# Dharam Das (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-29
- **Case number:** Criminal Appeal No. 6896 of 2011
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-das-in-jail-v-state-of-u-p-45368
- **Pages:** 26

## Headnote

A. Criminal Law - Indian Penal Code (45 of
1860) - Sections 304B. 498A - Evidence
Act (1 of 1872) - Section 113B - Dowry
death - Deceased dying unnatural death
within 7 yrs. of marriage & if shown that
soon before her death, she was subjected
to cruelty or harassment by her husband
or her husband's family or relatives in
relation
to
a
demand
for
dowry
-
proximate connection - between demand
of dowry and act of cruelty meted out to
deceased - Presumption - Legal Fiction -
by fiction of law, the husband or relative
would be presumed to have committed
the offence of dowry death rendering
them liable for punishment, irrespective of
the fact whether such person is directly
responsible for the death of the deceased
or not (Para 29)

Deceased died due to burn injuries within 9
months of her marriage - evidence of PW-1
(father) & PW-2 (mother) of deceased woman,
that deceased was harassed on account of
demand of buffalo & cash of Rs.40,000/ -
statement of father consistent with FIR &
corroborated
by
PW-2
(mother)
-
Both
witnesses subjected to cross-examination - No
material contradiction or inconsistency in their
statements - two dying declarations of deceased
- First one to her father, while deceased was
being taken to hospital and second dying
declaration recorded by Magistrate - In both the
dying declarations, deceased stated that she
was being harassed for dowry and that accusedappellant has set her ablaze by pouring
kerosene - no inconsistency or contradiction
between the two dying declarations - Interval
between cruelty and death of deceased is not
much - Presumption u/S. 113-B of Act can
safely be raised against accused - Held - No
illegality in conviction of accused-appellant
based on testimony of PW-1 Veer Singh and
PW-2 Krishna Devi, who are parents of
84 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, as well as the dying declaration of
deceased - - Conviction, proper

B. Evidence Law - Evidence Act (1 of 1872) -
Section 32 - Dying declaration - Absence of
certification of doctor - as to fitness of mind
of deceased declarant, to make such an
statement - medical certification is not a
sine qua non for accepting the dying
declaration - Certification by a doctor is
essentially a rule of caution - voluntary and
truthful nature of the declaration can also
be established otherwise

Dying
declaration
recorded
on
26.09.2008,
deceased died after two months on 26.11.2008 -
deceased suffered only 60% burns, which indicate
that deceased was in fit state of mind to make
such statement. PW-7 doctor who examined the
deceased when she was admitted in hospital, also
stated that deceased was talking condition - no
body's case that during this period of two months
she was not in a condition to speak & that she
could not have made any statement to the
Magistrate - Held - from attending facts, quantum
of percentage of burns sustained by deceased and
statement of PW-7 doctor it appears that deceased
was in fi

## Text

_Characters 0–39,998 of 89,933. This is a partial read: ask again with offset=39998 for what follows._

10 All. Dharam Das Vs. State of U.P.
83
maximum sentence of life imprisonment.
That apart, it may also be observed that
while awarding life imprisonment, the trial
court did not assign any reasons.

33. According sentence of life
imprisonment awarded by the trial for the
offence under section 304-B IPC is reduced
and the accused-appellant Ram Ajor is
sentenced to the period already undergone
by him. The sentences awarded under
section 498-A IPC and Section 4 of Dowry
Prohibition Act by the trial court, are
upheld. As accused-appellant is in custody
since last 16 years, thus, accused-appellant
Ram Ajor be released forthwith, if not
wanted in any other case.

34. Appeal is partly allowed in above
terms.

35. It is further directed that the
accused appellant shall furnish bail bond
with surety to the satisfaction of the court
concerned in terms of the provision of
Section 437-A of Cr.P.C.

35. Let the lower court record be
transmit to the trial court concerned for its
information and compliance.
----------
(2020)10ILR A83
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 6896 of 2011

Dharam Das ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ganesh Shanker Srivastava, Sri K.K.
Dwivedi, Sri Om Prakash Kannaujia

Counsel for the Opposite Party:
Ms. Archana Singh, A.G.A.

A. Criminal Law - Indian Penal Code (45 of
1860) - Sections 304B. 498A - Evidence
Act (1 of 1872) - Section 113B - Dowry
death - Deceased dying unnatural death
within 7 yrs. of marriage & if shown that
soon before her death, she was subjected
to cruelty or harassment by her husband
or her husband's family or relatives in
relation
to
a
demand
for
dowry
-
proximate connection - between demand
of dowry and act of cruelty meted out to
deceased - Presumption - Legal Fiction -
by fiction of law, the husband or relative
would be presumed to have committed
the offence of dowry death rendering
them liable for punishment, irrespective of
the fact whether such person is directly
responsible for the death of the deceased
or not (Para 29)

