Affirming the judgment and order of sentence convicting the appellants passed by the Sessions Judge, Bagalkot in S.C. No.35 of 2011 dated 14.09.2012 for the offences punishable under Section 498A, 304B read with Section 34 of IPC and Section 3 and 4 of Dowry Prohibition Act (for short the ‘DP Act’) has been called in question. (Para 2)
It was alleged that accused No.1 and his parents (appellants) gave physical and mental torture to his daughter and unable to bear the same she committed suicide by self-immolating namely by pouring kerosene and lighting fire. (Para 3)
The learned Trial Judge had convicted the accused by relying upon the dying declaration (Ex.P.45) and sentenced them to undergo 7 years of simple imprisonment for the offence under Section 304B (Para 3)
Appeal came to be preferred on various grounds and primarily on the ground that deceased had suffered burn injuries to the extent of 70-80% and she was not in a position to speak. It was also contended that Doctor PW-32 who had certified that deceased was able to speak had not even recorded the blood pressure and pulse rate of the deceased in the case-sheet and the treated doctor PW-31 has also admitted that general condition of the deceased was poor at the time of admission to the hospital itself. It was also urged that evidence which was available before the trial court was not appreciated in proper perspective and mere dying declaration cannot be the sole basis of conviction unless it was corroborated. It was also contended that none of the prosecution witnesses supported the story of prosecution and they had turned hostile and as such learned Session Judge ought not to have convicted the accused persons. (Para 4)
The gist of the prosecution case is that there was consistent demand for dowry and deceased was tortured for additional dowry and unable to sustain the physical and mental torture meted out to her, she had committed suicide by self-immolation viz, by pouring kerosene and lighting herself. (Para 9.1)
The complainant, PW-24 who is the father of the deceased has not supported the case of the prosecution and he has deposed that accused had looked after the deceased well. Long and short of the deposition of PW-24 (father of deceased) is that he did not support the case of the prosecution. PW-1 witness to the inquest panchanama too has turned hostile. The neighbours of the house where the deceased was residing namely PW-3 and PW-4 have turned hostile. PW-5 and PW-21 whom the prosecution claimed of having known the fact of illtreatment given by the accused to the deceased have turned hostile. The persons who are said to have advised the accused not to ill-treat the deceased have also turned hostile. The persons who were present during the marriage talks of the deceased and accused No.1 namely PW-7 to PW-9 have also not supported the case of the prosecution. Other witnesses namely PW-10, 11, 12, 19, 18, 30 as well as the mother of the deceased PW-22 have not supported the case of the prosecution. Dr. Suresh Basarkod (PW.26) who tendered the case sheet attested by casualty medical officer of Kumareshwar Hospital, Bagalkot, where deceased was admitted, has deposed that Dr. Pramod Mirji (PW-31) and Dr. Vishwanath are competent to speak about medical treatment extended to Mahadevi (deceased). However, Dr. Vishwanath was not examined. (Para 9.2)
The physical disability suffered by her on account of the burn injuries sustained would not disentitle her to make statement, if said statement had been made consciously knowing the consequences thereof and such statement or declaration cannot be brushed aside only on the ground of burn injuries (in the instant case 70% to 80%) having been sustained by her. As such, the contention raised by the learned advocates appearing for the appellants cannot be accepted or in other words the dying declaration cannot be brushed aside. The acceptance of the dying declaration by the court below is just a proper and under similar circumstances (Para 12)
In the light of above discussion, we are of the considered view that the dying declaration Ex.P-45 in the instant case which came to be accepted by the courts below cannot be found fault with, particularly, in the backdrop of the evidence tendered by the person who recorded the same as per Ex.P-45 and he having stood to his ground in the cross-examination and having spoken about her mental capability to make such statement and that too consciously. Dr. M.C. Kori PW-32 in whose presence the dying declaration Ex.P-45 came to be recorded by PW-25 has categorically stated that deceased Mahadevi was conscious and she was in a condition to speak. (Para 13)
The incidental question that would also arise for our consideration is: whether the conviction of the accused under Section 304B would be sustainable? The ingredients to be satisfied for convicting an accused for the offence punishable under Section 304B are (Para 14)
This Court having arrived at a conclusion that the dying declaration made by the deceased as per Ex.P-45 being genuine and when said declaration is perused it would not suggest that there was any proximate nexus to the act of committing suicide on account of preceding demand for dowry or in other words the demand of dowry on any particular date having triggered the deceased to commit the suicide or forced her to self-immolate. This proximate link not being available in the facts obtained in the present case, we are of the considered view that conviction of the accused under Section 304B cannot be sustained. (Para 17)
In the aforesaid analysis of law, when we turn our attention to the facts on hand it would emerge from the records that appellants-accused persons have been convicted for the offences punishable under Sections 498A, 304B of IPC and Section 3 and 4 of Dowry Prohibition Act. Section 498A of IPC prescribes imprisonment which may extend to 3 years and the Explanation thereunder has two parts. The first part would relate to subjecting a married woman to cruelty for any willful conduct which is of such a nature as is likely to drive her to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical). Second Part i.e. Clause (b) of Section 498A would indicate that cruelty would encompass harassment of a married woman where such harassment is with a view to pressurize her or any person related to her to meet any unlawful demand for any property or valuable security on account of failure by her or any person related to her to meet such demand. (Para 18)
In the light of dying declaration (Ex.P- 45) having been accepted to have been made by the deceased and the contents of the same disclosing that she was unable to withstand the torture meted out, which resulted in her committing suicide would suffice to convict the accused for the offence punishable under Section 498A. (Para 21)
The basic ingredients of an offence under Section 306 is suicidal death and its abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to commit suicide would be necessary. (Para 24)
In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? (Para 29)
The judgment and order of conviction passed by the Sessions Court in SC No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified. The appellants are acquitted for the offences punishable under Section 304B IPC and Section 3 and 4 of Dowry Prohibition Act and convicted for the offence punishable under Section 306 and Section 498A read with Section 34 IPC and sentenced to imprisonment for the period already undergone with fine of Rs.5000/- each and in default to pay the fine to undergo one month simple imprisonment for each of the offence. (Para 30)
SUPREME COURT OF INDIA
2023 STPL(Web) 371 SC
[2023 INSC 933]
Paranagouda And Another Vs. State Of Karnataka And Another
Criminal Appeal No. 3274 of 2023 (@ Special Leave Petition (Crl.) No.12216 of 2022)-Decided on 19-10-2023
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