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IN THE

COURT OF SESSIONS,

CHANDIGARH

YEAR 2011

CASE CONCERNING THE DOWRY DEATH OF RADHIKA BURMAN

THE STATE Prosecution

v.

VIKRAMBURMAN&ANR. Defendant

COUNSEL FORTHE DEFENDANT

MEMORIAL SUBMITTED ON BEHALF OF THE DEFENDANT


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TABLEOFCONTENTS

INDEX OF ABBREVIATIONS 4

2. INDEX OF AUTHORITIES......................................................................... 5-8

3. STATEMENT OF JURISDICTION............................................................... 9

. STATEMENT OF FACTS......................................................................... 10-12

5. QUESTIONS OF LAW.............................................................................. 13

6. SUMMARY OF ARGUMENTS................................................................... 14

7. ARGUMENTS ADVANCED.....................................................................

I. Whether the accused may be convicted under s.304-B and s.498-Ar/w s.34 of the Indian Penal Code, 1860 for the dowry death of the

deceased?

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[A]. The statement made by the deceased to the Sub Inspector on January

6th

, 2011 is unreliable and inadmissible as a dying declaration under s.

32(1) of the Indian Evidence Act, 1872

15-22

i. The statement suffers from infirmities and cannot beconsidered to be veracious

15-21

ii. The statement being unreliable is not corroborated, henceinadmissible

21-22

[B].There was no demand for dowry by the accusedu/s.304-B 23-27


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i. None of the financial loans taken by the accused arein connection with marriage and thus fail to fall

under the definition of dowry u/s. 2 of the Dowry

Prohibition Act, 1961

23-27

[C].The deceased was not subjected to cruelty or harassment under

s.498-A of the Indian Penal Code, 1860, soon before her death

28-32

i. The deceased was not subjected to any sort ofharassment

29

ii. The deceased or any person related to her was notcoerced to meet any unlawful demands of a property

or valuables security

29-30

iii. There was no harassment on account of failure of thedeceased or any person related to her to meet any

such demand

30-32

[D]. There is reasonable doubt as to the commission of a dowry death as

probabilities of suicide and accident cannot be justifiably eliminated

33-38

. PRAYER 39


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INDEXOFAUTHORITIES

ARTICLES:

1. D.Nagaraja and Pratima Murthy , The ailments of which are anxiety and depression- Resource Covergence and Mental Health Care in India, Mental Health Care and Human

Rights, NHRC, New Delhi and NIMHANS, Bangalore

2. Kanchan Kumar, Women and Children- Mental Health Dimension , Mental Health andHuman Rights, NHRC, New Delhi and NIMHANS, Bangalore

3.

Mental Health Research in India, Division of non-communicable diseases, Indian Council ofMedical Research, Ramalinga Swami Bhawan, ansari Nagar, New Delhi, 2005.

4. S.Srivastava and NamitaKulshrestha Expression of suicidal intent in Depressives, IndianJournal of Psychiatry, 2000.

5. Suresh Bada Math, D.Nagaraja, Mental Health Legislation-An Indian Perspective, 2008,Mental Health Care and Human Rights, NHRC, New Delhi and NIMHANS, Bangalore.

6. T. S. SathyanarayanRao, M.R.Asha and K.S. JagannathaRao Understanding nutrition,depression and mental illness, Indian Journal of Psychiatry, 2008, April-June, 50(2).

BOOKS:

1. Bryan Garner, Laws of India, Criminal Law II, Vol. 5(2), LexisNexis ButterworthsWadhwaNagpur, 2009

2. Dr. Hari Singh Gour, Penal Law of India, 11th ed. 2009, Law Publisher (India) Pvt. Ltd.3.

Dr. KMathiharan& Prof. Dr. Amrit KPatnaik, Modi's Medical Jurisprudence &taxicology,23rd ed. 2005, LexisNexisButterworthWadhwa, Nagpur

4. Dr. R.M. Jhalla& V.B. Raju, Medical Jurisprudence, 6th ed. 1997, Eastern Book Company,Lucknow

5. Justice A.K. Nandi, Indian Evidence Act, 1872, 6th ed. 2010, Kamal Law House, Kolkata.


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6. KesavaRao, Sir John Woodroffe and Syed Amir Ali, Law of Evidence, 18th ed. 2009,Volume II, Lexis NexisButterworthsWadhwa Nagpur

7. KI Vibhute, PSA Pillais Criminal Law, 10th ed. 2009, Lexis NexisButterworthsWadhwaNagpur.

8. PC Dikshit, HWV COX Medical Jurisprudence &Toxicology , 7th ed. 2008, LexisNexisButterworth Wadhwa, Nagpur.

9. P.K. Majumdar and R.P.Kataria, Law of Dowry Prohibition, Cruelty and Harassment, 2nd ed.2010, Orient Publishing Company

10.Ratanlal&Dhirajlal, The Law of Evidence, 21st ed. 2009, Lexis NexisButterworthsWadhwaNagpur

11.Ratanlal&Dhirajlal, Law of Crimes, 27th ed. 2009, Bharat Law House, New Delhi.12.Ratanlal&Dhirajlal, The Code of Criminal Procedure, 17th ed. 2010, Lexis

NexisButterworthsWadhwa Nagpur.