Deceased died due to burn injuries within 9
months of her marriage - evidence of PW-1
(father) & PW-2 (mother) of deceased woman,
that deceased was harassed on account of
demand of buffalo & cash of Rs.40,000/ -
statement of father consistent with FIR &
corroborated
by
PW-2
(mother)
-
Both
witnesses subjected to cross-examination - No
material contradiction or inconsistency in their
statements - two dying declarations of deceased
- First one to her father, while deceased was
being taken to hospital and second dying
declaration recorded by Magistrate - In both the
dying declarations, deceased stated that she
was being harassed for dowry and that accusedappellant has set her ablaze by pouring
kerosene - no inconsistency or contradiction
between the two dying declarations - Interval
between cruelty and death of deceased is not
much - Presumption u/S. 113-B of Act can
safely be raised against accused - Held - No
illegality in conviction of accused-appellant
based on testimony of PW-1 Veer Singh and
PW-2 Krishna Devi, who are parents of
84 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, as well as the dying declaration of
deceased - - Conviction, proper

B. Evidence Law - Evidence Act (1 of 1872) -
Section 32 - Dying declaration - Absence of
certification of doctor - as to fitness of mind
of deceased declarant, to make such an
statement - medical certification is not a
sine qua non for accepting the dying
declaration - Certification by a doctor is
essentially a rule of caution - voluntary and
truthful nature of the declaration can also
be established otherwise

Dying
declaration
recorded
on
26.09.2008,
deceased died after two months on 26.11.2008 -
deceased suffered only 60% burns, which indicate
that deceased was in fit state of mind to make
such statement. PW-7 doctor who examined the
deceased when she was admitted in hospital, also
stated that deceased was talking condition - no
body's case that during this period of two months
she was not in a condition to speak & that she
could not have made any statement to the
Magistrate - Held - from attending facts, quantum
of percentage of burns sustained by deceased and
statement of PW-7 doctor it appears that deceased
was in fit state of mind to make an statement
(Para 42, 44, 45, 47)

C. Evidence Law - Evidence Act (1 of 1872)-
Section
32
-
Dowry
Death
-
Dying
declaration - Dying declaration could not be
proved, as the Magistrate, who recorded it
could not be examined, as he passed away -
Held - defence has not put forward any such
case that no dying declaration of deceased
was recorded at all - considering the fact
that the Magistrate, who recorded dying
declaration could not be examined, before
acting upon this dying declaration, its
corroboration would be desirable - to see
whether it is reconcilable and consistent
with alleged oral dying declaration made by
deceased to her father (Para 46)

D. Civil Law - Dowry Prohibition Act (28 of
1961) - Section 3, giving or taking dowry -
Section 4, Penalty for demanding dowry -
evidence against accused-husband that
after marriage he used to demand buffalo &
cash from deceased as additional dowry - no
evidence to satisfy ingredients of Section 3
D.P. Act rather mischief of accused squarely
covered u/s 4 D.P. Act - conviction of
accused u/s 4 upheld but conviction u/s 3
set aside (Para 61, 62)

E. Criminal Law - Indian Penal Code (45 of
1860), Section 304B - Dowry death -
burning for dowry - Quantum of Sentence -
Object of sentencing to protect society,
deter criminal - Determination - nature of
offence, manner in which offence was
executed
-
Punishment
-
Punishment
awarded must be consistent with the
atrocity & brutality with which the crime
perpetrated - court must deal with dowry
death in most severe & strict manner - so
that it operate as a deterrent to other
persons from committing such anti- social
crimes - Court will be failing in its duty if
appropriate punishment is not awarded for
a crime, which has been committed not only
against individual victim but also against
society (Pg 64)

Deceased young lady aged 20 yrs, marriage
solemnised 7 months prior to the incident, died of
burn injuries within 9 months of her marriage,
struggled for life for about 2 months in hospital -
ample evidence that accused-appellant set her on
fire - specific role of accused-appellant that she
was continuously being harassed by him for dowry
since after her marriage - Accused in jail for about
11 yrs, never granted bail - Held - case of rare
category to warrant maximum sentence i.e. life
imprisonment (Para 67)
Partly allowed. (E-5)
List of cases cited:-

1. Kashmir Kaur Vs St. of Punj., AIR 2013 SC 1039

2. Paniben (Smt) Vs St. of Gujarat (1992) 2 SCC 474

3. Koli Chunilal Savji Vs St. of Guj. AIR 1999 SC 3695

4. Babulal Vs St. of M.P.(2003) 12 SCC 490

5. Laxman Vs St. of Maharashtra reported in
MANU/SC/0707/2002
10 All. Dharam Das Vs. State of U.P.
85
6.
Atbir
Vs
Government
of
NCT
of
Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1

7. Jagbir Singh Vs St. NCT of Delhi (2019) 8 SCC 779

8. Banshi Lal Vs St. of Hary. AIR 2011 SC 691

9. Prem Kumar Vs St. of Raj. (2009) 3 SCC 726

10. Sumer Singh Vs Surajbhan Singh & ors (2014) 7
SCC 323

11. Sham Sunder Vs Puran (1990) 4 SCC 731

12. M.P. Vs Saleem (2005) 5 SCC 554

13. Ravji Vs St. of Raj. (1996) 2 SCC 175

14. Hem Chand Vs St. of Hary. (1994) 6 SCC 727

15. Kashmira Devi Vs St. of Uttr & ors, Criminal
Appeal No. 724 OF 2019 28.01.2020

16. Rajesh Bhatnagar Vs St. of Uttr. (2012) 7 SCC 91

(Delivered by Hon'ble Raj Beer Singh J.)

