KASHMIRA DEVI versus STATE OF UTTARAKHAND & ORS.

Citation: [2020] 1 S.C.R. 152 · Decided: 28-01-2020 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 1 S.C.R.
KASHMIRA DEVI
v.
STATE OF UTTARAKHAND & ORS.
(Criminal Appeal No. 724 of 2019)
JANUARY 28, 2020
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Penal Code, 1860 – ss.304-B, 498-A – Case of the prosecution
is that victim (since deceased) was married to proforma respondent
no.3 – Accused persons used to beat and harass the victim – Due to
such ill treatment by her in-laws for dowry the victim came back to
her parental house – PW1 (mother of the victim) & PW3 (father)
sent her back to matrimonial house – PW1 through the news spread
amongst the villagers got to know that the victim was burnt – Trial
court acquitted appellant (mother-in-law) and the other accused
persons – High Court convicted the appellant u/s.304-B r/w s.498-
A, IPC and awarded life imprisonment – Held: From the evidence
of PW1, prosecution has proved that “soon before the death”,
deceased was subjected to cruelty and harassment – When
prosecution has established the same and also that within seven
years of marriage the victim had died an unnatural death, the
presumption u/s.113-B, 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 s.304B, IPC, it is for the
accused to rebut the presumption – But the accused did not adduce
any reliable evidence to rebut the presumption – Further, there were
three dying declarations of the victim – Since it has come in evidence
that at the time of recording the first two dying declarations, her in-
laws were present, it cannot be said that the statement was recorded
voluntarily and without fear – During the third dying declaration,
parents of the victim had come and she gave the statement without
any fear – Said statement refers to the incident and the manner in
which it had occurred – Indicator to the truthfulness of such statement
is that the deceased only mentioned about the appellant who
indulged in the act of pouring kerosene and setting her on fire –
She did not implicate her husband nor her father-in-law who was
in the house – Conviction of the appellant is affirmed – However,
   [2020] 1 S.C.R. 152
152
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sentence of imprisonment for life is altered to rigorous imprisonment
for seven years including the period of sentence already undergone
by the appellant – Fine as imposed and default sentence is sustained
– Evidence Act, 1872 – s.113-B.
Penal Code, 1860 – s.304-B – Conviction under – Essentials
to be satisfied – Discussed.
Penal Code, 1860 – s.304-B – Quantum of sentence –
Appellant convicted u/s.304-B – Awarded life imprisonment – Held:
Minimum sentence provided is seven years but it may extend to
imprisonment for life – In Hem Chand v. State of Haryana reported
as [1994] 4 Suppl. SCR 295, Supreme Court held that while imposing
the sentence, awarding extreme punishment of imprisonment for life
u/s.304-B should be in rare cases and not in every case – In view of
mitigating factors in present case, like appellant’s age, contribution
required by her to the family, while husband is also aged, and further
taking into consideration all other circumstances, sentence of
imprisonment for life is altered to rigorous imprisonment for seven
years including the period of sentence already undergone.
Partly allowing the appeal, the Court
HELD : 1.1 From the evidence of PW-1, 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 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 DW-1 and
DW-2 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, PW-1 tried to accompany them
but the accused refused to take PW-1 along. Not informing about
KASHMIRA DEVI v. STATE OF UTTARAKHAND & ORS.
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SUPREME COURT REPORTS
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