13.S. K. Sarvaria, RA Nelsons Indian Penal Code, 10th ed. 2008, LexisNexisButterworthsWadhwa Nagpur

14.SumanNalwa&HariDevKohli, Law relating to Dowry, Dowry Death, Cruelty to Women &Domestic Violence, 2011 , Universal Law Publishing Co.

15.SudiptoSarkar& V R Manohar, Law of Evidence, 16th ed. 2009, LexisNexisButterworthsWadhwa Nagpur.

16.Vepa P. Sarthi, Law of Evidence, 6th ed. 2006, Eastern Book Company, Lucknow17.V.K.Dewan, Law relating to Dowry Prohibition, 2nd ed. 2010, Asia Law House, Hyderabad.

CASES:

1. Appasaheb v. State of Maharashtra, AIR 2007 SC 763;2. Arvind Singh v. State of Bihar, (2001) 6 SCC 4073. BalasahebAnnappaWaghmare v. State of Maharashtra, 1997 CrLJ 3476 (Bom)4. Bawa Ram and Anr. v. State ofU.T. Chandigarh, 2009 (13) SCC 2705. Chander Palv. State, (1997) 67 DLT 571 (Del)6. Dallp Singh and Ors. v. State of Punjab, AIR 1979 SC 11737. Dandu Lakshmi Reddy v. State of Andhra Pradesh, (1999) 7 SCC 69


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8. Dhula Ram v. State of Rajasthan, 1995 CriLJ 4057 (Raj)9. Gurcharan v. State of Rajasthan, 2003 I AD 217 (SC)10.Guruditta Singh v. State of Rajasthan1992 CriLJ 309 (Raj)11.Hanumantv. State of Madhya Pradesh 1953CriLJ12912.KajalSarkarv. State of Assam, (1993) 1 Gau LR 458.13.Kamlav. State of Punjab, (1993) 1 SCC 114.KushalRao v. State of Bombay, 1958 CrLJ 106.15.Laxmiv.Omparkash, AIR 2001 SC 238316.Narendra Singh Arorav. State (Govt. ofNCT, Delhi) & Ors., 173 (2010) DLT 24417.Noorjahan v. State Rep. by DSP; (2008) 11 SCC 5518.Omkarv. State Of M.P., 1974 CrLJ 1200;19.Pakala Narayan Swamy v. Emperor, 1939 PC 42 : 66 IA 6620.Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 199421.Paniben v. State ofGujarat, AIR 1992 SC 181722.Patel HiralalJoitaram v. State ofGujurat, AIR 2001 SC 29423.Pawan Kumar v. State of Haryana, (1998) 3 SCC 30924.Puran Chandv. State of Haryana, 2010 CrLJ 3423(SC)25.P. Mani v. State of TamilNadu, (2006)3SCC16126.Ramesh v. State of TamilNadu, 2005(2) SCR 49327.Ram Manorathv State ofU.P., (1981) 2 SCC 65428.RamnathMadhoprasad&Ors. v. State of Madhya Pradesh, AIR1953SC42029.Ramchandra Reddy v. Public Prosecutor, (1976) 3 SCC 61830.Ranjit Singh v. State, AIR 1952 HP 81.31.Rattan Singh v. State of H.P. ,AIR 1997 SC 76832.Santosh Kumarv. State of Madhya Pradesh, 1997 CLR 257 (MP)33.Satvir Singh v. State of Punjab, AIR 1998 SC 95834.Smt. Neera Singh vs The State (Govt. OfNct Of Delhi) And Ors., I (2007) DMC 54235.State of Delhi ( Administration) v. Laxman Kumar, (1985) 4 SCC 47636.State of Maharashtra v. Sanjay D. Ramjhans, AIR 2005 SC 97]37.State of Maharashtra v. Sanjay ApparaoRaut, Criminal Appeal No.311 of 1990,38.MANU/MH/0609/2008


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39.State of M.P. v. Ram Sugar Yadav, (1985) 1 SCC 55240.State of Punjab v. Daljit Singh, 1999 CrLJ 2723 (P&H)(DB);41.State of Himachal Pradesh v. Yog Raj , 1997 Cr LJ 2033 (HP) (DB)42.Sunil Bajaj v. State of Madhya Pradesh, 2001 CrLJ 2923 (SC)43.SharadBirdi Chandv. State of Maharshtra, (1984) 4 SCC 11644.Shanti v. State of Haryana, AIR 1991 SC 122645.Uka Ram v. State of Rajasthan, (2001) 5 SCC 254

REPORTS:

1. BhoreCommittee Report, 1946-2003, Directorate General of Health Services, Ministry ofFamily Welfare, 2004.

2. LAW COMMISSION OF INDIA Report No. 91, Dowry Deaths and Law Reforms:Amending the Hindu Marriage Act 1955, Indian Penal Code 1860 and Indian Evidence Act

1872, August1983.

3. LAW COMMISSION OF INDIA Report No. 202, Proposal to Amend Section 304-B ofIndian Penal Code, October 2007

STATUTES:

1.Criminal Procedure Code, 19732.Dowry Prohibition Act, 1961 (Amended in 1984 and 1986)3.Indian Evidence Act, 18724.Indian Penal Code, 18605.Mental Health Act, 1987


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STATEMENTOFJURISDICTION

The Defendant submits to the jurisdiction of the Honble Sessions Court under s.177 of the

Criminal Procedure Code, 1973 (Amended in 2005)


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STATEMENTOFFACTS

1. This case is regarding the death of RadhikaBurman, wife of VikramBurman who died asa result of severe burn injuries on January 6th, 2011.