1. This Criminal Appeal has been
preferred against judgment and order dated
17.11.2011 passed by Additional Sessions
Judge, Court No. 3, Kaushambi in Session Trial
No. 61 of 2009, Crime No. 277 of 2008, under
Sections 498-A/34, 323/34, 326/34, 304-B/34
of Indian Penal Code (hereinafter referred as
IPC) and section 3⁄4 Dowry Prohibition Act
(hereinafter referred as D.P. Act), whereby
accused-appellant Dharam Das has been
convicted under section 498-A, 304-B of IPC
and 3⁄4 of DP Act. He was sentenced to
imprisonment for life under Section 304-B IPC,
imprisonment for five years along with fine of
Rs. 15,000/- under Section 3 of DP Act and two
years rigorous imprisonment along with the fine
of Rs.1,000/- under Section 4 of DP Act. No
sentence was awarded under section 498-A
IPC. All the above sentences were to run
concurrently. However, co-accused Dharam
Veer, Kailasha Devi and Phaguhar were
acquitted of all the charges.

2. Accused-appellant Dharam Das is
husband of deceased Saroj Devi and their
marriage was solemnized on 20.02.2008. After
marriage, accused-appellant Dharam Das and
his family members used to beat and harass
Saroj Devi for dowry. They used to demand a
buffalo and cash of Rs. 40,000/-. Whenever
deceased used to meet her family members, she
used to tell them about the dowry demand and
harassment. First informant Veer Singh, who is
father of deceased Saroj Devi, tried to make
accused-appellant understand but in vain. It is
alleged that on 25.09.2008 accused-appellant
Dharam Das and his other family members put
the deceased Saroj Devi ablaze by pouring
kerosene over her and resultantly, she has
suffered
serious
burn
injuries.
After
information, PW-1 Veer Singh and his family
members reached there and the deceased was
taken to Chayal Primary Health Center and
from there she was referred to Swaroop Rani
Nehru Hospital, Allahabad and accordingly she
was admitted there.

3. PW-1 Veer Singh reported the matter to
police by submitting a tehrir exhibit Ka-1 and
 consequently first information report was
registered on 26.09.2008 at 23:30 hours under
Section 498-A, 326, 323 of IPC and 3⁄4 of DP
Act vide exhibit ka-8 .

4. It is also the case of prosecution that on
26.09.2008, while deceased was lying admitted
in said SRN hospital, her statement was
recorded by Sri Sudhir Kumar Mishra,
Additional City Magistrate, Allahabad vide
exhibit ka-15 and in that dying declaration
deceased has told that her husband Dharam Das
used to beat her and that a day before, he beat
her severely and set her ablaze after pouring
kerosene. She has also stated that before that
86 INDIAN LAW REPORTS ALLAHABAD SERIES
incident, he has turned his mother and brother
out of the home.

5. During treatment, on 26.11.2008
deceased Saroj Devi succumbed to injuries.
Inquest proceedings were conducted by PW-3
Surendra Bahadur Singh, Nayab Tehsildar vide
inquest report exhibit Ka-2. Dead body of
deceased was sealed and sent for post-mortem.
After death of deceased, section 304-B IPC was
added during investigation.

6. Post-mortem on dead body of deceased
was conducted on 26.11.2008 by PW-5 Dr. T.B.
Maurya vide post-mortem report exhibit Ka-10.
She has sustained following ante-mortem
injuries:

(i) Old healed burn injury present
on Rt side face including Rt eye.

(ii) Post burn granulating tissue
present on posterior of whole chest
including belly axilla & upper part of
abdomen.

(iii) Healed burn injury present
on front of both upper limbs.

(iv) Bed sore 4 x 3 cm present on
back of pus coming out from sore.

Cause of death was stated due to
septimic shock as a result of ante mortem
injury.

7. Investigation was conducted by PW6 S.I. Ram Pal Chaudhary. During course of
investigation, he prepared site plan exhibit
Ka-11, recorded statements of witnesses and
after completion of investigation, accused
persons were charge sheeted.

8. Accused-appellant Dharam Das and
co-accused Dharam Veer, Kailashi Devi and
Phaguhar were charged for the offences under
Section 498-A, 323/34, 326/34, 304-B,/34 of
IPC and 3/4/34 of DP Act. In order to bring
home guilt of accused persons, prosecution
has examined nine witnesses.

9. Accused-appellant Dharam Das and
co-accused persons were examined under
section
313
Cr.P.C.
wherein
accusedappellant Dharam Das has denied the
prosecution evidence and stated that he has
never made any demand of dowry nor harass
the deceased and that on 24.09.2008, she has
suffered burn injuries while preparing food.
He has tried to save her and in that process,
he has also suffered burn injuries. Deceased
was admitted by him in Priya hospital on
24.09.2008. On 25.09.2008 her family
members came and they forcibly admitted
her in Swaroop Rani Nehru Hospital and a
false report was lodged.

