# CASE DETAILS PARANAGOUDA AND ANOTHER v. THE STATE OF KARNATAKA AND ANOTHER

- **Citation:** 2023 INSC 933
- **Court:** Supreme Court of India
- **Decided:** 2023-10-19
- **Case number:** Criminal Appeal No. 3274 of 2023
- **Bench:** S. Ravindra Bhat, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-paranagouda-and-another-v-the-state-of-karnataka-and-another-37099
- **Pages:** 25

## Headnote

Issue for consideration: Whether the courts below were justifi ed
in convicting and sentencing the accused for the off ences punishable
u/ss. 498A, 304B read with s. 34 IPC and ss. 3 and 4 of Dowry Prohibition
Act; whether the conviction of the accused u/s. 304 B IPC would be
sustainable; and whether accused can be convicted for the off ence punishable
u/s. 306 IPC though not charged for said off ence.
Penal Code, 1860 - ss. 498A, 304B rw s. 34, 306 - Cruelty against
married women - Abetment of suicide - Accused-husband and in-laws
subjected the deceased-wife to such cruelty and harassment for dowry
demand as to drive her to commit suicide by self-immolation - Recording
of the dying declaration of the wife and thereafter she succumbed to her
burn injuries - Conviction of the accused for the off ences punishable u/
ss. 498A, 304B/34 and s. 3 and 4 of Dowry Prohibition Act and sentenced
accordingly - Justifi cation:
Held: Perusal of the dying declaration clearly suggests the same to be
genuine, true and the maker has stated the true story - Dying declaration
does not suggest that there was any proximate nexus to the act of committing
suicide on account of preceding dowry demand or the demand of dowry
on any particular date having triggered the deceased to commit the suicide
or forced her to self immolate - Proximate link not being available, the
conviction of the accused u/s 304B was improper and cannot be sustained
and is set aside - In the light of dying declaration having been accepted to
have been made by the deceased and the contents of the same disclosing
that she was mentally traumatized, unable to withstand the torture meted
924
SUPREME COURT REPORTS
[2023] 15 S.C.R.
out, which resulted in her committing suicide would suffi ce to convict the
accused for the off ence punishable u/s. 498A - It is this taunting or mental
torture which she could not withstand and forced her to commit suicide
by selfi mmolation - Thus, the accused persons are liable to be convicted
for the off ence punishable u/s. 306 though charge was not framed - As
regards, aged accused-in laws, in view of the period of sentence already
undergone, and not having any past history of criminal record, a lenient view
is taken while imposing the sentence - Judgment and order of conviction
passed by the courts below is modifi ed - Appellants are acquitted for the
off ences punishable u/s. 304B and ss. 3 and 4 of Dowry Prohibition Act
and convicted for the off ence punishable u/ss. 306 and 498A read with s.
34 and sentenced to imprisonment for the period already undergone with
fi ne - Dowry Prohibition Act - ss. 3 and 4. [Paras 13, 17, 19, 21, 29, 30]
Code of Criminal Procedure, 1973 - s. 215 - Eff ect of errors -
Conviction of an accused for an off ence with which he may not have
been specifi cally charged with - Permissibility - Accused having been
tried for the off ences punishable u/ss. 498A, 304B IPC and ss. 3 and 4
of DP Act, if can be convicted for the off ence punishable u/s. 306 IPC
though not charged for said off ence:
Held: Omission to frame charge does not disable the court from
convicting the accused for the off ence which is found to have been proved on
the evidence on record - On facts, from the statement of charge framed u/s.
304B and in the alternative s. 306, it is clear that all the facts and ingredients
for framing the charge for off ence u/s. 306 existed - Mere omission on the
part of the trial judge to mention s. 306 IPC with 498A would not preclude
this Court from convicting the accused for the said off ence when found
proved - In the charge framed u/s. 304B, it is clearly mentioned that dying
declaration of the deceased indicates that deceased was mentally traumatized
and she was unable to tolerate the torture and harassment meted out by
the accused person on account of which she committed suicide by self
immolation and as such non-framing of the specifi c charge would not be fatal
as no injustice is being caused to the accused - Thus, t

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[2023] 15 S.C.R. 923 : 2023 INSC 933
923
CASE DETAILS
PARANAGOUDA AND ANOTHER
v.