2. As a fourth year student of architecture in College of Architecture in Chandigarh,Radhika became close to her senior, VikramBurman. Common friends were a little

surprised as Vikram liked an extravagant lifestyle, while Radhika was a simple girl from

a middle class background. They got married on November 9th2004, according to Hindu

rites.

3. Vikrams parents, his sister and his grandmother lived with the couple. Matrimonial lifegot its share of ups and downs, but soon Radhika became good friends with her sister-in-

law. She had some differences with her in laws on many occasions, but the matter was

mostly settled amicably. Vikram wanted to maintain his high life style, which saw the

family in a near financial crisis.

4. Radhika gave birth to a baby girl on December 11th2006. Vikram started to borrowmoney from his friends and relatives and also took a loan of Rs. 5,00, 000 from

Radhikas parents which he later refused to return, saying that the money was ultimately

for the happiness of their daughter.

5. Radhikas relation with her husband deteriorated, and on many occasions fights turnedphysical also. During his drunken fits, Vikram used to blame Radhika for being from afamily of beggars.Radhika even tried to slit her wrists, and end her life. She was saved by

her sister in law. After this incident, the family physician did prescribe some medicines

for Radhika, and also advised her to consult a psychiatrist.


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6. Then on April 13th2010 Radhika gave birth to a baby boy. Money lenders used tothreaten Vikram over the phone, and in turn he used to vent his frustration on Radhika.

She became more agitated, and started suffering from depression as well as mood swings.

7. All of a sudden on January 4th2011, neighbours saw Radhika running out of the housewith her sari on fire. Her mother in law was running after her shouting that Radhika was

out of her mind to do something like this. She collapsed on the road, from where she was

taken to hospital and admitted with 88% burns, where doctors declared her unfit to record

her statement immediately.

8. Her condition improved briefly on the morning of January 6, when the police was called.She gave her dying declaration before Mohan Lal sub Inspector of police, on the same

day at 11.00 hours and died at 12.30 hours on the same day.

9. In the declaration, she says that Vikram instigated his mother to burn her and before shecould realise what was happening, she felt a blast of heat on her back and lower body,

saw her sari on fire and ran outside the house in order for help. She states that it is highly

improbable that this was an accident and accuses her mother-in-law, Sarda of putting her

on fire on the instigation of her husband.

10. The police sent the body for post mortem examination which confirmed 88% burninjuries, minor traces of kerosene oil at the bottom of her sari, cut and stretch marks on

her neck, no damage to face and hair and injuries on left side of temple and left wrist.

11. Police also conducted a search of the house, and found a suicide note dated November9

th2010. In the suicide note, Radhika wrote that if she dies, she would kill the baby inside

her as well. She also wrote that her husband had stopped loving her and loved money

more. She spoke about her in-laws being indifferent and the tension and bad blood in the

house. Radhika stated that she held her husband responsible for what she was going to

do.


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12. The F.I.R. filed by Radhikas father on January 8th, 2011 states that he was asked to reachthe hospital where Radhika had been admitted on January 6th. Radhika told him that her

mother-in-law had set her on fire, on the instigation of her husband. He identified

Radhikas handwriting on the suicide note and stated that Radhika had been harassed by

her husband and mother-in-law for bringing less dowry. Radhikas mother in law and

husband were charged under s.302,s.304-B, s.498-A read with s.34 of the IPC.


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QUESTIONOFLAW

I. Whether the accused may be convicted under s.302, 304-B and s.498-A r/w s.34 ofthe Indian Penal Code, 1860 for the dowry death of the deceased.


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SUMMARYOFARGUMENTS

I. The accused may not be convicted under s.302, 304-B and s.498-A r/w s.34 of theIndian Penal Code, 1860 for the dowry death of the deceased

[A]. The statement made by the deceased to the Sub Inspector on January 6th

, 2011 is

unreliable and inadmissible as a dying declaration under s. 32(1) of the Indian Evidence Act,

1872

i. The statement suffers from infirmities and cannot be considered to beveracious

ii. The statement being unreliable is not corroborated, hence inadmissible.[B].There was no demand for dowry by the accusedu/s.304-B

i. None of the financial loans taken by the accused are in connection withmarriage and thus fail to fall under the definition of dowry u/s. 2 of the

Dowry Prohibition Act, 1961

[C].The deceased was not subjected to cruelty or harassment under s.498-A of the Indian

Penal Code,1860, soon before her death.

i. The deceased was not subjected to any sort of harassmentii. The deceased or any person related to her was not coerced to meet any

unlawful demands of a property or valuables security.

iii. There was no harassment on account of failure of the deceased or any personrelated to her to meet any such demand.

[D]. There is reasonable doubt as to the commission of a dowry death as probabilities of

suicide and accident cannot be justifiably eliminated.


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ARGUMENTSADVANCED

I. The accused may not be convicted under s.302, 304-B and s.498-A r/w s.34 of theIndian Penal Code, 1860 for the dowry death of the deceased.