10. In defence evidence, one Dr.
Kaushlesh Dwivedi has been examined as
DW-1.

11. After hearing and analysing the
evidence
on
record,
accused-appellant
Dharam Das was convicted under section
304-B of IPC and 3/4 of DP Act and
sentenced as stated in opening part of this
judgment.

12. Being aggrieved by the impugned
judgment and order, accused-appellant has
preferred present criminal appeal.

13. Heard Sri Ganesh Shanker
Srivastava learned counsel for appellant and
Ms. Archana Singh, learned A.G.A. for the
State and perused the record.

14. Learned counsel for the appellant
has mainly argued that deceased has
suffered burn injuries accidentally while
making food and that accused-appellant has
tried to save her and that in that process
10 All. Dharam Das Vs. State of U.P.
87
accused-appellant himself has sustained
burn injuries at is hands and thus, the
prosecution version is not reliable. Both the
material witnesses are family members of
deceased and that as the deceased has
married with accused-appellant against
wishes of her parents, thus due to that
reason they have deposed falsely against
the accused-appellant. It was submitted that
alleged dying declaration (exhibit ka-15) of
deceased could not be proved, as much as,
the Magistrate, who recorded it could not
be examined and that there is no certificate
of doctor regarding her capacity to make
such an statement. Besides the accusedappellant Dharam Das, his brother Dharam
Veer, mother Kailashi Devi and father
Phaguhar
were
also
named
in
first
information report and were to put to trial
but they have been acquitted by the trial
court and thus, the conviction of accusedappellant is not in accordance with law. It
was submitted that from the defence
evidence, it has been established that
accused-appellant
has
sustained
burn
injuries at his hands, which indicates that
accused-appellant has tried to save the
deceased and after incident, he has taken
the deceased to hospital which clearly
indicates his bonafideness. It was argued
that the trial court has not considered
evidence
in
correct
perspective
and
committed error by convicting the accusedappellant.

15. Per-contra, it has been submitted
by learned State counsel that accusedappellant is husband of deceased and that
deceased has died due to burn injuries
within a short span of time i.e. within 9
months of her marriage. There is clear and
consistent evidence of PW 1 Veer Singh
and PW 2 Krishna Devi that accusedappellant used to harass the deceased on
account of dowry. Further, there are two
dying declarations of deceased. First one
was made to PW 1 Veer Singh, while
deceased was being taken to hospital and
second dying declaration exhibit ka-15 was
recorded by Magistrate. In both the dying
declarations, deceased has stated that she
was being harassed for dowry and that
accused-appellant has set her ablaze by
pouring
kerosene.
Both
the
dying
declarations
have
been
proved
in
accordance with law. It was submitted that
case of accused-appellant is different from
rest of accused persons, mainly because
said co-accused were not named by the
deceased in her dying declaration. Further,
accused-appellant
is
husband
of
the
deceased and it was his duty to protect her.
It has been submitted that conviction of
accused-appellant is based on evidence and
it calls for no interference.

16. We have considered rival
contentions and perused the record.

17. In evidence, PW-1 Veer Singh,
who is father of the deceased, has stated
that the marriage of his daughter Saroj Devi
was
solemnized
on
20.02.2008
with
accused-appellant Dharam Das and he has
given dowry articles as per his capacity.
After 6-7 days of marriage, when Saroj
Devi came to her paternal home, she has
told that the family members of her in-law's
were harassing her on account of dowry
and they are not providing her even the
necessary basic amenities and food. She
has told that accused-appellant and his
family members were demanding a buffalo
and Rs.40,000/- cash. PW-1 Veer Singh
tried to convince her and after one and a
half month, she was sent back to her
matrimonial house. Whenever PW-1 Veer
Singh used to visit her matrimonial home,
deceased used to tell that accused persons
were continuously harassing her for dowry.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

On 25.09.2008 at 05:00 AM he
was informed on telephone that his
daughter Saroj has been burnt. He reached
there and found that his daughter was lying
there in burnt condition and all the family
members of her in-law's have fled away.
PW-1 Veer Singh took the deceased to
Chayal Primary Health Center and from
there she was admitted in Swaroop Rani
Nehru Hopital, Allahabad. PW-1 Veer
Singh has further stated that his daughter
has told him that her husband Dharam Das
and his family members have burnt her by
pouring kerosene. On 26.09.2008 PW-1
Veer Singh has reported the matter to police
and on 26.11.2008 deceased has succumbed
to the burn injuries.

18. PW-2 Smt. Krishna Devi, who is
mother of the deceased, has also made a
similar statement and stated that marriage
of her daughter Saroj Devi was solemnized
with Dharam Das on 22.02.2008 and they
have given dowry as per their capacity.
After marriage when deceased came to her
paternal home she has told that accused
persons were demanding a buffalo and cash
of Rs.40,000/- and on that account they
were harassing her. They tried to convince
her and sent her back to her matrimonial
home but even after that accused persons
continued harassing the deceased on
account of the said demands. When third
time her daughter Saroj Devi came from
her matrimonial home, she has told that she
was continuously being harassed and that
accused persons were not allowing her
even to take proper food. Her husband
Dharam Das used to beat her after
consuming liquor. However, deceased was
again sent back to her matrimonial home
and thereafter, on day of incident, they
were informed that accused persons have
burnt the deceased. PW-2 Krishna Devi
further stated that her husband went there
and while taking the deceased to hospital,
in the way, they have stopped at her home
and deceased has told her that accused
persons were exhorting to kill her by burns.
Thereafter, deceased was taken to Chayal
Hospital and from there, she was admitted
in Swaroop Rani Nehru hospital, where
during treatment, she died.

