;
of such woman where such harassment was - with a view to coercing such woman or
any person related to her to meet any unlawful demand for any property or
valuable security, or on account of failure by such woman, or any person
related to her to meet the unlawful demand in able and the woman was subjected
to such cruelty by - the 16 husband of that woman; or any relative of the
husband of that woman."
The High Court gravely erred in coming to the finding that once
the charge under section 304-B IPC could not be proved, then conviction under
section 498-A IPC and sections 3 and 4 of the Dowry Act also cannot be
recorded. In State of Karnataka v. Balappa 1999 Cri LJ 3064 (Kant), at pages
3068, 3069 and 3070, the court has dealt with in great detail that even if the
charge under section 304-B IPC is not made out, the conviction under section
498-A IPC can be recorded.
304-B and 498-A IPC are both distinct and separate offences. The `cruelty' is a
common essential ingredient of both the offences. Under section 304-B, it is
the `dowry death' that is punishable and such death should have occurred within
seven years of the marriage. In the statute, no such period is mentioned in
section 498-A IPC. The husband or his relative would be liable for subjecting
the woman to `cruelty' any time after the marriage.
The legal position is absolutely clear that a person charged and
acquitted under section 304-B can be convicted under section 498-A IPC. This
court in Smt. Shanti & 17 Another v. State of Haryana (1991) 1 SCC 371 has
taken the same view.
The demand of dowry is an essential ingredient to attract section
304-B IPC, whereas under section 498-A IPC the demand of dowry is not the basic
ingredient of the offence.
even if there is acquittal under section 304-B IPC, still conviction under
section 498A can be recorded under the law.
Sections 3 and 4 of the Dowry Act read as under:
Penalty for giving or taking dowry - (1) If any person, after the commencement
of this Act, gives or takes or abets the giving or taking of dowry, he shall be
punishable with imprisonment for a term which shall not be less than five
years, and with fine which shall not be less than fifteen thousand rupees or
the amount of the value of such dowry, whichever is more:
that the Court may, for adequate and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a term of less than five years.
Nothing in sub-section (1) shall apply to, or in relation to,- (a) presents
which are given at the time of a marriage to the bride (without any demand
having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with
the rules made under this Act;
presents which are given at the time of a marriage to the bridegroom (without
any demand having been made in that behalf):
that such presents are entered in a list maintained in accordance with the
rules made under this Act:
further that where such presents are made by or on behalf of (he bride or any
person related to the bride, such presents arc of a customary nature and the
value thereof is not excessive having regard to the financial status of the
person by whom, or on whose behalf, such presents are given."
Penalty for demanding dowry.- If any person demands, directly or indirectly,
from the parents or other relatives or guardian of a bride or bridegroom, as
the case may be, any dowry, he shall be punishable with imprisonment for a term
which shall not be less than six months, but which may extend to two years and
with fine which may extend to ten thousand rupees:
that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six
Section 3 of the Dowry Act deals with penalty for giving and
taking of dowry. The scope and ambit of section 3 is different from the scope
and ambit of section 304-B IPC.
Section 4 of the Dowry Act deals with penalty for demanding dowry,
directly or indirectly, from the parents or other relatives or guardian of a
bride or bridegroom, as the case may be. The object of section 4 is to
discourage the very demand for property or valuable security as consideration
for a marriage between the parties thereto. Section 4 prohibits the demand for
`giving' property or valuable security which demand, if satisfied, would
constitute an offence under section 3 read with section 2 of the Act.
Thus, the ambit and scope of sections 3 and 4 of the Dowry Act is
different from the ambit and scope of section 498- A IPC.
The incorrect understanding of law has led to the erroneous
judgment consequently leading to grave miscarriage of justice.
As far as conviction of respondent Santosh Kumar under section 302
IPC is concerned, there is no discussion in the impugned judgment of the High
Court. The High Court failed to find any infirmity in the judgment of the trial
court which persuaded the High Court to set aside the trial court judgment.
All three dying declarations made by the deceased are totally
consistent and lead to only one conclusion that the respondent Santosh Kumar
had poured kerosene oil on the deceased and lit the fire. The fact is clearly
corroborated from the testimonies of Dhani Ram PW1, the Investigating Officer
Shiv Kumar Tyagi PW8 and the Tehsildar/Magistrate Rajesh Kumar Shrivastava
PW13. The respondent is clearly guilty of offence under section 302 IPC.
The High Court without assigning any cogent reason set aside a
well reasoned judgment of the trial court and acquitted the respondent under
section 302 IPC. The impugned judgment of the High Court cannot be sustained.
This Court has always been slow in reversing the order of
acquittal, particularly in a case where the other view is possible or
plausible. We are fully conscious of our bounden obligation and duty that we
are dealing with appeal against acquittal by the High Court. Unfortunately, in
the instant case, on proper analysis of all three dying declarations, no other
view is possible and the view taken by the High Court is perverse and
unsustainable in law.
Consequently, this appeal is allowed. The impugned judgment of the
High Court is set aside and that of the trial court is restored as far as the
sentence of the respondent under section 302 IPC is concerned. The accused
Santosh Kumar is directed to surrender in order to serve out the remaining
This appeal is accordingly disposed of.
.................................J. (Dalveer Bhandari)
.................................J. (Harjit Singh Bedi)