THE STATE OF KARNATAKA AND ANOTHER
(Criminal Appeal No. 3274 of 2023)
OCTOBER 19, 2023
[S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
HEADNOTES
Issue for consideration: Whether the courts below were justifi ed
in convicting and sentencing the accused for the off ences punishable
u/ss. 498A, 304B read with s. 34 IPC and ss. 3 and 4 of Dowry Prohibition
Act; whether the conviction of the accused u/s. 304 B IPC would be
sustainable; and whether accused can be convicted for the off ence punishable
u/s. 306 IPC though not charged for said off ence.
Penal Code, 1860 - ss. 498A, 304B rw s. 34, 306 - Cruelty against
married women - Abetment of suicide - Accused-husband and in-laws
subjected the deceased-wife to such cruelty and harassment for dowry
demand as to drive her to commit suicide by self-immolation - Recording
of the dying declaration of the wife and thereafter she succumbed to her
burn injuries - Conviction of the accused for the off ences punishable u/
ss. 498A, 304B/34 and s. 3 and 4 of Dowry Prohibition Act and sentenced
accordingly - Justifi cation:
Held: Perusal of the dying declaration clearly suggests the same to be
genuine, true and the maker has stated the true story - Dying declaration
does not suggest that there was any proximate nexus to the act of committing
suicide on account of preceding dowry demand or the demand of dowry
on any particular date having triggered the deceased to commit the suicide
or forced her to self immolate - Proximate link not being available, the
conviction of the accused u/s 304B was improper and cannot be sustained
and is set aside - In the light of dying declaration having been accepted to
have been made by the deceased and the contents of the same disclosing
that she was mentally traumatized, unable to withstand the torture meted
924
SUPREME COURT REPORTS
[2023] 15 S.C.R.
out, which resulted in her committing suicide would suffi ce to convict the
accused for the off ence punishable u/s. 498A - It is this taunting or mental
torture which she could not withstand and forced her to commit suicide
by selfi mmolation - Thus, the accused persons are liable to be convicted
for the off ence punishable u/s. 306 though charge was not framed - As
regards, aged accused-in laws, in view of the period of sentence already
undergone, and not having any past history of criminal record, a lenient view
is taken while imposing the sentence - Judgment and order of conviction
passed by the courts below is modifi ed - Appellants are acquitted for the
off ences punishable u/s. 304B and ss. 3 and 4 of Dowry Prohibition Act
and convicted for the off ence punishable u/ss. 306 and 498A read with s.
34 and sentenced to imprisonment for the period already undergone with
fi ne - Dowry Prohibition Act - ss. 3 and 4. [Paras 13, 17, 19, 21, 29, 30]
Code of Criminal Procedure, 1973 - s. 215 - Eff ect of errors -
Conviction of an accused for an off ence with which he may not have
been specifi cally charged with - Permissibility - Accused having been
tried for the off ences punishable u/ss. 498A, 304B IPC and ss. 3 and 4
of DP Act, if can be convicted for the off ence punishable u/s. 306 IPC
though not charged for said off ence:
Held: Omission to frame charge does not disable the court from
convicting the accused for the off ence which is found to have been proved on
the evidence on record - On facts, from the statement of charge framed u/s.