19. PW-3 Surendra Bahadur Singh,
Nayab Tehsildar, has conducted inquest
proceedings.

20.

PW-4
Constable
Dharma
Chaturvedi, has recorded the FIR.

21. PW-5 Dr. T.B. Maurya has
conducted post-mortem of the deceased.

22. PW-6 S.I. Rampal Chaudhary has
conducted investigation.

23. PW-7 Dr. R.P. Mishra, has
medically examined deceased at Swaroop
Rani Nehru Hospital.

24. PW-8 ASP Gyan Prakash
Chaturvedi
has
conducted
further
investigation
and
he
has
filed
supplementary charge sheet exhibit Ka-14.
He has also stated that on 26.09.2008
statement of deceased was recorded by Sri
Sudhir Kumar Mishra, Additional City
Magistrate, Allahabad and in that dying
declaration deceased has told that her
husband, mother-in-law and brother-in-law
used to beat her and that a day before, they
have burnt her after pouring kerosene.

25. PW-9 Subha Mishra, is wife of
late Sudhir Kumar Mishra, who recorded
dying declaration of deceased. She has
stated that Sudhir Kumar Mishra was
posted as Additional City Magistrate,
10 All. Dharam Das Vs. State of U.P.
89
Allahabad and he has died on 08.01.2009
while he was still working as Additional
City Magistrate, Allahabad. Thereafter, she
was provided a job in collectorate in dying
in harness. She is well conversant with
handwriting of her husband Sudhir Kumar
Mishra. She has stated that exhibit Ka-15 is
in handwriting and under signature of her
husband Sudhir Kumar Mishra.

26. In defence evidence, DW-1 Dr.
Kaushlesh Dwivedi has stated that on
24.09.2008 at about 11:30 pm Saroj Devi
was brought at Priya Hospital Kandhaipur,
Dhoomanganj,
Allahabad
in
burnt
condition. Dharam Das was also suffering
from some burn injuries. DW-1 has asked
the family members of injured Saroj Devi
(deceased)
to
get
her
admitted
in
Government Hospital. DW-1 has provided
first aid to her, however, Dharam Das was
admitted her in hospital. On the next day,
Saroj Devi was taken away by her family
members from his hospital but Dharam Das
remained admitted there for two days and
he was discharged on 26.09.2008. He has
proved the entry of admission of Dharam
Das in Hospital as exhibit 65 Kha-1 and
prescription paper as exhibit 65 Kha-2.

27. In this case, the conviction of
accused-appellant is based on testimony of
PW-1 Veer Singh and PW-2 Krishna Devi,
who are parents of deceased, as well as the
dying declaration of deceased. It is not
disputed that marriage of deceased with
accused appellant has taken place on
20.02.2008 and that alleged incident took
place on the night of 24/25.09.2008 at the
matrimonial home of the deceased and that
deceased died of burns on 26.11.2008.

28. Before proceeding further, it will
be useful to state the basic ingredients of
Section 304-B IPC. The requirement of
Section 304-B is that the death of a woman
be caused by burns, bodily injury or
otherwise than in normal circumstances,
within seven years of her marriage. Further,
it should be shown that soon before her
death, she was subjected to cruelty or
harassment
by
her
husband
or
her
husband's family or relatives and thirdly,
that such harassment should be in relation
to a demand for dowry. Once these three
ingredients are satisfied, her death shall be
treated as a "dowry death" and once a
"dowry death" occurs, such husband or
relative shall be presumed to have caused
her death. Thus, by fiction of law, the
husband or relative would be presumed to
have committed the offence of dowry death
rendering them liable for punishment
unless the presumption is rebutted. It is not
only a presumption of law in relation to a
death but also a deemed liability fastened
upon the husband/relative by operation of
law. (vide Rajesh Bhatnagar vs. State of
Uttarakhand, (2012) 7 SCC 91).

29. A reading of section 304-B I.P.C.
would show that when a question arises
whether a person has committed the
offence of dowry death of a woman that all
that is necessary is it should be shown that
soon before her unnatural death, which
took place within seven years of the
marriage, the deceased had been subjected,
by such person, to cruelty or harassment for
or in connection with demand for dowry. If
that is shown then the court shall presume
that such a person has caused the dowry
death. It can therefore be seen that
irrespective of the fact whether such person
is directly responsible for the death of the
deceased
or
not
by
virtue
of
the
presumption, he is deemed to have
committed the dowry death if there were
such cruelty or harassment and that if the
unnatural death has occurred within seven
90 INDIAN LAW REPORTS ALLAHABAD SERIES
years from the date of marriage. Likewise
there is a presumption under Section 113-B
of the Evidence Act as to the dowry death.
It lays down that the court shall presume
that the person who has subjected the
deceased wife to cruelty before her death to
have caused the dowry death if it is shown
that soon before her death, such woman
had been subjected, by the accused, to
cruelty or harassment in connection with
any demand for dowry. It can therefore be
seen that irrespective of the fact whether
the accused has any direct connection with
the death or not, he shall be presumed to
have committed the dowry death provided
the other requirements mentioned above are
satisfied.(Hem Chand v. State of Haryana
reported in [(1994) 6 SCC 727])

