Kashmira Devi vs. State of Uttarakhand (2020) - Dying Declaration in Dowry Death

• JUDGEMENT SUMMARY: Kashmira Devi vs. State of Uttarakhand.
• DATE OF JUDGEMENT: 28 January 2020
• JUDGES:  R. Banumathi, A.S. Bopanna
• PARTIES: Kashmira Devi Petitioner) v. State of uttrakhand (Respondent)

SUBJECT

Kashmira Devi vs. State of Uttarakhand is a case of cruelty and dowry death. The essence of a dying declaration is also clarified via this judgement by the learned high court and supreme court. The decision of the trial court to acquit the appellant (Kashmira Devi) on the grounds of inability of prosecution to prove the guilt beyond reasonable doubt was over ruled by the High court of Uttarakhand by applying the presumption under 113B of Indian evidence act. This decision of conviction by high court u/s 304B read with 498-A was upheld by the Hon’ble supreme court of India.

OVERVIEW & FACTS

• The case: Kashmira Devi vs. State of Uttarakhand, is a sign of the growing brutalities and harassment against women on account of dowry in the state of Uttarakhand.
• The accused Jagdish Singh was married to the deceased 4 years before the death of deceased i.e on 14/02/2008. At the time of the marriage dowry was given by the parents of the deceased as per their financial capacity. Despite of this the in laws of the deceased were not satisfied with the dowry and demanded more.
• Whenever Urmila(deceased) used to visit her paternal home she used to complain to her family about the brutalities of her in laws and harassment on account of dowry. She also complained about the brutal beatings by her husband, father-in-law, mother-in-law (Kashmira Devi) for non-fulfilment of dowry demands.
• Due to continuous harassment the deceased came to her paternal home but was sent back on 02.02.2008 on the reason that her father and mother were in no position to fulfil the dowry demand. On 08.02.2008 the mother of the deceased, through the news spread amongst the villagers heard that her daughter (deceased) was severely burnt.
• When the deceased's mother went to the hospital, she was not allowed to meet the deceased, who was surrounded by the accused (i.e., her in laws) and when she inquired to the in laws of the deceased, instead of explaining the situation used derogatory words and started threatening her. They told her that the burns were caused due to a stove burst.
• The Deceased Urmilla @ guddi succumbed to her burns on 14/02/2008. The mother of the deceased Rajeshwari filed an FIR u/s 156(3) of CRPC
• The statement of the deceased was taken on 6.02.2008 where she stated that suddenly the stove burst, oil spilled and she caught fire. She also stated that no one was responsible for this accident.
• In her second dying declaration taken by the tehsildar on 07.02.2008 she again stated that her saree caught fire when the stove exploded.
• The first two declarations were taken when the accused (in-laws of the deceased) were present
• On 13.02.2008 the deceased gave her third dying declaration in the comfort of her mother Mrs. Rajeshwari Devi, wherein she stated that on the day of the incident there was a quarrel between her mother-in-law, Kashmira Devi and herself and in the course of the quarrel her mother-in-law poured kerosene on her and set her ablaze. She clearly stated that no other person was involved in this incident and her father-in-law even try to extinguish the fire.
• The district court on the grounds of inability of the prosecution to prove the guilt beyond reasonable doubt acquitted the accused and also did not consider the dying declaration on the grounds that they were dubious.
• The high court after analysing various case laws on dying declaration and applying the presumption under section 113 b of IPC held the accused guilty under section 498A and the appellant Kashmira Devi guilty under section 304B read with 498A and ordered for a life imprisonment and a fine of 10000/-Rs against Kashmira Devi.
• The supreme court upheld the decision of the high court and convicted Kashmira Devi and other accused but it modified the punishment to rigorous imprisonment for 7 years and a fine of 10000/-

IMPORTANT PROVISIONS

Section 156 in The Code Of Criminal Procedure, 1973

156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.

Section 304B in The Indian Penal Code

1[304B. Dowry death. —

(1) 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. Explanation. —For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.]

Section 498A in The Indian Penal Code

³⁷⁶ [498A. Husband or relative of husband of a woman subjecting her to cruelty. —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. —For the purpose of this section, “cruelty” means—

(a) 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

(b) harassment of the woman where such harassment is 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.]

Section 113B in The Indian Evidence Act, 1872

1[113B. Presumption as to dowry death. —When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. —For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]

ANALYSIS OF THE JUDGEMENT

The supreme court upheld the decision of the high court to hold appellant Kashmira Devi guilty under section 304B and 498A and the other accused under section 498A.

The main reason of the high court to over rule the judgement of trial court was that the trial court erred in its judgment to consider the presumption under section 113B of evidence act, which states that if all the elements of dowry death mention under section 304B of IPC have been proved then the presumption would be against the accused and the burden of proof would be on the accused to prove otherwise.

The essentials under Section 304 B are:

1. The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
2. Such death must have occurred within seven years of her marriage;
3. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
4. Such cruelty or harassment must be for or in connection with demand for dowry;
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

All these essentials were properly satisfied by the prosecution and hence the presumption under 113B of Evidence act was applicable.

Now the second error of trial court was not placing due emphasis on the dying declarations, the high court after citing multiple case laws, including 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.

On carefully examining the three dying declaration the High court was of the opinion that the first two declarations were given in the presence of the accused and hence under pressure, the high court stated that the declaration on 13.02.2008 was given by the deceased without the presence of the accused and under the comforts of her mother. In the dying declaration dated 13.02.2008 the deceased stated that her mother-in-law in the course of quarrel poured kerosene on her and set her ablaze, her father-in-law was sitting in the living room playing with her daughter and after hearing the deceased cry, in fact tried to extinguished the fire. The court held that this declaration was reliable and it took due note of the circumstances in which all the three dying declarations were taken and held the appellant guilty under section 304B and 498A of IPC.