304B and in the alternative s. 306, it is clear that all the facts and ingredients
for framing the charge for off ence u/s. 306 existed - Mere omission on the
part of the trial judge to mention s. 306 IPC with 498A would not preclude
this Court from convicting the accused for the said off ence when found
proved - In the charge framed u/s. 304B, it is clearly mentioned that dying
declaration of the deceased indicates that deceased was mentally traumatized
and she was unable to tolerate the torture and harassment meted out by
the accused person on account of which she committed suicide by self
immolation and as such non-framing of the specifi c charge would not be fatal
as no injustice is being caused to the accused - Thus, the accused persons
liable to be convicted for the off ence punishable u/s. 306 though charge
was not framed - Penal Code, 1860 - ss. 304B, 306 - Dowry Prohibition
Act - ss. 3 and 4. [Paras 27, 29]
925
LIST OF CITATIONS AND OTHER REFERENCES
Salim Gulab Pathan v. State of Maharashtra (2012) 6 SCC 606; Atbir
v. Government (2010) 9 SCC 1; Kamlavva and Anr v. State of Karnataka
(2009) 13 SCC 614; Bansilal v. State of Haryana (2011) 11 SCC 359; Sher
Singh Alias Partapa v. State of Haryana (2015) 1 SCR 29; Dinesh Seth
v. State of NCT of Delhi (2008) 14 SCC 94; Dalbir Singh v. State of U.P.
(2004) 5 SCC 334; K. Prema S. Rao & Anr v. Yadla Srinivasa Rao and
Others (2003) 1 SCC 217 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3274 of 2023.
From the Judgment and Order dated 20.07.2022 of the High Court of
Karnataka Circuit Bench at Dharwad in CRLA No.2847 of 2012.
Appearances:
Ganesh Kumar R., Manjunath Meled, Sandeep Sharma, Mrs.
Vijayalaxmi Udapudi, Advs. for the Appellants.
Prateek K. Chadha, AAG, V. N. Raghupathy, Manendra Pal Gupta,
Sreekar A., Ms. Muskan Singla, Ms. Pragya Ganjoo, Shubhranshu Padhi,
Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
ARAVIND KUMAR, J.
1. Leave granted.
2. The judgment dated 20.07.2022 passed by High Court of Karnataka,
Dharwad Bench dismissing the Criminal Appeal No.2847 of 2012 by affi rming
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 off ences
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.
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER
926
SUPREME COURT REPORTS
[2023] 15 S.C.R.
FACTUAL BACKGROUND
3. The third daughter of the complainant (Shri Chandappa Gooli)
named Akkamahadevi was married to second respondent/accused No.1
herein on 16.05.2010. A complaint came to be lodged by Sri Chandappa
Gooli, father of the deceased on 20.12.2010 alleging thereunder that a dowry
of Rs. 31,000 and 1.5 tolas of gold was given at the time of marriage and
additional dowry of Rs. 50,000 and gold was demanded after two months
of marriage. 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 fi re. A dying declaration came to be recorded on 20.12.2010 and she
died on 24.12.2010 due to burn injuries. Initially FIR came to be registered
in Crime No.143 of 2010 for the off ences punishable under Section 323,
498A read with Section 34 of IPC and 504 of IPC and Sections 3 and 4
of the DP Act and on her death on 24.12.2010, Section 304B of IPC was
added. On completion of investigation charge-sheet came to be fi led and
the jurisdictional sessions judge took cognizance of the off ence alleged
against the accused persons namely husband-accused No.1 (R-2 herein),
appellant No's 1 and 2 herein (accused No.2 and 3) and Smt. Ningamma
accused No.4. On behalf of the prosecution, 32 witnesses were examined as
PW-1 to PW-32 and they got marked 50 documents as Ex.P-1 to P-50 and
three material objects as MO 1 to MO 3. On closure of prosecution side, the
accused were examined and their statements also came to be recorded under
section 313 of Cr.P.C. Accused No.4 (mother of accused No.3) had expired
on 28.02.2012 and as such the proceedings against her stood abated. After
hearing the learned Public Prosecutor and the learned advocates appearing
for accused No. 1 to 3, they came to be convicted for the off ences alleged
against them. 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 off ence under Section 304B, fi ve years of
simple imprisonment for the off ence under Section 3 of Dowry Prohibition
Act, one year of simple imprisonment for the off ence under Section 498A
r/w Section 34 of IPC and one year of simple imprisonment for the off ence
under Section 4 of Dowry Prohibition Act with fi ne of Rs. 1000 for each of
the off ences under Section 498A, 304B and Section 4 of DP Act for each
of the accused and in default to undergo further simple imprisonment for
927
a period of 3 months, and fi ne of Rs. 31,000 each for the off ence under
Section 3 of DP Act with default sentence of three months. All sentences
were ordered to run concurrently.