30. In case of Kashmir Kaur Vs.
State of Punjab, AIR 2013 SC 1039,
Hon'ble Apex Court held that in a case of
trial
for
dowry
death
the
essential
ingredients to attract the provisions of
section 304-B I.P.C. for establishing
offence are (a) that soon before the death of
the deceased she was subjected to cruelty
and harassment in connection with the
demand of dowry, (b) the death of the
deceased woman was caused by any burn
or
bodily
injury
or
some
other
circumstance, which was not normal, (c)
such death occurs within seven years from
the date of her marriage, (d) that the victim
was subjected to cruelty or harassment by
her husband or any relative of her husband,
(e) such cruelty or harassment should be for
or in connection with demand of dowry,
and (f) it should be established that such
cruelty and harassment was made soon
before her death.

31. The necessary ingredients to
prove
the
offence
of
dowry
death
punishable under section 304-B IPC have
been discussed by the Hon'ble Apex Court
time and again. In case of Rajender Singh
Vs State of Punjab Criminal Appeal No.
2321 of 2009, decided on 26.02.2015, the
Hon'ble Apex Court held as under (para 9
& 10):

''9, The ingredients of the offence
under Section 304-B have been stated and
restated in many judgments. There are four
such ingredients and they are said to be:

(a) death of a woman must have
been caused by any burns or bodily injury
or her death must have occurred otherwise
than under normal circumstances;

(b)
such
death
must
have
occurred within seven years of her
marriage;

(c) soon before her death, she
must have been subjected to cruelty or
harassment by her husband or any relative
of her husband; and

(d) such cruelty or harassment
must be in connection with the demand for
dowry.

10, This has been the law stated
in the following judgments:

Ashok
Kumar
v.
State
of
Haryana, (2010) 12 SCC 350 at pages 360361; Bachni Devi & Anr. v. State of
Haryana, (2011) 4 SCC 427 at 431, Pathan
Hussain Basha v. State of A.P., (2012) 8
SCC 594 at 599, Kulwant Singh & Ors. v.
State of Punjab, (2013) 4 SCC 177 at 184185, Surinder Singh v. State of Haryana,
(2014) 4 SCC 129 at 137, Raminder Singh
v. State of Punjab, (2014) 12 SCC 582 at
583, Suresh Singh v. State of Haryana,
(2013) 16 SCC 353 at 361, Sher Singh v.
State of Haryana, 2015 1 SCALE 250 at
262.''

32. Keeping in view the position of
law, as discussed above, it may be stated
that in the instant matter, case of
10 All. Dharam Das Vs. State of U.P.
91
prosecution is that marriage of deceased
Saroj Devi with accused-appellant was
solemnised only about 7 months prior of
incident and that she died of burn injuries
after two months of incident. PW-1 Veer
Singh and PW 2 Krihna Devi, who father
and mother of the deceased, have stated
that in the marriage of deceased they have
given dowry articles as per their capacity
but after 6-7 days of marriage, when
deceased Saroj Devi came to her paternal
home, she has told that the family members
of her in-law's were harassing her on
account of dowry and they were demanding
a buffalo and Rs.40,000/- cash. The
evidence of PW-1 Veer Singh further shows
that after her marriage, deceased visited his
house for three times and she always told
that she was being harassed on account of
dowry. Similarly whenever PW-1 Veer
Singh used to visit her matrimonial home,
she used to tell that accused persons were
continuously harassing her for dowry. Both
the
witnesses
have
stated
that
on
25.09.2008 at 05:00 AM the deceased was
burnt by accused-appellant and his family
members and that after information, when
PW 1 Veer Singh reached there, he found
that his daughter was lying there in burnt
condition and all the family members of her
in-law's have fled away. PW-1 Veer Singh
took the deceased to Chayal Primary
Health Center and from there she died of
burn injuries on 26.11.2008. It is also the
case of prosecution that while the deceased
was being taken to the hospital by PW 1
Veer Singh, the deceased has told him that
her husband (accused-appellant) and his
family members have burnt her. Further
while the deceased was lying admitted in
SRN hospital, on 26.09.2008 her statement
was recorded by Sri Sudhir Kumar Mishra,
Additional City Magistrate, Allahabad,
which has been proved by PW-9 Smt Subha
Mishra as exhibit ka-15.