[A]. The statement made by the deceased to the Sub Inspector on January 6th

, 2011 is

unreliable and inadmissible as a dying declaration under s. 32(1) of the Indian Evidence

Act, 1872

i. The statement suffers from infirmities and cannot be considered to be reliable.1. It is humbly submitted before the Honble Court, that the dying declaration made by the

deceased to the Sub Inspector is unreliable and inadmissible u/s.32 (1)1 of the Indian

Evidence Act,1872 (herein after referred as IEA) as the dying declaration of the deceased

suffers from infirmities and there exist surrounding evidence raising suspicion as to its

veracity.

2. A dying declaration is a statement, written or verbal made by a person who is dead relating tothe cause of death or circumstances leading to his death

2It is an exception to the hearsay rule

and thus the Court has to be satisfied that such dying declaration doesnt suffer from any

infirmities before basing the conviction on a sole dying declaration.3

One of the test of

1 s.32. of the Indian Evidence Act, 1872: Cases in which statement of relevant fact by person who is dead or cannot

be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who

cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without

an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, arethemselves relevant facts in the following cases:-- When it relates to cause of death.-

(1)When the statement is made by a person as to the cause of his death, or as to any of the circumstances of thetransaction which resulted in his death, in cases in which the cause of that person' s death comes into question. Such

statements are relevant whether the person who made them was or was not, at the time when they were made, under

expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into

question. or is made in course of business

2Smt. Panibenv. State ofGujarat,AIR 1992 SC 1817

3KhushalRao v. State of Bombay, AIR 1958 SC 22


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reliability of a dying declaration is a finding arrived by the court as to the satisfaction

regarding the authenticity and truthfulness of the statement of the deceased.4

3. The Supreme Court in KushalRao v. The State of Bombay,5 stated that, the purpose of cross-examination is to test the veracity of the statements made by a witness, however in case of a

dying declaration, such cross examination is not possible nor is there any necessity of an oath

and that in order to test the reliability of a dying declaration, the Court has to keep in view,

the circumstances like the opportunity of the dying man for observation, for example,

whether there was sufficient light if the crime was committed at night ; whether the capacity

of the man of remember the facts stated, had not been impaired at the time he was making the

statement, by circumstances beyond his control.

4. The apex court further held that,The Court must, of course, be fully convinced of the truth of the

statement and, naturally, it could not be fully convinced if there

were anything in the other evidence or in the surrounding

circumstances to raise suspicion as to its credibility and if after

examining the dying declaration in all its aspects, and testing its

veracity, the conclusion is that it (dying declaration) is not reliable

by itself, and that it suffers from an infirmity, then, without

corroboration it cannot form the basis of a conviction.6

5. In the case at hand, first-there is documentary evidence in the form of a suicidenote found on 7.01.2011, second- the deceased has a medical history of mental

illness that can be inferred through the surrounding circumstances that raises

suspicion as to the credibility of the dying declaration of the deceased.

6.The suicide note dated 9.11.2010 establishes the fact that the deceased hadsuicidal tendencies. Even at an earlier opportunity she had tried to commit

4Vepa P. Sarthi, Law of Evidence, 6th ed. 2006, Eastern Book Company Lucknow

5Supra note at 3

6Ibid


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suicide and it was only due to the timely intervention of her in laws that she was

saved. Secondly, the deceased suffered from constant depression and mood

swings.7 She was under medication and her physician had advised her to consult

a psychiatrist to stabilize her mental state of mind in order to control her suicidal

tendencies.8

7. Although the deceased was certified to be mentally fit by the attending doctorwhile giving her statement, it is submitted that the doctor was unaware of her

previously established unsound mental condition. Similarly, the Supreme Court

of India, in Uka Ram v. State of Rajasthan,9

acquitted the appellant, who was

alleged to have burnt his wife, in spite of the doctors certification of fitness. In

this case the amicus curiae submitted that the deceased was suffering from a

mental illness and had suicidal tendencies. The statement was held not to have

been made voluntarily or free from extraneous circumstances.

8. It is also pertinent to note that the deceased died exactly one and a half hoursafter giving the dying declaration.

10This further raises suspicion about her

critical condition which casts doubt on both her mental and physical fitness while

giving the dying declaration.

9. The Supreme Court in Smt. Paniben v. State ofGujarat,11 laid down the essentialingredients governing an admissible dying declaration:

a. The statement should relate to the cause of death or should deal with thecircumstances leading to death.

12

b. The statement should be true and voluntary13

7 Proposition Pg.2

8Proposition Pg.1

9

Uka Ram v. State of Rajasthan, (2001) 5 SCC 254

10Proposition Pg.2

11Supra note at 2

12SharadBhirdichandShardav. State of Maharashtra, AIR 1984 SC 1622

13State of M.P. v. Ram Sugar Yadav, (1985) 1 SCC 552


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c. The statement should be free from tutoring, prompting or imagination.14d. The declarant should be in the fit state of mind.15e. The declaration should be made at the earliest opportunity.16f. The statement should be free from any infirmities or inconsistencies.17

10. s. 32(1)18 of the IEA, 1872 under which the deceaseds statement was recorded requires thatthe maker of the statement be competent and credible. Therefore, where the declarant was

incompetent to testify by reason of imbecility of mind, or tender age, his declaration is

inadmissible.19

The principles governing dying declarations require that the Court ensure that

the deceased was in a fit state of mind to make the declaration.20

The Court must also ensure

that the declaration was true and voluntary and not influenced by extraneous condition.21

Thus, with respect to the given case, before considering the dying declaration of the deceased

as admissible, her capacity and mental state must be scrutinized22

by taking into account both

her medical condition at the time of making the statement as well as her medical history.

