Kashmira Devi vs The State Of Uttarakhand on 28 January, 2020


Supreme Court of India

Kashmira Devi vs The State Of Uttarakhand on 28 January, 2020

Author: A.S. Bopanna

Bench: R. Banumathi, A.S. Bopanna

                                                                 REPORTABLE


                                   IN THE SUPREME COURT OF INDIA

                                  CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO. 724 OF 2019


                         Kashmira Devi                            .…Appellant(s)


                                                  Versus


                         State of Uttarakhand & Ors.           …. Respondent(s)


                                           JUDGMENT

A.S. Bopanna,J.

1. The instant appeal has been filed by the appellant

assailing the impugned judgment and final order dated

29.06.2017 and 10.07.2017, passed by the High Court of

Judicature at Nainital in Government Appeal No. 42 of

2010, whereby the High Court has allowed the appeal

Signature Not Verified
filed by the Respondent and set aside the acquittal of
Digitally signed by
MAHABIR SINGH
Date: 2020.01.28
15:58:26 IST
Reason:

appellant passed by the trial court and convicted the

Page 1 of 30
appellant for the charges under Sections 304­B and 498­

A IPC.

2. The case of the prosecution in brief is that the

marriage between deceased/ Urmila @ Guddi and

Proforma Respondent No.3/Jagdish Singh was

solemnized four years back. At the time of the marriage

dowry was given by parents of the deceased as per their

financial capacity; despite the same the husband and in­

laws of the deceased were not satisfied. Whenever

deceased used to visit her paternal house, she used to

complain about the harassment and brutal beating by

her husband, father in law, mother in law i.e.

Appellant/Kashmira Devi, brother of husband and

brother’s wife for non­fulfilment of demands for dowry, to

PW­1/ Rajeshwari/ Mother of the deceased. In November,

2007 the deceased was severely beaten and harassed by

the accused persons. Due to the ill treatment of her in­

laws she came back to her parental house. PW1 and her

husband/PW­3 sent her back on 02.02.2008 to the

matrimonial house by stating that they are very poor and

in no position to fulfil the demands of the accused

Page 2 of 30
persons. On 08.02.2008, PW1 through the news spread

amongst the villagers received information that the

deceased was burnt, thereafter she called the in­laws of

her daughter to inquire about the incident, when she was

told by Proforma Respondent No 3 that she was burnt

due to stove burst. Immediately PW1 along with all her

family members reached the base hospital to see the

condition of deceased and on inquiring about how her

daughter was burnt, accused persons instead of giving a

satisfactory answer used derogatory words and started

threatening them and also told deceased to say on

inquiry by anybody that she has got burnt by stove. On

14.02.2008 deceased succumbed to her injuries. On

15.02.2008, PW1/Rajeshwari/Mother of the deceased

filed an application under Section 156(3) of the Cr.P.C.

3. The statement of the deceased was recorded by

DW1/Darshani Devi on the first day after the incident

wherein deceased stated that all of a sudden, the stove

burst, oil spilled and caught fire. She had also stated that

no one was responsible for the incident. On 07.02.2008,

Page 3 of 30
second dying declaration was recorded by the Tehsildar

wherein she stated that the stove exploded and her saree

caught fire. The last dying declaration was recorded by

PW­5/ Shishpal Singh/ Additional Tehsildar on

13.2.2008 wherein the deceased has stated that there

was quarrel between her and her mother in

law/appellant and in the course of quarrel her mother­in­

law set her ablaze and none of the others had any

involvement.

4. FIR No.2 of 2008 was registered on 29.02.2008

against the accused persons. The investigation of the

offence was taken up by PW8 and later on by

PW9/Devendra Singh who recovered clothes and stove

from the spot. Body of the deceased was sent to the

hospital for post­mortem which was conducted by PW6/

Dr. R.K. Tamta and in the post­mortem report he stated

that severe burn injuries were present on approximately

55% of the body including head, face, neck, breast, left

hand and right hand from front and back side. On

internal examination of the body it was found that the

membrane of the head was congested. In his opinion the

Page 4 of 30
cause of the death was septicaemia due to the ante

mortem burn injuries. After completion of the

investigation, charge sheet was filed under Sections 304­

B and 498­A of IPC. The appellant pleaded not guilty and

claimed to be tried. The prosecution examined as many

as 9 witnesses to bring home the guilt of the accused and

accused produced two witnesses.