33. The trial court has based
conviction of accused-appellant Dharam
Das on dying declaration (exhibit ka-15) of
deceased as well the evidence of PW-1
Veer Singh and PW-2 Krishna Devi. It is
not disputed that marriage of deceased with
accused-appellant Dharam Das took place
on 20.02.2008 and that alleged incident of
burning the deceased took place on
25.09.2008 at her matrimonial home. It is
also not disputed that deceased succumbed
to burn injuries on 26.11.2008 in SRN
hospital. Thus deceased died of burn
injuries within 7 years of her marriage. As
stated earlier the conviction of accusedappellant Dharam Das is based on dying
declaration of deceased as well the
evidence of PW 1 Veer Singh and PW-2
Krishna Devi.

34. So far dying declaration of
deceased is
concerned, the case of
prosecution is that after the incident, father
of deceased (PW-1 Veer Singh) and his
family members reached at the matrimonial
home of his daughter Saroj Devi, where she
was lying in burnt condition and took her to
PHC Chayal and from where she was
referred to SRN hospital, Allahabad. PW-1
Veer Singh has further stated that when he
enquired from his daughter regarding, she
has told that her husband Dharam Das and
his family members have put her on fire by
pouring kerosene. It is further that the case
of prosecution that deceased was admitted
in SRN hospital and on 26.09.2008 her
statement was recorded by Sri Sudhir
Kumar Mishra, Additional City Magistrate,
Allahabad, which has been proved by PW-9
Smt Shubha Mishra as exhibit ka-15 by
way of secondary evidence. As Sri Sudhir
Kumar Mishra, the then Additional City
Magistrate, Allahabad has passed away, his
wife PW-9 Smt Shubha Mishra, who posted
in collectorate, Allahabad has proved
92 INDIAN LAW REPORTS ALLAHABAD SERIES
exhibit ka-15 by identifying his hand
writting and signature. Exhibit ka-15 reads
as under:

''c;ku ljkst nsoh iRuh /kje nkl mez
20 वर्ष fuokfluh (dk0QVk) Fkkuk djkjh ftyk
dkS'kkEchA

c;ku izjkEHk dk le; 1.00 PM.

eS ljkst nsoh iRuh /kje nkl vius iwjs
gks'k esa c;ku ns jgh gwWa fd esjh 'kknh dks yxHkx
5 ekg gks pqds gSA esjh dksbZ larku ugha gSA esjh
llqjky esa esjs ifr ,oa lkl gSA esjk ifr eq>s
cgqr ekjrk ihVrk gSA ijlks mlus eq>s cgqr ekjk
,oa esjs ऊपर मिट्टी dk rsy Mky dj eq>s tyk
fn;kA mlds igys mlus viuh eka ,oa HkkbZ dks
?kj ls fudky fn;k Fkk ckgj ls mu yksxks ds
fpYykus ij xkao okyksa us ?kj esa ?kql dj esjh vkXk
cq>kbZ ,oa esjs firk dks lwpuk nh rks eq>s vLirky
ysdj vk;sA

fu0 va0

eSaus Lo;a c;ku vafdr fd;kA c;ku
lEkkIr gksus dk le; 1.15 PM

g0 vi0

lqudj
rLnhd fd;k

lq/khj dqekj feJ

g0 vi0

vij uxj eftLVzsV

26.9.08

bykgkckn

1.15 PM''

35. Though the trial court has not
discussed the alleged first dying declaration
made by deceased to her father PW-1 Veer
Singh, however, PW 1 Veer Singh has
made a clear statement that deceased has
told him that her husband has put her on
fire by pouring kerosene and he again
stated that family members of accusedappellant were also involved in said
incident. Thus, there are two dying
declarations, first is oral dying declaration
made by deceased to her father (PW-1 Veer
Singh) and second was recorded by Sri
Sudhir Kumar Mishra, Additional City
Magistrate, Allahabad, which has been
proved by PW-9 Smt. Shubha Mishra as
exhibit ka-15.

36. The admissibility of dying
declaration has been explained under
Section 32 of Indian Evidence Act which
states that such a statement can be proved
when it is made by a person as to the cause
of his death, or as to any of the
circumstances of transaction which resulted
in his death. So far as the position of law
regarding dying declaration is concerned, it
is well settled that if the court is satisfied
that the dying declaration is true and made
voluntarily by the deceased, conviction can
be based solely on it, without any further
corroboration. It is neither a rule of law nor
of prudence that a dying declaration cannot
be relied upon without corroboration.
However, when a dying declaration is
suspicious, it should not be relied upon
without having corroborative evidence. The
court has to scrutinize the dying declaration
carefully
and
must
ensure
that
the
declaration is not the result of tutoring,
prompting or imagination. The deceased
must be in a fit state of mind to make the
declaration and must identify the assailants.
The principles relating to dying declaration
are no longer res integra and it would be
apposite to refer the decision of the Hon'ble
Apex Court in Paniben (Smt) v. State of
Gujarat (1992) 2 SCC 474, wherein the
concepts are summed up as follows:

(i) There is neither rule of law nor
of prudence that dying declaration cannot
be acted upon without corroboration.
Mannu Raja v. State of M.P., [1976] 2 SCR
764.

(ii) If the Court is satisfied that
the dying declaration is true and voluntary
it can base conviction on it, without
corroboration. State of M. P. v. Ram Sagar
10 All. Dharam Das Vs. State of U.P.
93
Yadav, AIR 1985 SC 416; Ramavati Devi v.
State of Bihar, AIR 1983 SC 164.