11. The Supreme Court of India has on previous occasions acquitted the accused wherein theprosecution has relied on the dying declarations of a mentally ill deceased to prove homicide.

12. In Dandu Lakshmi Reddy v. State of A.P.23, the deceased having suffered burn injuries madedying declarations to the effect that her husband and mother-in-law had poured kerosene on

14Ramchandra Reddy v. Public Prosecutor, (1976) 3 SCC 618

15Supra note at 9

16Supra note at 3

17Ram Manorathv.State ofU.P., (1981) 2 SCC 654

18Supranote at 1

19

KesavaRao, Sir John Woodroffe and Syed Amir Ali, Law of Evidence, 18th

Edition 2009, Volume II, p. 1935,Lexis NexisButrworthsWadhwa Nagpur; : Phipson on Evidence, 13th Edition, 1982, p 499, para 2472

20Supra note at 2; Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994

21Supra note at 9

22Supra note at 3

23Dandu Lakshmi Reddy v. State of A.P, AIR 1999 SC 3255


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her and burnt her. The Court found it unsafe to base the conviction on the dying declaration

since it had a doubt about the mental soundness of the author, rendering it inadmissible. The

deceased was said to have attempted to electrocute herself on a prior occasion. The accused

was found to be entitled to the benefit of doubt since the prosecution had failed to discharge

its burden beyond reasonable doubt.

13. In another case, Bawa Ram and Anr. V. State ofU.T. Chandigarh24, where the relatives ofthe deceased testified that he was mentally unsound and had suicidal tendencies, the dying

declaration made by him was held to be suspect and the accused was acquitted of all charges.

14. In P.Mani v. State of TamilNadu25, where the deceased had been suffering from mentalillness, unsoundness of mind and depression and had previously attempted to pour keroseneand set her person on fire, the appellant was given the benefit of doubt and acquitted since

the dying declaration was suspect and could not be relied upon.

15. The Mental Health Act, 1987 defines a mentally ill person as a person who is in need oftreatment by reason of any mental disorder other than mental retardation.

26

16. A mental illness may also be defined as a disorder in thought or mood so substantial that itimpairs judgment, behavior, perceptions of reality, or ability to cope with the ordinary

demands of life; or as a mental disease that is severe enough to necessitate care and

treatment for the afflicted persons own welfare or the welfare of others in the community.27

17. Depression comes under the ambit of mental/ psychiatric disorder28 which is categorized asmental ill-health.

29People suffering from such manic depression psychosis

30and

24

Bawa Ram and Anr. v. State ofU.T. Chandigarh, 2009 (13) SCC 270

25P.Maniv. State of TamilNadu, 2006(3) SCC 161

26Chapter 1, S. 2(l), Mental Health Act, 1987

27Gamer, Bryan, Blacks Law Dictionary, pg.1075, 9

thEdition.,Thomas Reuters.

28 Suresh Bada Math, D.Nagaraja, Mental Health Legislation-An Indian Perspective, 2008, Mental Health Care

and Human Rights, NHRC, New Delhi and NIMHANS, Bangalore;T. S. SathyanarayanRao, M.R.Asha and K.S.


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psychiatric disorders have high tendencies to commit suicide or deliberate harm.31

People

suffering from such manic depression tend to suffer from delusions, hallucinations and

agitation. Moreover, there are high occurrences of mental illnesses during pregnancy,

motherhood and pre/post natal care, including postpartum psychosis, which is mental illness

after childbirth.32

18. It is thus respectfully submitted before this Honable Court that the deceased was sufferingfrom depression as well as mood swings.

33She got agitated often and had attempted to

commit suicide on a previous occasion.34

Moreover, she was prescribed medication for her

mental condition and advised a consultation with a psychiatrist.35 It is pertinent to note that

there is a probability that she may be suffering from postpartum psychosis besides manic

depression.

36

The deceased gave birth to a baby boy on 13

th

April, 2010 and wrote hersuicide note on 9th November, 2010. Before and between this period she was suffering from

depression.37 Also, when she wrote the suicide note, she was pregnant as written by her in the

said note.38

All these factors point towards her mental illness due to depression and perhaps

even post-partum psychosis. The Bombay High Court had held that the dying declarations

JagannathaRao Understanding nutrition, depression and mental illness, Indian Journal of Psychiatry, 2008, April-June, 50(2), pg.77-82

29Bhore Committee Report, 1946-2003, Directorate General of Health Services, Ministry of Family Welfare, 2004.

30D.Nagaraja and Pratima Murthy , The ailments of which are anxiety and depression- Resource Covergence and

Mental Health Care in India, Mental Health Care and Human Rights, NHRC, New Delhi and NIMHANS,

Bangalore

31Puran Chandv. State of Haryana,2010 CrLJ 3423 (SC); S.Srivastava and NamitaKulshrestha Expression of

suicidal intent in Depressives, , Indian Journal of Psychiatry, 2000, 42(2), 184-187

32Kanchan Kumar, Women and Children- Mental Health Dimension, Mental Health and Human Rights, NHRC,

New Delhi and NIMHANS, Bangalore

33 Proposition, Pg. 2

34

Proposition, Pg. 135Ibid

36Supra note at 32

37Proposition Pg. 2

38Proposition Pg. 4


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made by the deceased who was suffering from post-partem psychosis and schizophrenia

could not be used to convict the accused who had allegedly burnt his sister-in-law due to the

deceaseds unsound mind. 39

19. Depression, or manic depressive psychosis and post-partum psychosis being mentaldisorders, the person suffering from these is mentally ill and of unsound mind and may have

impaired judgment and perceptions of reality.

20. The dying declaration in the case at hand fails to satisfy key elements of a valid dyingdeclaration as the statement doesnt seem to be true and veracious nor is it free from

inconsistencies and infirmities. Further there is high probability that due to the mental

capacity of the declarant being impaired her statement was a result of her imagination and

delusions. In order to rely on such a suspicious dying declarations it is essential to

corroborate it.

ii. The statement being unreliable is not corroborated, hence inadmissible21. The Supreme Court in Ram NathMadhoprasad&Ors. v. State of Madhya Pradesh40 held that,

It is settled law that it is not safe to convict an accused person merely on

the evidence furnished by a dying declaration without further

corroboration because such a statement is not made on oath and is not

subject to cross-examination and because the maker of it might be

mentally and physically in a state of confusion and might well be drawing

upon his imagination while he was making the declaration.

22. Thus, in case of a dying declaration suffering from an infirmity and suspicion it is essentialthat it must be corroborated in order to overcome such infirmity or suspicion as has been held

in Ram NathMadhoprasad&Ors. v. State of Madhya Pradesh41and reaffirmed in KhusalRao

39State of Maharashtra v. Sanjay ApparaoRaut, Criminal Appeal No.311 of 1990, MANU/MH/0609/2008

40RamnathMadhoprasad&Ors.v. State of Madhya Pradesh, AIR1953SC420

41Ibid


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v. The State of Bombay.42

The father of the deceased has corroborated the dying declaration of

the deceased through filing an FIR but such corroboration is not reliable and valid as the

father is an interested party to the case and it is highly probable that being the father of the

deceased he must have been carried away by sentiments and emotions while corroborating

the dying declaration.

23. Similar was the case in Narendra Singh Arorav State (Govt. ofNCT, Delhi) & Ors.,43wherein the Delhi High Court stated that, Normally in-laws are convicted on the testimonies of

parents of the girl who, in a fit of anger or because they had lost their daughter, are not

prepared to believe that their daughter could commit suicide for any other reason.

24. The Rajasthan High Court in Dhula Ram v. State of Rajasthan,44held that,the deceased was not in a fit condition to make the dying declaration as she

had 94% burns and further that the dying declaration was recorded by Head

Constable, though the doctor on duty was present, which raises a suspicion

regarding truthfulness and veracity of the dying declaration and as such the

so-called dying declaration cannot be relied upon.

25. Thus, it is humbly submitted that, the dying declaration made by the deceased to the SubInspector on January 6

th, 2011 is unreliable and inadmissible as it suffers from infirmities and

as there exists surrounding evidence raising suspicion as to its veracity. The dying

declaration of the deceased who is mentally ill and unsound is inadmissible under s.32 (1)

and cannot be held to be true or uninfluenced by extraneous considerations and therefore

cannot be the basis of the defendants conviction. The Court is bound by the decisions of the

Supreme Court and Bombay High Court in this regard.

42Supra note at 3

43Narendra Singh Arorav.State (Govt. ofNCT, Delhi) & Ors., 173 (2010) DLT 244

44Dhula Ram v. State of Rajasthan, 1995 CriLJ 4057(Raj)


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[B].There was no demand for dowry by the accused.

i. None of the financial loans taken by the accused are in connection with marriageand thus fail to fall under the definition of dowry u/s. 2 of the Dowry Prohibition

Act, 196126. It is humbly submitted that the accused cannot be convicted under s.304-B and s. 498-A r/w

s.34 IPC as the required key elements of demand for dowry for or in connection with

marriage and subjection of the deceased to dowry related cruelty soon before her death

u/s.304-B have not been satisfied.

27. The honorable Supreme Court in Shanti v State of Haryana held that before a person can beconvicted u/s.304-B

45of the IPC, the prosecution must prove the following;

46

1. The death of the deceased was caused by burns or bodily injuries or otherwise thanunder normal circumstances;

2. Such death had occurred within seven years of the marriage of the deceased;3. That the deceased had been subjected to cruelty or harassment by her husband or

any relative of her husband and

4. That such cruelty or harassment was for or in connection with the demand fordowry.

28. Two essential ingredients of S. 304B IPC, apart from others, are (i) death of woman is causedby any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii)

woman is subjected to cruelty or harassment by her husband or any relative of her husband

for, or in connection with, any demand for "dowry".47

The explanation appended to Sub-s.

45

s.304-B of the IPC,1860: Where the death of a woman is caused by any burns or bodily injury or occursotherwise 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

46Shanti v.State of Haryana, AIR 1991 SC 1226, Reaffirmed by State of Himachal Pradesh v.Yograj, 1997 CriLJ

2033, Dhula Ram v. State of Rajasthan, 1995 CrLJ4057(Raj)

47Appasaheb v. State of Maharashtra, AIR 2007 SC 763


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(1) of s.304-B IPC says that "dowry" shall have the same meaning as in s.248

of the Dowry

Prohibition Act, 1961.49 (Herein after referred to as DPA,1961)

29. Therefore, while defining dowry as property or valuable security demanded and receivedby parties before, after or at the time of marriage, an important consideration is the term, in

connection with the marriage.50

Therefore, all demands of money or property by one party in

marriage to the other do not qualify as dowry unless they are in connection with marriage51

Moreover, mere taunts regarding financial status of a party in marriage will not be considered

as a demand for dowry unless there is evidence to show the existence of an actual

demand.52Nexus with marriage is an essential requirement to prove demand for dowry.53 It

is also to be noted that benefit of doubt is to be given to the accused when there is

insufficient evidence to prove a demand for dowry

54

and when available evidence isunreliable.55

30. It is humbly submitted that the accused made no demand for dowry56 in connection withthe marriage of the said parties57 and thus the accused cannot be convicted under s.304-B of

the IPC for the dowry death. There is no evidence to suggest that there was any demand

for dowry for or in connection with marriage. There is mention about dowry only in the

48 In this Act, dowry means any property or valuable security given or agreed to be given either directly or

indirectly (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to amarriage or by any person, to either party to the marriage or to any other person. At or before or any time after the

marriage in connection with the marriage of said parties, but does not include Dower or Mahr in the case of persons

to whom the Muslin Personal Law (Shariat) applies

49Ibid.

50State of Punjab v. Daljit Singh, 1999 CrLJ 2723 (P&H)(DB);Appasaheb v. State of Maharashtra, AIR 2007 SC

763; Satvir Singh v. State of Punjab, AIR 1998 SC 958

51Ibid

52Ramesh v. State of TamilNadu, 2005 (2) SCR 493

53BalasahebAnnappaWaghmare v. State of Maharashtra, 1997 CrLJ 3476 (Bom)

54Chander Palv. State, (1997) 67 DLT 571 (Del)

55Santosh Kumarv. State of Madhya Pradesh, 1997 CLR 257 (MP)

56Supra note at 45

57 s.2, Dowry Prohibition Act, 1961


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deceaseds dying declaration and in the deceaseds fathers F.I.R. both of which are

unreliable as has been established before. It is also submitted that the deceaseds fathers

statement in the FIR dated January 8th, 2011, alleging cruelty in relation with demand for

dowry cannot be relied upon for not only are the allegations vague and non-specific in

nature58, but it is made by an interested witness, the father of the deceased.59

31. Further, no amount of dowry demanded has been mentioned by the father in the F.I.R.Moreover, the father has not bothered to mention the Rs. 5 lac loan taken by the husband

from him. Therefore, it can be inferred that the father did not consider the loan as a dowry

amount. It is submitted that in the light of the facts of the case, there is no demand for dowry

made by the accused. After the birth of their first child on 11 th December, 2006, the accused

borrowed money from his friends and relatives, including his father-in-law.

60

It is submittedthat the loan of Rs. 5,00,000 taken by the accused from his father-in-law does not fall under

the ambit of the definition of dowry as per S. 2 of the DPA, 1961 for it is not an amount

given in connection with marriage which is an important clause in the definition.

32. The Rajasthan High Court in Dhula Ram v. State of Rajasthan,61 held thatFor treating a demand as a dowry it must be shown that the demand has

been made as a consideration for the marriage. In the present case, the

alleged demands cannot be said to be a consideration for the marriage and

at the most these demands can be said to be a consideration for happy

marital life or setting up a business, which does not fall within the

definition of the word 'dowry' and thus the accused was acquitted from

the offence of dowry death u/s.304-B of the IPC

58Chander Palv. State (1997) 67 DLT 571 (Del);Sunil Bajaj v. State of Madhya Pradesh, 2001 CrLJ 2923 (SC)

59Sunil Bajaj v. State of Madhya Pradesh, 2001 CrLJ 2923 (SC)

60 Proposition, Pg.1

61Dhula Ram v. State of Rajasthan, 1995CriLJ4057(Raj); L. V. Jadhavv.ShankarraoAbasahebPawar, 1983 Cri LJ

1501


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33. Similarly in the case at hand, the justification of the accused husband for refusal to return theloan was that it was taken ultimately for the happiness of the deceased

62which would in turn

lead to a happy marital life and thus such loan cannot fall under the ambit of dowry and

thus the key element of demand for dowry not being established it is humbly submitted that

the accused shall not be convicted u/s.304-B of the IPC.

34. Furthermore, normally in-laws are convicted on the testimony of parents of the girl who, ina fit of anger because they had lost their daughter, are not prepared to believe that their

daughter could commit suicide for any other reason.63 Else, any other transaction made

between the parents and the husband of the deceased does not come under the ambit of the

definition of dowry under the Dowry Prohibition Act, 1961.

35. In Appasahebv. State of Maharashtra64, where the accused made demands of sums of moneyto meet household expenses and manure, the Supreme Court held that these amounts could

be defined as domestic expenses and not dowry. Demand for money on account of some

financial stringency or for meeting some urgent domestic expenses cannot be termed as a

demand for dowry as the said word is normally understood.65

36. In State of Punjab v. Daljit Singh66, demand of certain amount was made by accused but witha view to send husband of the deceased abroad and this demand cannot be connected with

dowry by any stretch of imagination. Hence, Court acquitted accused in relation to dowry

death.