4. Being aggrieved by said judgment, appeal came to be preferred on
various grounds and primarily on the ground that deceased had suff ered
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 certifi ed 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.
5. The High Court by the impugned judgement having formulated
points for its consideration vide paragraph 18 of the impugned judgment,
has answered the points formulated, in favour of the prosecution and against
the accused by holding that dying declaration was recorded properly and
same is proved by taking into consideration the contents of the same and
the evidence of Tehsildar who recorded the same as well as the evidence
of Doctor PW-31 who treated the deceased and had issued Ex.P-46 (case
sheet of deceased Mahadevi). Hence, this appeal.
6. We have heard the arguments of the learned advocates appearing
for the parties. Learned advocate appearing for the appellants contends that
dying declaration is neither true nor voluntary statement of deceased as she
was not physically or mentally fi t to make any declaration and undisputedly
the parents of the deceased had not supported the case of the prosecution. He
would also contend that doctor who had examined the deceased and treated
her has clearly deposed that deceased was suff ering from breathlessness
when brought to the hospital and he had also certifi ed that she had suff ered
70 to 80% burn injuries and thereby making her physically and mentally
incapacitated to give any declaration or make any statement.
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
928
SUPREME COURT REPORTS
[2023] 15 S.C.R.
7. Per contra Shri V.N. Raghupathy, learned Standing Counsel
appearing for the State by supporting the judgment of both the courts would
submit that there is no cogent material to displace the fi ndings recorded
by the courts below. He would also contend that dying declaration cannot
be brushed aside merely because deceased had suff ered 70% to 80% burn
injuries and this cannot be a ground to set aside the conviction. He would
submit that Doctor PW-31 had deposed in clear terms that deceased was
mentally fi t to make statement and as such no doubt can be raised as regards
the mental capacity of the deceased to make statement wherein she had
assigned the reasons for her self-immolation. Hence, he prays for rejection
of the appeal.
DISCUSSION, FINDINGS AND CONCLUSION
8. The facts narrated hereinabove would suffi ce for examining as to
whether the orders of the courts below requires to be sustained or modifi ed
or set aside. Elaborate narration of factual aspects would only burden this
judgment and as such we desist from doing so, except to the extent required.
9. The solemnisation of marriage between second respondent and
Mrs. Akkamahadevi on 16.05.2010 is not in dispute. She having died on
24.12.2010 due to burn injuries sustained on 20.12.2010 is also not in
dispute.
 9.1 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.
9.2 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 ill-treatment 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
929
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 offi cer 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.
9.3 Dr. Pramod Mirji has been examined as PW-31 and he has stated
that deceased was conscious and she was complaining of pain. He has further
deposed to the following eff ect:
"The patient was conscious and she was complaining of pain. There
were burn injuries over entire body excepted face. The injured has burn
injuries of 70% -80%. The patient was in a position to speak. She was
under my treatment till she died on 24.12.2010 at about 5.15 a.m. Now
I see Ex.P-46 and it is Xerox copy of case sheet of the said injured.
In case sheet Ex.P-46 I have mentioned that the patient was under
agony due to pain and pulse not fi led and B.P. was not recordable and
therefore I have opined that general condition of patient was poor."
Perusal of his cross-examination would indicate that he had treated
the deceased for four days and the pulse rate and blood pressure was not
recorded on the day of admission and it is kept blank in the case sheet Ex.P46. He also admits that entries in the case sheet would refl ect that the general
condition of the deceased was poor. He further admits that blood pressure
of the deceased was not recordable and pulse was feeble. He further admits
that deceased was suff ering from breathlessness as per the entries found in
Ex.P-46 (case sheet). He has also admitted that even though patient was
conscious at times the patient had not been in a position to talk.
9.4 Dr. Mahalingappa Kori (PW32) who was CMO at Kumareshwar
Hospital, Bagalkot during the relevant period when the dying declaration
(Ex.P-45) was recorded has deposed that he was working as casualty
medical offi cer at the hospital on 20.12.2010 from 2:00 PM to 8:00 PM.
He has further deposed that Tahasildar (PW25) had expressed his intention
to record the dying declaration of injured Mahadevi and he had requested
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
930
SUPREME COURT REPORTS
[2023] 15 S.C.R.
him to be present at the time of recording of the statement. He states that he
examined Mahadevi at that time and she was conscious and in a condition to
speak. He also states that the statement of Mahadevi was recorded between
4:20 PM to 5:15 PM. He has identifi ed his endorsement and signature at
Ex-P45(b) on the dying declaration.
10. Taluka executive Magistrate Basappa Laxmappa Gothe PW-25 is
said to have recorded the dying declaration of the deceased as per Ex.P45, based on which the accused has been convicted by the trial court and
affi rmed by the High Court. PW25 who was the Tahasildar at Bagalkot
during the relevant period has deposed that he was working as Tahasildar
in Bagalkot from 08/07/2009 to 27/04/2011. He has deposed that Dr.
Mahalingappa Kori (PW32) was present when he recorded the statement of
Mahadevi from 4:20 PM to 5:15 PM. He further deposes that Dr. MC Kori
had talked to the deceased and found that she was in a fi t condition to give
statement. He further deposes that he was also convinced that Mahadevi
was fi t to give statement. He has identifi ed the statement recorded by
him as Ex-P45 and also the LTM of the deceased found in Ex-P45. He
has deposed that doctor was present throughout the time of recording of
statement and the signature & endorsement of the doctor marked as ExP45(b) has been identifi ed. PW25 had also conducted inquest panchnama
(Ex.P-1) & recorded the statement of Renavva Chandappa Guli (PW22)
and he has identifi ed his signature found on the statement of PW22 (Ex.
P40) as Ex.P-40(a). He has denied the suggestion that deceased Mahadevi
had not given any statement.
11. The learned Sessions judge has referred to the judgment of
this Court in the case of Salim Gulab Pathan vs. State of Maharashtra
(2012) 6 SCC 606 whereunder it has been held that dying declaration can
be the sole basis of conviction if it inspires full confi dence of the court.
Yet another judgment of this Court in the case of Atbir vs. Government
(2010) 9 SCC 1 which is to the same eff ect has also been relied upon by
the Sessions Judge to convict the accused, whereunder it has been held
that dying declaration can be the sole basis for conviction.
"(a) If it satisfi es the conscience of the court that deceased was in a
fi t state of mind at the time of making the statement and that it was
not a case of prompting or imagination;
931
(b) It is true and voluntary and no further corroboration is required;
(c) It is not suspicious."
It has also been observed therein that rule requiring corroboration is
merely a rule of prudence. If the dying declaration discloses that deceased
was unconscious or could never have made any statement, the conviction
cannot be sustained. Even non-mentioning of minute details cannot be a
ground to reject the said declaration and brief statement would suffi ce. If
the evidence on record would suggest that the deceased was not in a fi t
condition to make statement or declaration, the medical opinion cannot
prevail.
12. In the instant case, we notice from the facts that the deceased had
self-immolated. A plain reading of the dying declaration Ex.P-45 recorded
by PW-25 would indicate that reason for self-immolation by the deceased
was on account of her inability to tolerate the torture meted out by the
accused persons and she was not able to withstand the same and as such
she self-immolated in the agricultural land. The physical disability suff ered
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, this Court, in the case of Kamlavva And Anr Vs. State of
Karnataka (2009) 13 SCC 614 has held that even in circumstances where
the burn injuries was to the extent of 70% to 80% the dying declaration can
be accepted and it has been further held to the following eff ect.
"20. The next and the most vital issue which was raised is regarding
the admissibility of the dying declaration stated to have been made by
the deceased before her death. Before dealing with the factual aspect
of the dying declaration, it would be necessary to know the exact
legal position which has been laid down and reiterated by this Court
time and again.
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
932
SUPREME COURT REPORTS
[2023] 15 S.C.R.
21. The question as to admissibility of a dying declaration came
up before this Court in several cases. In Laxman v. State of
Maharashtra, wherein also a question regarding the admissibility
of the dying declaration was raised, the Constitution Bench held
that the Court must decide that the declarant was in a fi t state of
mind to make the declaration, but where the eyewitnesses' evidence
including the evidence of a Magistrate who had recorded the dying
declaration to that eff ect was available, mere absence of doctor's
certifi cation as to the fi tness of the declarant's state of mind, would
not ipso facto render the dying declaration unacceptable. It was
further held that the evidentiary value of such dying declaration
would depend upon the facts and circumstances of each particular
case.
22. In para 3 of the said judgment in Laxman case, this Court discussed
the juristic theory regarding acceptability of a dying declaration in the
following manner: (SCC p. 713)
"3. The juristic theory regarding acceptability of a dying declaration
is that such declaration is 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 the man is induced by the most
powerful consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the weight to be
given to this species of evidence on account of the existence of many
circumstances which may aff ect their truth. The situation in which a
man is on the deathbed is so solemn and serene, is the reason in law
to accept the veracity of his statement."
23. The Constitution Bench in Laxman case also referred to an earlier
decision of this Court in Koll Chunilal Savjl v. State of Gujarat wherein
it was held that the ultimate test with regard to the admissibility of a
dying declaration is whether the dying declaration can be held to be
a truthful one and voluntarily given. In the said decision it was also
held that before recording the declaration, the offi cer concerned must
fi nd that the declarant was in a fi t condition to make the statement.
The aforesaid ratio of Koli Chunilal Savji case was affi rmed by the
Constitution Bench in Laxman case1.
933
24. In Vikas v. State of Maharashtra this Court elaborately discussed
the previous relevant decisions governing the legality of dying
declaration and observed in para 45 as follows: (SCC pp. 529-30)
45. The Court, referring to earlier case law, summed up principles
governing dying declaration as under: (Paniben case, SCC pp. 48081, para 18)
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration.
(ii) If the court is satisfi ed that the dying declaration is true and
voluntary it can base conviction on it, without corroboration.
(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 fi t state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon
without corroborative evidence.
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suff ers from infi rmity cannot form the
basis of conviction.
(vii) Merely because a dying declaration does not contain the details
as to the occurrence, it is not to be rejected.
(vii) Equally, merely because it is a brief statement, it is not to be
discarded.
On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy itself whether the deceased
was in a fi t mental condition to make the dying declaration look up
to the medical opinion. But where the eyewitness has said that the
deceased was in a fi t and conscious state to make this dying declaration,
the medical opinion cannot prevail.
(x) Where the prosecution version diff ers from the version as given
in the dying declaration, the said declaration cannot be acted upon.
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
934
SUPREME COURT REPORTS
[2023] 15 S.C.R.
25. After referring to the decision of this Court in Khushal Rao v. State
of Bombay, this Court in Vikas reiterated the legal position that where
a dying declaration is recorded by a competent Magistrate, it would
stand on a much higher footing inasmuch as a competent Magistrate
has no axe to grind against the person named in the dying declaration
of the victim and in absence of circumstances showing anything to the
contrary, he should not be disbelieved by the court."
13. 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. There is no prescribed format for recording the dying declaration.
The perusal of the dying declaration in the instant case clearly suggests
the same to be genuine and the maker has stated the true story. On going
through the same, it appears to our mind as it appeared to the trial court and
the High Court to be genuine, true and not tainted with doubt or shrouded
with mystery. The contents of the dying declaration Ex.P-45 suggests the
possible explanation of the occurrence of the incident and it also appears
to be the truthful version of the maker.
14. 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 satisfi ed for convicting an accused for
the off ence punishable under Section 304B are:
"(i) The death of a woman should be caused by burns or bodily injury
or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her
marriage.
(iii) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.
935
(iv) Such cruelty or harassment should 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."
15. This Court in the case of Bansilal vs. State of Haryana (2011) 11
SCC 359 has held that, to attract the provision of Section 304B of the IPC,
one of the main ingredients of the off ence which is required to be established
is that "soon before her death", she was subjected to cruelty and harassment
"in connection with the demand of dowry". It has been further held:
"20. Therefore, in case the essential ingredients of such death have
been established by the prosecution, it is the duty of the court to raise a
presumption that the accused has caused the dowry death. It may also
be pertinent to mention herein that the expression "soon before her
death" has not been defi ned in either of the statutes. Therefore, in each
case, the Court has to analyse the facts and circumstances leading to
the death of the victim and decide if there is any proximate connection
between the demand of dowry and act of cruelty or harassment and the
death. (Vide T. Aruntperunjothi v. State ; Devi Lal v. State of Rajasthan;
State of Rajasthan v. Jaggu Ram ; Anand Kumar v. State of M.P. and
Undavalli Narayana Rao v. State of A.P."
16. In Sher Singh Alias Partapa vs State of Haryana (2015) 1 SCR 29
it has been held:
"16. As is already noted above, Section 113-B of the Evidence Act
and Section 304-B IPC were introduced into their respective statutes
simultaneously and, therefore, it must ordinarily be assumed that
Parliament intentionally used the word "deemed" in Section 304-B to
distinguish this provision from the others. In actuality, however, it is
well-nigh impossible to give a sensible and legally acceptable meaning
to these provisions, unless the word "shown" is used as synonymous
to "prove" and the word "presume" as freely interchangeable with the
word "deemed". In the realm of civil and fi scal law, it is not diffi cult
to import the ordinary meaning of the word "deem" to denote a set of
circumstances which call to be construed contrary to what they actually
are. In criminal legislation, however, it is unpalatable to adopt this
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
936
SUPREME COURT REPORTS
[2023] 15 S.C.R.
approach by rote. We have the high authority of the Constitution Bench
of this Court both in State of Travancore-Cochin v. Shanmugha Vilas
Cashewnut Factory [AIR 1953 SC 333] and State of T.N. v. Arooran
Sugars Ltd. [(1997) 1 SCC 326], requiring the Court to ascertain the
purpose behind the statutory fi ction brought about by the use of the
word "deemed" so as to give full eff ect to the legislation and carry it to
its logical conclusion. We may add that it is generally posited that there
are rebuttable as well as irrebuttable presumptions, the latter oftentimes
assuming an artifi ciality as actuality by means of a deeming provision.
It is abhorrent to criminal jurisprudence to adjudicate a person guilty
of an off ence even though he had neither intention to commit it nor
active participation in its commission. It is after deep cogitation that
we consider it imperative to construe the word "shown" in Section
304-B IPC as to, in fact, connote "prove". In other words, it is for
the prosecution to prove that a "dowry death" has occurred, namely,
(i) that the death of a woman has been caused in abnormal circumstances
by her having been burned or having been bodily injured,
(ii) within seven years of her marriage,
(iii) and that she was subjected to cruelty or harassment by her husband
or any relative of her husband,
(iv) in connection with any demand for dowry, and
(v) that the cruelty or harassment meted out to her continued to have
a causal connection or a live link with the demand of dowry.
We are aware that the word "soon" fi nds place in Section 304-B; but we
would prefer to interpret its use not in terms of days or months or years,
but as necessarily indicating that the demand for dowry should not be
stale or an aberration of the past, but should be the continuing cause
for the death under Section 304-B or the suicide under Section 306
IPC. Once the presence of these concomitants is established or shown
or proved by the prosecution, even by preponderance of possibility,
the initial presumption of innocence is replaced by an assumption of
guilt of the accused, thereupon transferring the heavy burden of proof
upon him and requiring him to produce evidence dislodging his guilt,
beyond reasonable doubt. It seems to us that what Parliament intended
937
by using the word "deemed" was that only preponderance of evidence
would be insuffi cient to discharge the husband or his family members
of their guilt. This interpretation provides the accused a chance of
proving their innocence. This is also the postulation of Section 101
of the Evidence Act. The purpose of Section 113-B of the Evidence
Act and Section 304-B IPC, in our opinion, is to counter what is
commonly encountered-the lack or the absence of evidence in the
case of suicide or death of a woman within seven years of marriage. If
the word "shown" has to be given its ordinary meaning then it would
only require the prosecution to merely present its evidence in court, not
necessarily through oral deposition, and thereupon make the accused
lead detailed evidence to be followed by that of the prosecution.
This procedure is unknown to common law systems, and beyond the
contemplation of CrPC."
17. In the instant case as noticed hereinabove, the parents of the
deceased and other witnesses who had recorded their statement before the
I.O. with regard to alleged demand of dowry have retraced their steps or
in other words have turned hostile and have not supported the prosecution
and have denied of having made any such statement before police. Be
that as it may. 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.
18. 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 off ences 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 fi rst part would relate to
subjecting a married woman to cruelty for any willful conduct which is of
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
938
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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.
19. In Dinesh Seth v State of NCT of Delhi (2008) 14 SCC 94,
this Court has examined the width and scope of two Sections i.e., 304B &
498A and was held to be diff erent. Section 304B deals with cases of death
as a result of cruelty or harassment within 7 years of marriage. Whereas
Section 498A has a wider spectrum and it covers all cases in which the wife
is subjected to cruelty by her husband or relative of the husband which may
result in death by way of suicide or cause grave injury or danger to life,
limb or health (whether mental or physical) or even harassment caused
with a view to coerce the woman or any person related to her to meet any
unlawful demand of property or valuable security. We have already discussed
hereinabove as to there being no nexus for the deceased to self-immolate
herself on account of such demand having preceded immediately before
her death. As such we have opined that convicting the accused/appellants
under Section 304B was improper or the prosecution had failed to establish
that the death had occurred and soon before her death she was subjected to
cruelty or harassment by the appellants.
20. It has been held in Dinesh Seth's (Supra) Case
"24. Section 498-A was added to IPC by amending Act 46 of 1983
in the backdrop of growing menace of dowry related cases in which
the women were subjected to cruelty and harassment and were forced
to commit suicide. This section lays down that if the husband or his
relative subjects a woman to cruelty, then he/she is liable to be punished
with imprisonment for a term which may extend to three years and shall
also be liable to fi ne. Explanation appended to this section defi nes the
term "cruelty" to mean any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical)
of the woman; or harassment of the woman where such harassment is
939
with a view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.
25. After three years, Section 304-B was inserted by amending Act 43
of 1986 to deal with cases involving dowry deaths occurring within
seven years of marriage. Sub-section (1) of Section 304-B IPC lays
down that 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 death. By virtue of
Explanation appearing below sub-section (1), the word "dowry" used
therein carries the same meaning as is contained in Section 2 of the
Dowry Prohibition Act, 1961.
26. The ingredient of cruelty is common to Sections 304-B and 498-A
IPC, but the width and scope of the two sections is diff erent, inasmuch
as Section 304-B deals with cases of death as a result of cruelty or
harassment within seven years of marriage, Section 498-A has a wider
spectrum and it covers all cases in which the wife is subjected to cruelty
by her husband or relative of the husband which may result in death by
way of suicide or cause grave injury or danger to life, limb or health
(whether mental or physical) or even harassment caused with a view
to coerce the woman or any person related to her to meet unlawful
demand for property or valuable security."
21. Section 498A having a wider scope, it will have to be examined as
to whether the accused is to be convicted for the off ence punishable under
Section 498A or in other words, the order of conviction passed by Sessions
Court and affi rmed by High Court deserves to be affi rmed, notwithstanding
the conviction under Section 304B having been set aside. Irrespective of
the fact that accused have been acquitted for the off ence punishable under
Section 304B, Section 498A would cover the cases in which the wife is
subjected to cruelty by husband or relatives of the husband which may
result in death by way of suicide or cause grave injury or danger to life,
PARANAGOUDA AND ANOTHER v. THE STATE OF
KARNATAKA AND ANOTHER [ARAVIND KUMAR, J.]
940
SUPREME COURT REPORTS
[2023] 15 S.C.R.
limb or health (whether mental or physical). 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 suffi ce to convict
the accused for the off ence punishable under Section 498A.
22.