5. Upon consideration of the evidence, the trial court

acquitted appellant and the other accused persons for the

charges under Section 304­B and 498­A IPC stating that

the prosecution has failed to prove the case against the

accused persons beyond reasonable doubt. Trial court

noted that on 07.02.2008 on the application of the SHO,

dying declaration of the deceased was recorded by the

Tehsildar but the said dying declaration has not been

proved by the prosecution. Court held that there are

three dying declarations of the deceased, hence the dying

declarations have become dubious. It held that at the

time of the incident only the father in law and the mother

in law of the deceased were at home and none of the

family members were present at home. All the witnesses

Page 5 of 30
examined by the prosecution belong to the parents’ place

of the deceased, but were not present on the spot. The

witness DW2/Dalveer Singh is the spot witness but he

has not been examined by the prosecution and has

rather been examined by the defence, who deposed that

deceased caught fire from stove. So far as the question of

dowry is concerned no prior complaint in this regard has

ever been filed by the parents of the deceased. Regarding

the FIR, court held that it has been lodged on the

instruction of the husband of PW1 with much delay and

only after due deliberations, on seeking legal advice. The

Investigating officer has shown in the site map of the spot

that the saree caught fire from the stove.

6. Being aggrieved by the order dated 25.02.2010, an

appeal was filed by the State of Uttarakhand, whereby

High Court set aside the order passed by the Trial Court

and convicted appellant under Section 304­B read with

Section 498­A of the IPC and sentenced her to undergo

imprisonment for life and to pay fine of Rs. 10,000 for the

offence under Section 304­B and in default of payment of

fine, to undergo rigorous imprisonment for six months.

Page 6 of 30
However, in view of the judgment in Smt. Shanti and

Anr. Vs. State of Haryana AIR 1991 SC 1226, though

appellant was convicted u/s 498­A IPC, no separate

sentence was awarded in view of the fact that substantive

sentence was awarded for major offence u/s 304­B IPC.

7. The High Court noted that statement of deceased

was recorded firstly on 06.02.2008 wherein she deposed

that all of a sudden, the stove burst, oil spilled and

caught fire. She had also stated that no one was

responsible for the incident. This statement was signed

by members of the Gram Panchayat but they were not

examined. DW­1 though examined, in her cross­

examination deposed that she did not know who has

written this statement on 06.02.2008/Ex. B­1. The court

held that this document does not inspire confidence. The

second statement was recorded on 07.02.2008 by the

Tehsildar in which also she stated that the stove

exploded and her saree caught fire. She put right thumb

impression on the statement. The last statement was

recorded on 13.02.2008 by PW­5. The death of deceased

was due to burn injuries which are verified by the doctor.
Page 7 of 30
Court further noted that dying declaration made on

13.02.2008 is natural, voluntary and without any

influence. When statements were recorded on 06.02.2008

and 07.02.2008, the accused persons were present in the

room. However, on 13.02.2008, parents of the deceased

were also there and she gave statement without any fear.

Deceased made specific allegation against appellant

which cannot be termed as tutored. Further the High

Court held that in case the deceased did not die

unnatural death, it was expected that in­laws would

inform the parents of the deceased, which was not done

in this case. As regards the delay in lodging FIR, the

court opined that the foremost anxiety of the family

members was to look after the deceased instead of

lodging FIR. When the deceased died on 14.02.2008,

immediately after that on 15.02.2008 complaint was

lodged and FIR was registered. Thus, there was no

inordinate delay in filing the FIR. PW­9 has deposed that

the stove did not burst and the same was taken into

possession. There is close proximity between demand of

dowry for which deceased was harassed and tortured by

Page 8 of 30
her in­laws and her death. With these findings, the High

Court allowed the appeal filed by the respondent and set

aside the order of acquittal passed by the trial court and

convicted them.

8. In appeal before us, appellant has contended that

the High Court erred in ignoring that the prosecution

failed to present any material to rule out the possibility of

an accidental death so as to bring it within the purview of

the ‘Death occurring otherwise than in normal

circumstances’ as required under Section 304­B of IPC

and further failed in establishing the fact that soon before

the occurrence there was cruelty/harassment in relation

to dowry demand and to bring on record any reliable

evidence of a subsisting dowry demand. Further the High

Court erred in ignoring the fact that the parents of the

deceased never made an attempt to report that there was

a demand for dowry to the police or the elders of the

locality and the fact that the allegation regarding dowry

was made for the first time on 15.02.2008 while the

incident took place on 06.02.2008. It is also contended

by the appellant that High Court erred in convicting the

Page 9 of 30
accused by reversing the judgment of acquittal of the

appellant even though the same was based on reasonable

and plausible grounds and in ignoring the evidences

brought on record and the credibility of the prosecution

witnesses. It is also submitted by the appellant that the

High Court erred by relying on the three­dying

declarations of the deceased in isolation and failed to

consider the possibility that the third dying declaration of

the deceased was a result of being brainwashed by her

parents. It is the contention of the appellant that error

was committed by the Court in bringing the case within

the ambit of the Section 113­B of the Indian Evidence Act

by proceeding under the presumption arising under

Section 304­A and 113­B of the Indian Evidence Act.

9. On the other hand in the counter affidavit filed by

the Respondents they have submitted that the High

Court properly appreciated the statement of the deceased

made on 13.02.2008 wherein the deceased supported the

prosecution case and also evidence of PW5 and

accordingly convicted and sentenced the appellant u/s

304­B and 498­A IPC by stating that dying declaration is

Page 10 of 30
acceptable even in the absence of the other corroborative

evidence. It was further submitted that the High Court

has applied correct position of law before convicting the

appellant under Section 304­B by discussing the

applicability of Section 304­A and Section 113­B of the

Evidence Act relying on the judgment of Sanjay Kumar

Jain Vs State Of Delhi (2011) 11 SCC 733 and holding

that deceased died within seven years of marriage and

she was subjected to cruelty and harassment by her

husband and relatives for bringing insufficient dowry and

further in holding that accused persons including the

appellant had failed to rebut the presumption under

Section 113­B of the Evidence Act. It is further submitted

by the Respondent that deposition of PW1, PW2 and PW3

clearly establish the fact that deceased was subjected to

cruelty by her in­laws in bringing insufficient dowry and

on various occasion she has told it to her parents. On the

contention of the dying declaration it is submitted that

the High Court had rightly held that dying declaration

made on 13.02.2008 is only found to be trustworthy after

Page 11 of 30
assessing each dying declaration relying on the ratio of

the judgment Ashabai and Another Vs State of

Maharashtra (2013) 2 SCC 224 wherein it was held

that when there are multiple dying declarations, each

dying declaration has to be assessed independently on its

own merits as evidentiary value and one cannot be

rejected solely because of certain variations in another

declaration. It was further submitted that the High Court

has rightly held that the prosecution has proved its case

beyond reasonable doubt on the basis of the material on

record and evidence of material witnesses. Respondents

have further submitted that in the present case trial

court acquitted the accused persons without any cogent

reason and the High Court as First Appellate Court re­

appreciated and scanned the evidences and passed a

well­reasoned judgment whereby the appellant has been

appropriately convicted.

10. Heard Shri Aakash Sirohi, learned counsel for the

appellant, Dr. Rajiv Nanda, learned counsel for the

respondent State and perused the appeal papers.

Page 12 of 30

11. As noticed the learned Sessions Judge by the

judgement dated 25.03.2010 in Sessions Trial No.13/2008

had acquitted the appellant herein and the other co­

accused of the charge alleged against them under Section

304­B and 498­A of IPC. The High Court having re­

appreciated the evidence and having considered the

matter in its entirety has convicted Jagdish Singh, the

husband of the deceased and Govind Singh and Mahendra

Singh, the father­in­law and brother­in­law of the

deceased under Section 498­A IPC. The appellant

Kashmira Devi, mother­in­law of the deceased is convicted

under Section 304­B IPC and sentenced to undergo

imprisonment for life and pay a fine of Rs.10,000/­, in

default to undergo rigorous imprisonment for six months.

In respect of the conviction against the appellant under

Section 498­A no separate sentence is awarded. While

arriving at the conclusion the High Court in addition to

the other evidence available on record has also referred to

the dying declaration recorded on 13.02.2008. In the said

dying declaration the deceased Urmila @ Guddi had stated

that the appellant, her mother­in­law had gone to the

Page 13 of 30
room and started quarrelling with her. She poured the

bottle of kerosene kept in the room on her clothes and

started quarrelling with her, during which time she

torched her. The other evidence available on record

related to the demand of dowry to which the other accused

were also a party and, in that light, insofar as the death

caused, the deceased had not made any allegation relating

to death against the other accused. All the accused were

convicted under Section 498­A of IPC and the appellant

was convicted under Section 304­B as well, since the

deceased had held her responsible for her death.

12. The learned counsel for the appellant while

assailing the judgment passed by the High Court has

referred to the judgment passed by the Sessions Court

wherein based on the same evidence available on record

the Sessions Court had arrived at the conclusion that the

charge against the accused was not proved beyond

reasonable doubt. The learned counsel would further

contend that the High Court has committed a serious

error in discarding the earlier two dying declarations dated

Page 14 of 30
06.02.2008 and 07.02.2008 wherein the deceased had

categorically stated that the appellant nor her family

members were responsible but it was an accident due to

stove burst. In that light it was contended that the dying

declaration dated 13.02.2008 is not reliable and the same

was required to be discarded. It is contended that the

dying declaration dated 07.02.2008 was recorded by the

Tehsildar based on the request made as per procedure.

Hence it is contended that the very approach adopted by

the High Court was erroneous and the judgment is liable

to be set aside and restore the judgment passed by the

Sessions Court.

13. The learned counsel for the State however seeks to

sustain the judgment passed by the High Court. It is

contended that the Sessions Court in fact had proceeded

at a tangent and arrived at a wrong conclusion which is

contrary to the well­established legal position. In the

instant facts a young lady aged about 22 years was killed

for non­fulfilling the dowry demand. The incident had

occurred within the statutory period of seven years from

Page 15 of 30
the date of marriage and there was sufficient evidence

available on record to indicate the demand for dowry

immediately prior to the death. In that circumstance

while the death had occurred, a presumption had arisen

as contemplated under Section 304­B of IPC and Section

113­B of the Evidence Act. The ingredients, therefore, had

been satisfied and it was for the appellant to dispel the

presumption, which they have failed to do and, in that

circumstance, the High Court having referred in detail to

the legal position and the evidence available on record has

arrived at its conclusion which does not call interference.

14. In the instant case the undisputed position is that

the deceased Urmila @ Guddi was given in marriage to one

of the accused Jagdish Singh. The marriage was

performed about four years prior to the date of the

incident which occurred on 06.02.2008 and the death on

14.02.2008. Since the complaint against the accused was

for demand of dowry and the death being caused for non­

fulfilment of the same, the sequence which occurred

leading to the demand of dowry as well as the death is to

Page 16 of 30
be noticed at the outset. In that regard the mother of the

deceased Rajeshwari Devi was examined as PW1. She had

stated with regard to the marriage and that her daughter

was being harassed by her in­laws for taking insufficient

dowry. The articles that were given at the time of the

marriage were also referred and it was stated by her that

her daughter came back to the parental house stating that

her husband and the in­laws were demanding dowry. The

father of the deceased was working at Delhi and as such

the mother of deceased informed him about the demand.

He returned to the village from Delhi after a couple of days

and went along with his daughter Urmila to her in­laws.

The incidents that occurred there are referred and also the

daughter being beaten and being injured in the eye was

referred. Immediately thereafter on 06.02.2008 she heard

from other villagers that her daughter was burnt.

Thereafter though she went and saw her daughter in the

Base Hospital, Srinagar she was not allowed to accompany

her daughter when she was shifted from the said hospital

to Doon hospital in Dehradun.

Page 17 of 30

15. In that circumstance she thereafter went to that

place after her husband had reached. She had stated that

when she initially went to Srinagar Hospital her daughter

was surrounded by the accused and was not being allowed

to speak to PW1, the mother. However subsequently

when she visited her daughter on 13.02.2008 she was able

to interact with the daughter who had at that stage

informed her that her mother­in­law was responsible for

her death as she had poured kerosene and burnt her. The

father of the deceased was examined as PW3 who has also

spoken with regard to the same in a manner to

corroborate the version of PW1, the mother. PW2, Bheem

Raj Singh who was examined as a witness being the uncle

has stated with regard to PW1 having told him about the

harassment caused by the in­laws of the deceased

demanding for dowry and about the ultimate death. He

has stated that whenever she went home, the deceased

used to complain about her in­laws. PW4, Smt. Geeta

Devi, a close relative of the deceased has also spoken in

the same terms. The evidence of PW1 to PW4 would

indicate that the same would not only establish the

Page 18 of 30
ingredients of Section 498­A IPC where there was a

demand for dowry but would also satisfy the ingredients of

Section 304B IPC relating to the cruelty and harassment

being caused soon before her death and the same being in

connection with the demand for dowry. Therefore, insofar

as the conviction ordered by the High Court under Section

498­A of IPC the same is justified.

16. Insofar as the death having occurred and the

appellant being convicted under Section 304B of IPC, in

addition to the said evidence available on record the High

Court has relied on the dying declaration dated

13.02.2008. As noticed, there are three dying declarations

of deceased Urmila @ Guddi – one recorded on 06.02.2008

by DW­1­Darshani Devi, Chairman, Mahila Mangal Dal;

second recorded on 07.02.2008 by Tehsildar, Srinagar;

and the third recorded on 13.02.2008 by PW­5­Shispal

Singh Rawat, Additional Tehsildar by which time, the

parents of deceased Urmila had also come. In the dying

declarations recorded on 06.02.2008 and 07.02.2008,

deceased Urmila had stated that due to excessive pumping

Page 19 of 30
of stove, the stove exploded and she caught fire and

sustained burn injuries and at that time, her father­in­law

and mother­in­law i.e. the accused were on the second

floor. In the third dying declaration recorded on

13.02.2008, deceased Urmila stated that on 06.02.2008 at

about 07:00 p.m., appellant Kashmira Devi, her mother­

in­law came to her room and started quarrelling with her

and thereafter, her mother­in­law poured kerosene oil on

her clothes and set her on fire. Deceased further stated

that except her mother­in­law, no one was responsible for

the incident.

17. When dying declarations of deceased Urmila were

recorded on 06.02.2008 and 07.02.2008, accused were

present in the room. However, by the time when her third

dying declaration was recorded on 13.02.2008, parents of

deceased Urmila had come and deceased had given the

statement without any fear of the accused. On the very

next day i.e. on 14.02.2008, deceased died and on

15.02.2008, PW­1­Rajeshwari Devi, mother of deceased

filed a complaint under Section 156(3) Cr.P.C. before the

Page 20 of 30
Chief Judicial Magistrate, Rudraprayag. On 29.02.2008,

FIR in Crime Case No.2 of 2008 was registered under

Sections 498­A and 304B IPC against all the accused.

Since it has come in evidence that at the time of recording

dying declarations on 06.02.2008 and 07.02.2008, her in­

laws were present, it cannot be said that the statement

was recorded voluntarily and without fear.

18. The appellant is convicted under Sections 498­A

IPC and 304B IPC – dowry death. For sustaining the

conviction under Section 304B IPC, the following

essentials must be satisfied: ­

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

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

(iii) soon before her death, the woman must have been
subjected to cruelty or harassment by her husband
or by relatives of her husband;

(iv) such cruelty or harassment must be for or in
connection with demand for dowry;

(v) such cruelty or harassment is shown to have been
meted out to the woman soon before her death.

Page 21 of 30
(Vide Kans Raj v. State of Punjab and Others (2000)
5 SCC 207 and Smt Shanti and Another v. State of
Haryana
(1991) 1 SCC 371).

19. In the present case, PW­1­Rajeshwari Devi, mother

of deceased and PW­3­Bachan Singh, father of deceased

has stated that deceased Urmila was harassed by her in­

laws for bringing insufficient dowry. They have also

stated that after the marriage, when deceased came to

her parental home, she was complaining that her

husband and in­laws including father­in­law, mother­in­

law and others were demanding dowry. PW­1 further

stated that deceased Urmila was beaten up by accused

persons due to which, her eye was damaged and she was

operated. PW1 – stated that when deceased again went

back to her parental home, on 02.02.2008, PW­1 had

taken deceased to her in­laws house where, they were not

even offered a glass of water and the accused persons

enquired as to what they have brought with them. PW­1

told them that they were not in a position to fulfil their

demands and after overnight stay, on 03.02.2008, PW­1

returned to her house. From the evidence of PW­1,

Page 22 of 30
prosecution has proved that “soon before the death”,

deceased was subjected to cruelty and harassment. When

prosecution has established that deceased was subjected

to dowry harassment “soon before the death” and that

within seven years of marriage deceased Urmila had died

an unnatural death, the presumption under Section 113­

B of the Evidence Act is to be raised against the appellant

that she caused the dowry death. Once the prosecution is

able to establish the ingredients of Section 304B IPC, it is

for the accused to rebut the presumption. But the

accused have not adduced any reliable evidence to rebut

the presumption. The evidence of DW­1 and DW­2

relating to the incident will not be sufficient when the

incident is viewed keeping in perspective the evidence of

prosecution relating to the demand for dowry preceding

the actual incident. In fact, when the deceased was

shifted from Kota hospital, Srinagar to Dehradun

hospital, PW­1 tried to accompany them but the accused

refused to take PW­1 along. Not informing about the

incident and refusal of the appellant and other accused

Page 23 of 30
to take PW­1 along with them to the hospital, are strong

circumstances against the appellant.

20. In the above background, the justification for the

reliance placed on the third dying declaration dated

13.02.2008 by the High Court is to be examined. The

evidence of PW1, as noted, would disclose that when she

first went to the Hospital in Srinagar, she found that the

deceased was surrounded by her husband and in­laws

while PW1, the mother of the deceased was not allowed to

interact with her daughter. It is in that circumstance the

said declarations dated 06.02.2008 and 07.02.2008 were

recorded. Firstly, the statement dated 06.02.2008 was not

recorded by a Competent Authority or an Officer but is

recorded by the so­called Panchayat in the manner to aid

the accused. Insofar as the second dying declaration

dated 07.02.2008 it is no doubt true that it has been

recorded after a communication being addressed to the

Tehsildar and after being certified by the doctor that the

deceased was mentally fit to make the declaration.

Though the said requirements are satisfied, the

surrounding circumstances in which the statement was

Page 24 of 30
recorded while she was under the control of her in­laws.

Such statements relied on by the appellant would not

inspire confidence in the Court. In addition, it is noticed

that the same is in the form of question and answer which

could also be out of context depending on the manner in

which the questions were put.

21. As noted in the evidence of PW1, the mother of the

deceased, she was not allowed to accompany the deceased

when she was shifted to Doon Hospital. However, she

subsequently went there and was able to interact with her

daughter and in that circumstance after about a week

from the incident the declaration was recorded on

13.02.2008 after being certified by the doctor about the

deceased being conscious and fit to make the statement.

The said statement refers to the incident and the manner

in which it had occurred. The indicator to the

truthfulness of such statement is that the deceased had

only mentioned about the appellant i.e., the mother­in­law

who had indulged in the act of pouring kerosene and

setting her on fire. She had not implicated her husband

Page 25 of 30
nor her father­in­law who was in the house but has stated

that her father­in­law was sitting in another room having

her daughter on his lap and has in fact stated that when

she started crying, her father­in­law came there and he

extinguished the fire. If it was a case of false implication,

there was no reason for the deceased to have been so

specific insofar as the act of causing the death without

naming the other members of the family when all of them

were involved in the act of demanding dowry and was

complaining earlier about the harassment meted out by

them.. In such circumstance, the reliance placed on the

dying declaration dated 13.02.2008 is justified.

22. While arriving at such conclusion the High Court

has kept in view a decision of this Court in the case of

Nallam Veera Stayanandam & Ors. Vs. The Public

Prosecutor, High Court of A.P. (2004) 10 SCC 769

wherein it is held that each dying declaration has to be

considered independently on its own merit as to its

evidentiary value and one cannot be rejected because of

the contents of the other. It is held therein that the Court

Page 26 of 30
has to consider each of them in its correct perspective and

satisfy itself which one of them reflects the true state of

affairs. The consideration made herein above would also

indicate that on an independent consideration, the dying

declaration dated 13.02.2008 is reliable for the reasons

stated above. To the same effect the High Court has also

relied on another decision of this Court in the case of

Ashabai & Anr. Vs. State of Maharashtra (2013) 2 SCC

224 wherein it is held that when there are multiple dying

declarations, each dying declaration has to be separately

assessed and evaluated on its own merits.

23. The High Court has also taken note of a decision of

this Court in the case of State of Karnataka Vs.

Suvarnamma & Anr. (2015) 1 SCC 323 wherein it is held

that the dying declaration recorded by the police officer

was consistent with the circumstances on record while

dying declaration recorded by the Magistrate was not

found to be consistent. If the said decision is kept in view,

as already noticed, though the dying declaration dated

07.02.2008 was recorded by Tehsildar, the circumstance

Page 27 of 30
in which it was recorded was taken note by us. Further,

the dying declaration dated 13.02.2008 was recorded by

the Additional Tehsildar, Shri Shishpal Singh who was

examined as PW5. He has stated with regard to the memo

received from the hospital and having met the medical

officer he recorded the statement of the deceased who was

lying with burn injuries in the emergency ward. The

validity of the statement so recorded, therefore, stands

established. In addition, the High Court has also referred

to various other decisions on the subject. Hence the High

Court having examined the matter threadbare has arrived

at its conclusion in recording the conviction in the manner

as it has done which is justified and does not call for

interference.

24. Having arrived at the above conclusion the

quantum of sentence requires consideration. The High

Court has awarded life imprisonment to the appellant on

being convicted under Section 304­B IPC. The minimum

sentence provided is seven years but it may extend to

imprisonment for life. In fact, this Court in the case of

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Hem Chand Vs. State of Haryana (1994) 6 SCC 727 has

held that while imposing the sentence, awarding extreme

punishment of imprisonment for life under Section 304­B

IPC should be in rare cases and not in every case. Though

the mitigating factor noticed in the said case was different,

in the instant case keeping in view the age of the appellant

and also the contribution that would be required by her to

the family, while husband is also aged and further taking

into consideration all other circumstances, the sentence

as awarded by the High Court to the appellant herein is

liable to be modified.

25. In the result the following:

ORDER

(i) The conviction of the appellant recorded by the

High Court under Section 304­B IPC and Section

498­A IPC through its judgement dated 29.06.2017

is upheld and affirmed.

(ii) The sentence ordered by the High Court

through its order dated 10.07.2017 is modified and

the sentence of imprisonment for life is altered by

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ordering the appellant to undergo rigorous

imprisonment for a period of seven years which

shall include the period of sentence already

undergone by the appellant. The fine as imposed

and the default sentence is sustained.

(iii) The appeal is allowed in part, in the above

terms. (iv) The parties to bear their own cost.

Pending application, if any, shall stand disposed of.

……………………….J.

(R. BANUMATHI)

……………………….J.

(A.S. BOPANNA)

New Delhi,
January 28, 2020

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