http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.) 1386  of  1999

PETITIONER: PAWAN  KUMAR

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       13/03/2001

BENCH: Umesh C. Banerjee & K.G. Balakrishnan

JUDGMENT:

BANERJEE.J L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellants, charged for the offences under Sections 306,  498A, 201 and 193 of the Indian Penal Code, were found guilty   of  offences  by   the  Additional  Sessions  Judge Kurukshetra  under  Sections 306 and 498(A) of the Code  and were  sentenced  to undergo R.I.  for six years.   The  High Court  though dismissed the appeal qua appellant No.1, Pawan Kumar  but as regards the appellant Nos.  2 and 3, sentences were  reduced  to six months under both counts  respectively and  it is this order of dismissal which is under  challenge before  this  Court  in the appeal by the grant  of  special leave.

   Before  adverting to the rival contentions, be it  noted that  the  entire matter hinges on circumstantial  evidence.@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ There   is  also  however  existing   on  record,  a   dying@@ JJJJJJJJJJJJJJJJ declaration,  but  its  effect  on   the  matter,  shall  be discussed  shortly hereafter in this judgment.  Incidentally success  of  the prosecution on the basis of  circumstantial evidence  will  however  depend  on the  availability  of  a complete  chain  of events so as not to leave any doubt  for the  conclusion  that  the act must have been  done  by  the accused person.  While however, it is true that there should be no missing links, in the chain of events so as far as the prosecution  is  concerned, but it is not that every one  of the  links must appear on the surface of the evidence, since some  of  these links may only be inferred from  the  proven facts.   Circumstances  of strong suspicion without  however any  conclusive  evidence are not sufficient to justify  the conviction  and it is on this score that great care must  be taken  in  evaluating the circumstantial evidence.   In  any event,  on  the availability of two inferences, the  one  in favour  of the accused must be accepted and the law is  well settled  on  this score, as such we need not dilate much  in that  regard  excepting however, noting the observations  of this  Court  in the case of State of U.P.  Vs.  Ashok  Kumar Srivastava (AIR 1992 SC 840) wherein this Court in paragraph

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

9 of the report observed:-

   The  Court has, time out of number, observed that while appreciating  circumstantial evidence the Court must adopt a very  cautious approach and should record a conviction  only if  all the links in the chain are complete pointing to  the guilt  of  the accused and every hypothesis of innocence  is capable  of being negatived on evidence.  Great care must be taken  in  evaluating  circumstantial evidence  and  if  the evidence  relied on is reasonably capable of two inferences, the  one  in  favour of the accused must be  accepted.   The circumstance  relied  upon must be found to have been  fully established  and  the cumulative effect of all the facts  so established  must be consistent only with the hypothesis  of guilt.   But  this is not to say that the  prosecution  must meet  any  and every hypothesis put forward by  the  accused however  far-fetched and fanciful it might be.  Nor does  it mean  that  prosecution  evidence must be  rejected  on  the slightest  doubt  because the law permits rejection  if  the doubt is reasonable and not otherwise.

   The  other  aspect of the issue is that the evidence  on record,  ascribed to be circumstantial, ought to justify the inferences  of  the guilt from the incriminating  facts  and circumstances  which are incompatible with the innocence  of the  accused or guilt of any other person.  The observations of  this Court in the case of Balwinder Singh Vs.  State  of Punjab ( AIR 1987 SC 350) lends concurrence to the above.

Referring  to the prosecution case at this stage it appears that  Ekta,  the  sister of Sudarshan Kumar was  married  to Pawan  Kumar  appellant  No.1.   After four  months  of  the marriage, Ekta went to Sudarshan Kumar alongwith her husband Pawan Kumar and told him that a sum of Rs.10,000/- was being demanded  by Pawan Kumar, his father and mother.   Sudarshan promised  to  pay that amount after a couple of  days  after arranging  for  it.   Accordingly,   three  days  thereafter Sudarshan accompanied by one Jag Pal Saini went to the house of the accused at Shahbad and paid the amount of Rs.10.000/- to  Smt.  Kaushalya Devi.  After about one year, Ekta  again came  to  the house of Sudarshan with a  definite  grievance about   being  pestered  for  money   by  her  husband   and parents-in-law.   At  that time, she stayed at the house  of Sudarshan  for  eight months and never wanted to go back  by reason  of consistent harassment with beating.  As a  matter of fact, a feeling of being fed up together with despondency has  completely over-powered her.  Subsequently, a panchayat was  held and at the asking of village Panchayat,  Sudarshan agreed  to send and did send Ekta with Ram Asra to the house of  her parents-in-law at Shahbad.  However, the  appellants continued  harassing Ekta for dowry.  Sudarshan came to know of  this fact whenever he visited Ekta at Shahbad and as and when  she  came to meet her parents at karera Khurd.  It  is further  the  case of the prosecution that about two  months prior  to the occurrence, Sudarshan booked a maruti van  for himself and appellant-Pawan Kumar came to know about it.  He went  to the house of Sudarshan and told him that either the said van be given to him or he may book another van for him. Sudarshan  however, refused to accede to the demand.   Pawan Kumar  went  back leaving the impression that it  would  not bring  good  result.   On 17.9.1985,  Sudarshan  received  a telephonic   message  that  Ekta   was  burnt.    Sudarshan, accompanied  by Dr.  Krishan Lal, Sham Sunder and mother  of Ekta  went  to Shahbad.  On reaching Shahbad, they  came  to know  that Ekta had been taken to P.G.I., Chandigarh by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

accused.   Sudarshan  along  with   his  companions  reached P.G.I.,  Chandigarh  and found that Ekta had died.  He  took the  dead body and brought it to Shahbad and lodged a report to  the police.  The report was recorded by ASI Fateh  Singh and he took up the investigation of the case.  He reached at the spot.  At that time, the kitchen of the house was locked and  one ASI was put on guard.  The dead body along with the inquest report was sent for post mortem examination.  On the next  day, the spot and the dead body were got inspected  by the   team  summoned  from   Forensic  Science   Laboratory, Madhuban.   Thereafter,  the ASI inspected the spot  himself and  prepared  a rough site plan.  He took  into  possession certain  articles,  which  were sealed.  The  statements  of other   witnesses  were  recorded.    The  appellants   were arrested.   On the completion of investigation, challan  was filed.   Thereafter  the case was committed to the Court  of Sessions  where the learned Additional Sessions Judge  tried it and the conviction as above was made by him.

   Incidentally,  the defence has also led evidence to show that  Ekta died of an accident and not a suicidal death  and on  this  score  strong  reliance was placed  on  the  dying declaration by Ekta made before the Police Officer.  Though, however, dying declaration is stated to be a got up document and  not worth even the paper on which it was written.   The same is however noted herein below.

   I  was married with Pawan Kumar S/o Ram Asra caste Arora R/o  Sainda  Mohalla, Shababad about 4-5 years  before.   My husband  is  cloths dealer and his shop is situated in  Main Bazar  Shahabad.  We live together with our  parents-in-law. Today  in  morning  at  about  8.30 AM  my  husband  and  my father-in-law  Ram Asra had already been gone at shop and my mother-in-law  Smt.   Kaushalaya Devi also had gone  to  the house  of neighbour for visit.  I was alone at house.  Today at  about 10 AM I was boiling the Milk in Kitchen on a stove kerosene  Oil  was finished from the stove.  It had taken  a bottle  of  kerosene  oil  which was lying  in  kitchen  for filling  up in stove.  Then that bottle of kerosene oil fell down  from  my hands and broken.  The kerosene oil from  the bottle  fell upon my cloths and on the burns stove, so  that reason  my  cloths get on fire on this I started  crying  on this  a number of persons and women came to the spot.   They put off the fire from my clothes and from body.  Later on my husband  reached  there.   I was brought in  Civil  Hospital Shahabad  for treatment.  This fire set on due to broken the bottle  of  kerosene.   No body have fault in  this  matter. This  fire was put on by chance and not I had put on fire by anybody.  Statement heard and it is correct.

Attested                LTI, Ekta Rani Sd/- Arun Kumar,ASI, PS Shahabad                               W/o Pawan Kumar 17.9.85

   Mr.   Sushil  Kumar, learned Senior  Advocate  contended that  the  sole issue in the matter under  consideration  is whether  the  death  of  Ekta  can  be  ascribed  to  be  an accidental  death or a case of suicide?  Needless to  record that the High Court negated the case of accidental death and held the appellants guilty of abetment to the act of suicide and  it  is on this count that the appeal of  the  appellant No.1  before  the  High Court was rejected whereas  the  two other appellants had their sentences reduced.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

   In support of the appeal it has rather emphatically been contended that the dying declaration itself would negate any suicidal  act,  but  depicted a  clear  accidental  incident resulting  in the death.  It is this dying declaration which the  learned Trial Judge, as also the High Court ascribed it to  be not worth the paper on which the same was written and does  not  deserve the credence of acceptance of  the  same. Peculiarities  are  the  ways which can however,  easily  be noticed:  The kerosene on the stove got finished as a result of  which further filling of kerosene was required and hence a  bottle  was  taken, which accidentally  slipped  out  and broken.   But  the  factum  of  the  stove  not  having  any kerosene,  has been ignored, since absence of kerosene would put off the ignition and there would be total extinguishment of  fire:   The resultant effect of such  an  extinguishment mean  and  imply  that one would require a  match  stick  to ignite  the  kerosene- since there is no automatic  flow  of fire available.  The fact, Ekta died of burn injuries stands admitted  which  has  been stated to be accidental  and  not suicidal.  It is on this score however, the prosecution laid evidence to depict that the accident could not have happened as  stated  in  the  dying declaration and it  has  been  an evidence  created to cover up the suicide.  Strong  reliance has been placed on the evidence of Senior Scientific Officer Shri  J.L.  Gaur (PW.2) who in no uncertain terms ruled  out any accidental burn injury in the matter.  On an examination of  the body it was observed that a part of the scalp,  hair on the top of head eye brow, eye lashes and public hair were burnt  and  singed.  However hairs on the sides and back  of the  head  had  escaped  any injury.   The  body  was  burnt practically  all  over excepting the feet and  their  soles. Three  kerosene  stoves were available in the  kitchen,  two being  with sufficient fuel for use and the other one  lying totally idle in another corner of the room with accumulation of dust on them.  In any event, the third stove lying in the other  corner  was  not  having even a  smell  of  kerosene. Pieces of broken glass bottle with no smell of kerosene were available  in  the  kitchen and one of the bottom  piece  of bottle  had fungus like deposit clearly indicating non  user of the bottle as a container of kerosene for quite sometime. Significantly,  there  was a match box, a broken  match  box lying on the floor at a distance of about four feet from the stove.  The used sticks of match box were available near the stove.   The match box emitted smell of kerosene.  PW.2  has also  spoken  of  non-availability  of   any  milk  or  milk container  even in the kitchen.  The further finding of PW.2 is  that  both the stoves were in working condition and  the air pressure valves of the stove were found in open position having  the  lids of the tanks of the stove dry and  tightly closed.  PW 2 further spoke of an unused funnel lying on the floor  of  the  room which also did not  have  any  kerosene smell.

   It  is for reasons as above that learned Sessions  Judge and  the  High  Court  refused to put any  credence  on  the defence of accidental burn injury.  If the accidental injury is  ruled out and which we also feel the same way as that of the  other  two  Courts,  the obvious  conclusion  would  be suicidal  death and on that issue a further question  arises as  regards abetment.  An analysis of the evidence of  PW.3, Sudarshan  Kumar  (brother  of  the  deceased)  depicts  the behavioural  pattern received at the in-laws place by  Ekta. Occasional  demand  for money and failure to meet the  same, however  resulted in beating up of the girl, Ekta, and as  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

matter  of fact in September 1985 she came back to the house of  complainant all alone and this arrival, the  complainant described  as the aftermath of torture which in fact did put her  up  in a bad shape.  Definite evidence is available  on record  that  Ekta stayed with the complainant for  about  8 months  and it is only thereafter the appellant No.2  wanted to take back Ekta.  The brother of complainant PW.3 however, pointedly refused though after some persuasion and assurance of  the father-in-law, in the presence of some other members of  the family, of proper treatment to the  daughter-in-law, the  complainant  agreed  and  Ekta thus went  back  to  the in-laws place.  Further evidence however, records that there has  been no improvement of the behavioural pattern and  she was  subjected  to  dowry torture as  also  various  abusive treatment  by  reason  of not being able to  bear  a  child. Incidentally,  the  two  families, namely  the  brides  and grooms,  related to each other and it is on this score that learned  Senior Advocate in support of the appeal  contended that dowry torture or even user of any abusive language were all  figments of imagination :  The evidence however tell  a different story - The torture continued and reached its peak in  July 1985 by reason of a booking of a Maruti Van by  the complainant  which  was  asked  to   be  delivered  to   the accused/appellant,  on  refusal however, to comply with  the demand  for  delivery  of the van by  the  complainant,  the relationship  was  further  estranged and PW 3 was  given  a warning  as  regards  the events to follow and  it  is  only thereafter  this  incident  of burn injury  took  place.   A number  of  relatives were also examined and their  evidence corroborate  this  state  of  affairs  as  narrated  by  the complainant PW.3.

   The  learned  Senior Advocate in support of  the  appeal further  contended that the factum of the hospitalization of Ekta  in any event negates any ill treatment or torture, but to  be  treated  as  a positive  evidence  of  goodwill  and affection.   We are however unable to record our concurrence therewith  having  due  regard  to the  evidence  and  other materials  available on record.  There is thus preponderance of  evidence  of dowry torture and it is on this count  that Section 113(A) of the Evidence Act ought to be taken note of Section 113(A) reads as below:-

   113(A).   Presumption  as  to abetment of suicide  by  a married  woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative  of  her  husband  and it is  shown  that  she  had committed  suicide  within a period of seven years from  the date  of her marriage and that her husband or such  relative of  her husband had subjected her to cruelty, the Court  may presume, having regard to all the other circumstances of the case,  that such suicide had been abetted by her husband  or by such relative of her husband.

   Explanation;-   For  the  purposes   of  this   Section, cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code (45-1860).

   Incorporation  of Section 113(A) of the Evidence Act  in the statute book, depicts a legal presumption though however the  time  period of within seven years of marriage  is  the pre-requisite  for such a presumption.  The circumstances as noticed  hereinbefore  in  the   contextual  facts  and  the materials on record substantiate the requirements of Section 113  (A)  and having regard to the language used in  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

498  A  of  the  Indian  Penal  Code  there  cannot  be  any hesitation  in  coming to a finding that cruelty is  written large as regards the conduct of the appellant herein towards Ekta.   Needless to state that Section 113(A) itself by  way of  an  explanation provides that cruelty shall  have  the same  meaning  as is attributed under Section 498(A) of  the Indian Penal Code which reads as below:-

   (a)  any willful 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.

   On  the wake of the aforesaid and by reason of the  fact and  the death of Ekta was caused by burn injuries only  and having  considered the nature of injuries and since one  can not  but  rule out an accidental death as  discussed  herein before,  the  death of Ekta cannot but be attributed  to  be suicidal  on the basis of the circumstances as is  available on  record with the situation existing and having regard  to statutory   presumption,  this  Court   can  not  but   lend concurrence to the opinion expressed by the High Court.  The decisions  of this Court as relied upon by Mr.  Sushil Kumar (viz.   :  Balwinder Singh v.  State of Punjab [AIR 1996  SC 607]:   Lakhjit  Singh & Anr.  V.  State of  Punjab  [(1994) Supp  (1)  SCC  173]:  State of Punjab v.   Gurdip  Singh  & Ors.[1996 (7) SCC 163] Sharad Birdhichand Sarda v.  State of Maharashtra  [1984 (4) SCC 116) do not however, advance  the matter any further since each case shall have to be dealt in the  light of its own factual sphere and judicial precedents do  not  render any assistance whatsoever by reason  of  the peculiar  factual matrix.  In the facts of the matter  under consideration,  the  circumstances pointedly point  out  the accused  as  a guilty person as abettors and on the wake  of the  aforesaid the order of conviction cannot be  interfered with.   The  High Court has been lenient enough  in  dealing with the appellant Nos.2 and 3 by reducing the sentence, but since there is no cross appeal, we do not wish to record any contra view as regards the sentence as well.

   In  that view of the matter, this appeal fails and  thus stands dismissed.