(iii) This Court has to scrutinise the
dying declaration carefully and must ensure
that the declaration is not the result of
tutoring, prompting or imagination. The
deceased had opportunity to observe and
identify the assailants and was in a fit state to
make the declaration. Ram Chandra Reddy v.
Public Prosecutor, AIR 1976 S.C. 1994.

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. Rasheed Beg
v. Sate of Madhya Pradesh, [1974] 4 S.C.C.
264.

(v) Where the deceased was
unconscious and could never make any dying
declaration the evidence with regard to it is to
be rejected. (Kake Singh v. State of M. P..,
AIR 1982 S.C. 1021)

(vi) A dying declaration which
suffers from infirmity cannot form the basis
of conviction. (Ram Manorath v. State of U.P.
1981 SCC (Crl.) 531).

(vii) Merely because a dying
declaration does not contain the details as to
the occurrence, it is not to be rejected. (State
of Maharashtra v.Krishnamurthi Laxmipati
Naidu, AIR 1981 SC 617).

(viii) Equally, merely because it is
a brief statement, it is not be discarded. On
the contrary, the shortness of the statement
itself guarantees truth. Surajdeo Oza v. State
of Bihar, AIR 1979 SC 1505)

(ix) Normally the court in order to
satisfy whether deceased was in a fit mental
condition to make the dying declaration look
up to the medical opinion. But where the eye
witness has said that the deceased was in a fit
and conscious state to make this dying
declaration, the medical opinion cannot
prevail. (Nanahau Ram and another v. State,
AIR SC912)

(x) Where the prosecution version
differs from the version as given in the dying
declaration, the said declaration cannot be
acted upon. (State U.P. v. Madan Mohan, AIr
1989 S.C. 1519) In the light of the above
principles, we will consider the three dying
declarations in the instant case and we will
ascertain the truth with reference to all dying
declaration made by the deceased Bai Kanta.
This Court in Mohan Lal v. State of
Maharashtra, AIR 1982, S.C. 839 referred to
held:

"Where there are more than the
statement in the nature of dying declaration,
one first in point of time must be preferred".

It was also observed that if the
plurality of dying declarations could be held
to be trust worthy and reliable, they have to
be accepted.

37. In case of Koli Chunilal Savji V
State of Gujrat AIR 1999 SC 3695, the
Hon'ble Apex Court held, that the ultimate
test is whether a dying declaration can be
held to be truthfully and voluntarily given,
and if before recording such dying
declaration, the officer concerned has
ensured that the declarant was in fact, in a
fit condition to make the statement in
question, then if both these aforementioned
conditions are satisfactorily met, the
declaration should be relied upon. (See
also: Baburam V State of Punjab, AIR 1998
SC 2808).

38. In case of Babulal v. State of
M.P.(2003) 12 SCC 490, it has been held
as under:-.

"7. ... A person who is facing
imminent death, with even a shadow of
continuing in this world practically nonexistent, every motive of falsehood is
obliterated. Then mind gets altered by most
powerful ethical reasons to speak only the
truth. Great solemnity and sanctity is
attached to the words of a dying person
94 INDIAN LAW REPORTS ALLAHABAD SERIES
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. The
maxim is "a man will not meet his Maker
with a lie in his mouth" (nemo moriturus
praesumitur mentiri). Mathew Arnold said,
"truth sits on the lips of a dying man". The
general principle on which the species of
evidence is admitted is that they are
declarations made in extremity, when the
party is at the point of death, and when
every hope of this world is gone, when
every motive to falsehood is silenced and
mind induced by the most powerful
consideration to speak the truth; situation
so solemn that law considers the same as
creating an obligation equal to that which is
imposed by a positive oath administered in
a court of justice."

39. Dealing with the relevancy of
dying declaration, Hon'ble the Apex Court
in the case of Laxman v. State of
Maharashtra
reported
in
MANU/SC/0707/2002
has
held
as
follows:-

"3. A dying declaration can be
oral or in writing and any adequate method
of communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced to
writing by someone like a Magistrate or a
doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence
of
a
Magistrate
absolutely
necessary, although to assure authenticity it
is usual to call a Magistrate, if available for
recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be made
to a Magistrate and when such statement is
recorded by a Magistrate there is no
specified statutory form for such recording.
Consequently, what evidential value or
weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case. What
is essentially required is that the person
who records a dying declaration must be
satisfied that the deceased was in a fit state
of mind. Where it is proved by the
testimony of the Magistrate that the
declarant was fit to make the statement
even without examination by the doctor the
declaration can be acted upon provided the
court ultimately holds the same to be
voluntary and truthful. A certification by
the doctor is essentially a Rule of caution
and therefore the voluntary and truthful
nature of the declaration can be established
otherwise."

40. In Atbir v. Government of NCT
of Delhi MANU/SC/0576/2010 : (2010) 9
SCC 1, the Hon'ble Apex Court, after
referring its earlier judgments, has laid
following
guidelines
with
regard
to
admissibility of the dying declaration:

''The analysis of the above
decisions clearly shows that: