HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 2995 of 2012 Appellant :- Smt. Beila Devi & Another Respondent :- State Of U.P. Counsel for Appellant :- R.B. Singh,Ranjit Saxena Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgement and order dated 27.7.2012 passed by Additional Sessions Judge, Court No. 14, Varanasi in S.T. No. 155 of 2007 (State Vs. Beila Devi and others) arising out of Crime No. 276 of 2006, under Section 498A, 304B I.P.C. and Section 4 Dowry Prohibition Act, Police Station-Chaubepur, District-Varanasi, whereby the accused-appellants Kanhaiya, Sri Ram and Kamla Devi were not found guilty and were acquitted against all the charges, whereas the accused-appellant Beila Devi and Jiya Lal were found guilty under Sections 498A, 304B and Section 4 of Dowry Prohibition Act and each was convicted and sentenced to 3 years of rigorous imprisonment with fine of Rs. 1,000/- under Section 498A, under Section 304BI.P.C., each was sentenced to 10 years rigorous imprisonment and under Section 4 of Dowry Prohibition Act each was sentenced to one year rigorous imprisonment and Rs. 1,000/- fine with default stipulation.
2. Filtering out unnecessary details the prosecution story as per the prosecution version is that Badri father of the deceased filed a written report on 6.7.2006 before the Station Officer, Varanasi alleging that his daughter Sonu was married four years prior to the lodging of the F.I.R. to Sant Raj. Sufficient dowry was given in the marriage, but after marriage the deceased was being tortured and ill treated due to demand of a two wheeler and a gold chain. There were differences between the deceased and her family members on this issue. When the informant used to go to meet his daughter, she used to weep and complain about this matter to her father. The informant consoled his daughter and also talked to her family members and told them that he did not have the financial capacity to give anything more as Dowry. On 6.7.2006 at 6:00 a.m. a man came on a motorcycle and stated that his daughter was burnt and as admitted in the Hospital opposite Chirai Gaon Block. On hearing this, the informant and his family members rushed to the Chirai Gaon Hospital. The Doctor stated that the injured was serious, hence she should be taken to Kabir Chaura Hospital. At the hospital, the deceased told the informant that she had slept in her house after taking meals, suddenly her mother-in-law Beila, brother-in-laws (Jeth) Jiya Lal and Kanhaiya, Sri Ram and Kamla Devi sprinkled kerosene oil on her and set her ablaze. Hence, report was lodged.
3. On the basis of this report, P.W. 5 Raghvendra Singh, Naib Tehsildar proceeded to prepare the inquest report of the deceased. He had received the relevant papers. The body was sealed and sent to B.H.U. for postmortem. The deceased had died due to burn injuries. The inquest Report was prepared and proved as Exhibit Ka-2.
4. Postmortem on the corpse was conducted by P.W. 4 Dr. P.N. Singh on 27.7.2006 at 3:30 p.m. The Doctor found the following injuries on the body of the deceased :
On external examination:-
Dermal-Epidermal infected burn injury all over the body except head, face, neck (front), few parts of chest abdomen and outer aspect of both upper limbs and both sole.
On internal examination:-
The spleen and kidney were found pale. Rigormortis had passed all over the body and the deceased died due to septicemia shock as a result of infected burn injuries. The witness proved the postmortem report as Exhibit Ka-3.
5. Prior to the death of the deceased, a dying declaration was recorded by P.W. 6 T.N. Dwivedi on 6.7.2006. He proved the statement as Exhibit Ka-4. Constable Lallan Prasad P.W. 7 scribed the chick on the basis of the written report, which was proved as Exhibit Ka-5. Exhibit Ka-6 is the copy of the G.D., which was scribed by Constable Lallan Prasad P.W. 7.
6. P.W. 9 also investigated the matter, he recorded the supplementary statement of Birju, prepared the site plan on his pointing out, which was proved as Exhibit Ka-8. He further recorded the statement of informant Badri, witnesses Raja Ram, Ram Sagar, Ram Janam. He also recorded the statements of the witnesses, who witness the inquest.
7. Further, investigation was entrusted to P.W. 8 S.I. Yogendra Singh on 20.9.2006. This witness perused the investigation conducted by his predecessor. He recorded the statement of the accused Jiya Lal. Further he recorded the statement of Rameshwar Singh, Constable Sahab Singh Yadav, Naib Tehsildar Raghvendra Singh. The statement of the victim Beila Devi was recorded on 28.9.2006. On 3.10.2006, the statement of A.C.M. I T.N. Dwivedi was recorded and finally the charge-sheet was submitted and proved as Exhibit Ka-7.
8. The prosecution examined as many as nine witnesses. P.W. 1 Badri, the informant who has proved the written report as Exhibit Ka-1. P.W. 2 is Ramayan brother of Badri. P.W. 3 is Bhullan Prasad, son of the informant and brother of the deceased. The evidence of P.W. 4 Dr. P.N. Singh, P.W. 5 Raghvendra Singh, P.W. 6 T.N. Dwivedi, P.W. 7 Constable Lallan Prasad, P.W. 8 Yogesh Singh, retired Deputy Superintendent of Police, and P.W. 9 Kamlesh Bahadur, Circle Officer has already been discussed by me.
9. After close of the prosecution evidence, the statement of the accused was recorded underSection 313 Cr.P.C. in which the unnatural death of the deceased was admitted. Demand of dowry was denied. Marriage was admitted to have solemnized six years prior to the lodging of the F.I.R. The accused Beila Devi stated that the deceased had illicit relations with her brother-in-law Kashi. A daughter was born out of the relations of Kashi and the deceased. A Panchayat was called in the matter. The deceased wanted to go to her parental house, which could not be materialized. The parents did not take her, due to which the deceased committed suicide. Her family members were informed. The deceased lived separately. No dowry was ever demanded. The appellant Jiya Lal has stated that he lived separately, when the deceased set herself ablaze. She was admitted in a private hospital and the parents of the deceased were informed. Neither he demanded dowry nor he ever harassed the deceased.
10. After hearing learned counsel for the parties, the lower court convicted the appellant Beila Devi and Jiya Lal as stated in para 1 of the judgement and acquitted the remaining accused.
11. Feeling aggrieved, the convicted accused-appellants have come in appeal.
12. I have heard the learned counsel for both the parties and perused the record of the trial court.
13. Learned counsel for the appellants have submitted that the learned lower court has convicted the appellants on the same set of evidence, whereas three accused have been acquitted, thus, the conviction is bad in the eyes of law.
14. Per contra learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence available on record. He has further contended that there was nothing to show that the accused-appellants have been falsely implicated, hence the appeal is liable to be dismissed.
15. The occurrence is said to have taken place on 6.7.2006 some time during the night, whereas report was lodged at the police station on 6.7.2006 at 18:35 hours. The distance of the police station from the place of the occurrence being 10 kms., hence, the report is prompt and chances of embellishments are too remote.
16. To convict an accused under Section 304B I.P.C., the prosecution has to be established the following ingredients :
“(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such a death must have occurred within seven years of her marriage;
(iii) Soon before death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
“113B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.”
18. As per the definition of ”dowry death’ in Section 304B IPC and the wording in Section 113B of the Evidence Act, it is necessary to show that ”soon before death’ the woman concerned had been subjected to cruelty or harassment “for or in connection with the demand of dowry”. On proof of the essentials mentioned therein, under Section 113B of the Evidence Act, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.
19. The expression “soon before death” in Section 304B IPC and Section 113B of the Evidence Act was considered by the Hon’ble Apex Court in Hira Lal vs. State (Govt. of NCT) Delhi; 2003 (8) SCC 80 and the Hon’ble Apex Court in paragraph (9) observed as under:-
“9. A conjoint reading of Section 113-B of the Evidence Act and Section 304- B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113- B of the Evidence [pic]Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”
20. In Kamesh Panjiyar alias Kamlesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388, the Hon’ble Apex Court considered the expression “soon before death” and held as under:-
“……The expression ”soon before’ is very relevant where Section 113-B of the Evidence Act andSection 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ”Soon before’ is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression ”soon before her death’ used in the substantive Section 304-B IPC and Section 113-Bof the Evidence Act is present with the idea of proximity test……” The same view was expressed inThakkan Jha & Ors. vs. State of Bihar, (2004) 13 SCC 348 and Baldev Singh vs. State of Punjab, (2008) 13 SCC 233.
21. The above decisions of the Hon’ble Apex Court laid down the proximity test i.e. there must be material to show that “soon before her death” the woman was subjected to cruelty or harassment “for or in connection with dowry”. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. “Soon before death” is a relative term and no strait-jacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term “soon before death” is left to be determined by the Courts depending upon the facts and circumstances of each case.
22. In the light of the above principles, let us consider the evidence adduced by the prosecution and examine whether the court below were right in convicting the appellants under Section 304BIPC.
23. As far as point No. (i) is concerned, there is no dispute that the death of the deceased was caused by burn or bodily injury or otherwise than under normal circumstances. Thus, admittedly the death of the victim was unnatural as is evident from the postmortem report and the inquest report. The statements of the witnesses and even the statement of the accused recorded underSection 313 Cr.P.C. The accused have also stated that death of the deceased was unnatural, but the deceased had committed suicide. Thus, point No. (i) stands satisfied.
24. As far as point No. (ii) is concerned, the factum that such death must have occurred within seven years of her marriage is concerned. As per the F.I.R. and the prosecution version, the marriage of the deceased with Sant Ram took place four years prior to the date of incident, whereas in the statement of the accused recorded under Section 313 Cr.P.C., marriage took place six years prior to the incident. Although there is a variation about the time period, whether marriage took place four years prior to the incident or six years prior to the incident. But this will not matter much because as per version of both the parties the unnatural death definitely took place within seven years of her marriage. Thus, the point No. (ii) also stands satisfied.
25. Point Nos. (iii) (iv) and (v) are interconnected, hence they can be discussed together. Now it has to be seen as to whether soon before her death, she was subjected to cruelty or harassment by her husband or any relatives of her husband. Such cruelty must be for or in connection with the demand of dowry and is shown to have been meted out to the woman soon before her death.
26. An isolated instance of demand of dowry about many years prior to the death cannot be said to construe proximate live link to the death to sustain the conviction of the appellant underSection 304B I.P.C.
27. Although there are averments in the F.I.R. that the accused demanded a gold chain and two wheeler and since the demand could not be fulfilled there were differences between the families and the deceased used to be harassed.
28. Definitely, the averments in the F.I.R. cannot take place of proof, thus, the court has to find the evidence adduced before the trial court. P.W. 1 is Badri, the father of the deceased, who has stated that Neyur Yadav came to his house on bike and told him that his daughter was burnt and was admitted in Hospital opposite Chirai Block. This witness has further stated that in the hospital his daughter told him that she was sleeping in the house, suddenly, her mother-in-law Beila Devi, brother-in-law Jiya Lal, Kanhaiya, Sri Ram and wife of Sri Ram sprinkled kerosene oil on her and set her ablaze, due to which she was burnt. He further stated that his daughter told him that this was done by the accused persons in connection with the demand of dowry.
29. The statement of the deceased shall be discussed later on. As usual this witness also had to undergo the test of cross-examination, in which this witness has stated that whenever he used to go to meet his daughter, demand was placed. P.W. 2 is the uncle of the deceased who has admitted that Jiya Lal lives in a separate house, which has also been admitted by the P.W. 1 Badri. Practically, exonerating all the accused as regards demand of dowry. P.W. 2 Ramayan has stated “lksus dh fldM+h vkSj eksVj lkbZfdy larjkt vius iguus vkSj pykus ds fy, ekaxrs gSA” Sant Raj husband of the deceased was not an accused in this case neither he was named in the F.I.R. Thus, the aforesaid statement of the father of the deceased shatters the whole prosecution case as far as demand of dowry by the present appellants is concerned.
30. A perusal of the complete statement of P.W. 2 Ramayan reveals that nowhere he has stated that the accused used to demand dowry and used to torture her for non-fulfillment. Although, he has stated about what the deceased stated in her dying declaration, which shall be discussed later.
31. P.W. 3 is Bhullan Kumar, brother of the deceased, who has stated that when his sister came to his house, she used to tell that Beila, Kanhaiya, Jiya Lal, Sri Ram and Kamla Devi passed remarks, at which this witness talked to the accused persons and things were set right.
32. As far as the evidence of “soon before her death” is concerned, this evidence is wanting in the statement of Badri P.W. 1 and Ramayan P.W. 2. Coming to the evidence Bhullan Kumar, P.W. 3, who has stated that about 2 months after the marriage, the deceased had informed him about demand of dowry and the cruelty and harassment on account of non-fulfillment. This demand of dowry three or four years prior to the occurrence, by no stretch of imagination can be called to be demand “soon before her death”.
33. The expression “soon before her death” no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasis the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, whether the said interval in that particular case was sufficient to snuff its cord from the concept “soon before her death”.
34. Thus, there is no evidence on record that there was a demand of dowry “soon before her death” and the deceased was subjected to cruelty in connection with demand of dowry “soon before her death”.
35. Learned A.G.A. has submitted that the dying declaration of the deceased is on record, which proves that as per version of the deceased herself demand for dowry was made and in connection thereof she was burnt to death. This statement of the deceased, who is said to have been set ablaze on 6.6.2007 was recorded and she died on 26.7.2008 i.e. about 20 days after the occurrence. Thus, cause of death as opined by the Doctor was septicemic shock as a result of infected burn injury. The father of the deceased Badri has admitted that when the husband of the deceased had left the house, the deceased was maintained by the appellant Beila Devi. This witness has admitted that the appellant Beila Devi was doing the job of making baskets, this shows that the family of the appellants was too poor to maintain a motorcycle at all.
36. Coming to the statement of the deceased recorded under Section 32 of the Indian Evidence Act, the test of the relevancy of a statement under Section 32(1), is not what the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression ‘any of the Circumstances of the transaction which resulted in his death’; is wider in scope than the expression ‘the cause of his death’; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death.
37. The words, ‘resulted in his death’ do not mean ’caused his death’. Thus it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue.
38. It would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows:-
(1) Dying declaration of the deceased, (2) the oral statements made by the deceased to her father P.W.1 Badri showing her state of mind shortly before her death and the complaints which she made regarding the ill- treatment by the family members of her husband, (3) the unnatural and incriminating conduct of the appellant;
(4) medical evidence.
39. Learned counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide. He has also questioned the legal admissibility of the statements contained oral dying declaration. He has submitted that the so-called dying declarations are admissible neither under Section 32 of the Evidence Act nor underSection 8 of the Evidence Act it was submitted by the appellant that the present case is not at all covered by Clause (1) of Section 32 of the Evidence Acts.
40. The leading decision on this question, which has been endorsed by Hon’ble Apex Court, is the case of Pakala Narayana Swami v. Emperor, AIR 1939 PC 47 where Lord Atkin has laid down the following tests:
“It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the actual occurrence. It will be observed that “the circumstances are of the transaction which resulted in the death of the declarant.”
41. These principles were followed and fully endorsed by a decision of Hon’ble Apex Court in Shiv Kumar & Ors v. The State of Uttar Pradesh (Criminal Appeal No. 55 of 1966, decided on July 29, 1966) and printed in blue prints of Supreme Court Judgement where the following observations were made:
“It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, a necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence the phrase “circumstances of the transaction” is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae”.
42. The aforesaid principles have been followed by a long catena of authorities :
“In as much as the torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act.”
“The ‘transaction’ in this case is systematic ill treatment for years since the marriage of deceased with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence.”
43. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within circumstances of transaction.
44. The evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. “Thus evidence of cruelty, ill treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of the deceased in that regard which related to the circumstances terminating in suicide.
45. Similarly, in Onkar v. State of Madhya Pradesh, 1947 Cri LJ 1200 while following the decision of the Privy Council in Pakala Narayana Swami’s case (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by Section 32 of the Evidence Act thus:
“The circumstances must have some proximate relation to the Actual occurrence and they can only include the acts done when and where the death was caused. Thus, a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.”
46. In Gokul Chandra Chatterjee vs. The State, AIR 1950 Cal 306 the Calcutta High Court has somewhat diluted the real concept of proximity and observed thus:
“In the present case, it cannot be said that statements in the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under Section 32(1), Indian Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death.”
47. Clause (1) of 32 of the Indian Evidence Act provides that “Statements, written or verbal, of relevant facts made by a person who is dead,are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person’s death comes into question.”
It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death.
48. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.
49. In the case of State v. Kanchan Singh & Another, AIR 1954 All 153 it was observed thus:
“The law in India does not make the admissibility of a dying declaration dependent upon the person’s having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32 of the Indian Evidence Act.”
50. In these circumstances, therefore, it is futile to refer to English cases on the subject. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Indian Evidence Act, the following propositions emerge:-
“(a) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(b) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(c) The second part of clause 1 of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(d) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(e) Where the main evidence consists of statements and statement given by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 of Evidence Act and, therefore, be admissible. The distance of time alone in such cases would not make the statement irrelevant.”
51. The statement under Section 32 of the Evidence Act bears the certificate of the Doctor before and after the statement that the patient remained fit during the statement. I would like to copy of the statement given by the deceased:-
“jkf= djhc 11&12 cts ds chp esa eSa djdV dh >ksiM+h esa lks x;hA eq>s vkx dh tyu yxh rks txh ,oa Hkxh rks >ksiM+h ds njokts ij fxj x;hA vkx yxh FkhA vkx fdlus yxk;k irk ughaaA eSus Loa; vkx ugha yxk;hA esjh lkl csyk efe;k lkl deyk dUgS;k] efe;k llqj Jhjke efe;k llqj ,oa ft;kyky us vkx yxk;hA ‘kknh tc gqbZ rc dg jgs Fks fd dqN ugha pkfg, ckn xkM+h ,oa lksus dh pSu ekax jgs FksA gesa ekjrs ihVrs Fks ,oa Hkxk fn;k FkkA esjs ,d yM+dk fizal gSA ,d yM+dh 2 1@2 eghus dh Fkh tks ej x;h gSA yM+dh dh e`R;q Hkh ?kjokyksa ds dkj.k gq;hA esjs ifr 5&6 eghus ls ckgj gSa vkx yxkus ds fnu ugha FksA vkx yxus ds fnu ls igys esjs pkpk vkfn o efe;k llqj esa yM+kbZ gq;h Fkh o ekj ihV Hkh gqbZ mlh ls ukjkt gksdj esjs vkx yxk;h x;hA vkx ds igys yxrk gS cPpk fizal mBk ys x;s gSa D;ksfd og esjs lkFk gh ysVk FkkA >ksiM+h (?kj) ugha tyhA fcLrj [kkyh tyk gSA >ksiM+h djdV dadhV dk Fkk Qyr% ugha tykA vkSj dqN ugha dguk gSA “
If, the statement of the deceased is taken in its entity too, even then it would not come to the rescue of the prosecution inasmuch as the victim has stated that she did not know as to who set fire, she did not set herself ablaze, her mother-in-law Beila, Kamla, Kanhaiya, Sri Ram and Jiya Lal set fire. She has further stated that after the marriage a vehicle and a gold chain was demanded, she was assaulted and she was driven out of the house. She has admitted that her husband was out for the last five to six months. The dying declaration further states that one day prior to the incident, she had altercations with the accused persons and she was also beaten and this was the reason why she was set ablaze. But she has not stated a word that she was set her ablaze due to demand of dowry. Even P.W. 1 Badri had stated that the deceased told him that all the accused had set her ablaze. He has stated that there was no altercation between the deceased and the family members one day prior to the incident, which is against the dying declaration Exhibit Ka-4.
52. The informant has admitted that his daughter told him that her husband has left the house because he was not given a motorcycle and a golden chain. This statement is neither palatable nor digestible.
53. P.W. 3 Bhullan brother of the deceased has denied about Sant Ram leaving the house contradicting his father P.W. 1 Badri who has stated that Sant Ram (husband of the deceased) had not left his house 1 ½ year before the incident. The death of the deceased accord due to shock as a result of infected burn injuries, as stated earlier she died 20 days after the occurrence.
54. Thus, on the basis what has been discussed above, the prosecution miserably failed to Point Nos. (iii) (iv) and (v).
55. Another glaring fact in the case is that in the F.I.R. the informant has stated that the deceased told him that the accused sprinkled kerosene oil on her and set her ablaze. This averment is missing in the statement of the witnesses. T.N. Dwivedi, P.W. 6 in his cross-examination has stated that the deceased did not mention that she was burnt by sprinkling kerosene oil on her in her dying declaration.
56. The I.O. P.W. 9, Kamlesh Bahadur has stated that there were no door in the room, where the deceased died and even the I.O. has stated that it came in the light during the course of the investigation that in the absence of the husband of the deceased the applicant Beila Devi being mother-in-law of the deceased used to take care of her and used to bear her expenses.
57. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B of Indian Penal Code and Section 113-B of the Evidence Act were inserted as noted earlier by theDowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-
“113-B: Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section ‘dowry death’ shall have the same meaning as inSection 304-B of the Indian Penal Code (45 of 1860).”
58. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of ‘dowry death’ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B of the Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(a) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(b) The woman was subjected to cruelty or harassment by her husband or his relatives.
(c) Such cruelty or harassment was for, or in connection with any demand for dowry.
(d) Such cruelty or harassment was soon before her death.
59. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.
60. Thus, on the basis what has been stated above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused-appellant is guilty for the offence charged. Thus, the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgement of conviction and sentence dated 27.7.2012 passed by Additional Sessions Judge, Court No. 14, Varanasi in S.T. No. 155 of 2007 (State Vs. Beila Devi and others) arising out of Crime No. 276 of 2006, Police Station-Chaubepur, District-Varanasi, is hereby set aside.
61. Accordingly, the appeal is allowed.
62. The accused-appellants are in jail. They shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.
63. Let a copy of this order be sent to the trial court concerned for compliance of the order.
Order Date :- 19.2.2016