37. Therefore, since the loan of Rs. 5,00,000 was to meet domestic expenses due to financialstringency, it is not in connection with marriage and does not come under the definition of

62Proposition, Pg.1

63Supra note at 43

64 Supra note at 47

65Ibid.

66State of Punjab v. Daljit Singh, 1999 CrLJ 2723 (P&H)(DB)


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dowry as opined in the above cases. Therefore, it is submitted that there was no demand for

dowry.

38. It is pertinent to note that there is no mention of any demand for dowry in the suicide notewritten by the deceased on 9th November, 2010. A person suffering cruelty at the hand of her

in-laws would mention in her suicide note, the cause of her death if related to harassment

with regard to dowry. However, in this case, there is no mention of demand for dowry, and

all that the deceased mentions is her husband and in-laws indifference towards

her.67

Moreover, taunts relating to the deceased coming from a family of beggars will not

amount to demands for dowry.68

39. In Appasahebv. State of Maharashtra,69 the Supreme Court held that

The evidence adduced does not, therefore, show that any demand

for "dowry" as defined in s.2 of the Dowry Prohibition Act was

made by the appellants as what was allegedly asked for was some

money for meeting domestic expenses and for purchasing manure.

Since an essential ingredient of s.304-B IPC viz. demand for

dowry is not established, the conviction of the appellants cannot be

sustained.

40. Similarly in the case at hand, it is humbly submitted that in the light of insufficient evidenceto prove a demand for dowry, and all other transactions between accused and deceaseds

parents not qualifying under the definition of dowry under DPA, 1961, there is no demand

for dowry, and hence the accused cannot be convicted under s.304-B of the IPC for the

dowry death of the deceased.

67Gurcharan v. State of Rajasthan, 2003 I AD 217 (SC)

68Ramesh v. State of TamilNadu, 2005(2) SCR 493

69Supra note at 47


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[C].The deceased was not subjected to cruelty or harassment under s.498-A of the Indian

Penal Code, 1860, soon before her death.

41. It is humbly submitted before this Honble Court that the deceased was not subject to anysort of cruelty or harassment u/s.498-A, soon before her death.

42. There is a false presumption that every suicide committed by a married woman in her in-lawsor at her parents house has to be because she was suffering harassment at the hands of her

husband or her in-laws.70

43. The Explanation to s.498-A71 gives the meaning of 'cruelty'.72 Consequences of cruelty whichare likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb

or health, whether mental or physical of the woman is required to be established in order to

bring home the application of s.498-A IPC.73

Also having regard to the common backgroundof offences under s.498-A and s.304-B of the IPC, 1860, the meaning of cruelty and

harassment has to be taken to be the same.74

Cruelty or harassment need not be physical

only and even mental torture in a given case would be a case of cruelty and harassment

within the meaning of cruelty u/s.498-A.75

44. Cruelty as defined in s.498-A of the IPC must meet the following requirements:76

70Supra note at 43

71s.498-A of the IPC, 1860: 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 thepurpose of this s. '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.

72Noorjahanv. State Rep. by DSP; (2008) 11 SCC 55

73Ibid

74Halsburys Laws of India,Criminal Law II, Vol. 5(2), LexisNexis Butterworths, 2009, pg.105.1427

75Pawan Kumarv. State of Haryana, (1998) 3 SCC 309

76Smt. Neera Singh v.The State (Govt. OfNct Of Delhi) And Ors., I (2007) DMC 542


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1. There should be harassment of the woman.2. Harassment should be with a view to coercing her or any person related to her to meet

the unlawful demand of a property or valuables security.

3. The harassment may be even where on account of failure by woman or any personrelated to her to meet any such demand earlier made.

i. The deceased was not subjected to any sort of harassment

45. In the case at hand, there is no evidence that the deceased was subject to cruelty orharassment. Mere taunts and quarrels are normal wear and tear of a matrimonial life and

cannot be termed as cruelty. Also in Smt. Neera Singh v. The State (Govt. Of Nct Of Delhi)

And Ors.77

, the Delhi High Court stated that: the utterances as assigned to the accused that

she had not brought any gold item for them would not amount to harassment being made by

the accused for the purpose of coercing her or her relatives to meet the unlawful demands.

Similarly in the case at bar, the taunts of the accused that the deceased belonged to a family

of beggars cannot fall in the ambit of cruelty as it would be false to infer that such a taunt

was made for the purpose of coercing the deceased or her relatives to meet unlawful demands

of dowry. Thus, the first limb of cruelty of harassment has also not been fulfilled.

ii.

The deceased or any person related to her was not coerced to meet any unlawfuldemands of a property or valuables security.

46. Further elucidating the facts: Firstly, the demand for Rs. Five Lacs on 4.01.2011 as has beenstated in the dying declaration recorded by Sub- Inspector Mohan Lal holds no good as the

dying declaration lacks veracity as has already been established. Secondly, the loan of Rs.

Five Lacs taken by the accused from the deceaseds husband during financial crisis is merely

a loan and cannot be termed as dowry.78 Thus, at no point of the deceaseds matrimonial life

was she ever asked to bring dowry, there was no demand for dowry in forms of valuable

security or property. Thus, there being no demand for dowry, no cruelty can be established

77Ibid

78Appasaheb v. State of Maharashtra, AIR 2007 SC 763 ;AshokKumar v. State of Haryana, AIR 2010 SC

2839,Hans Raj Sharma v. State ofNCT Delhi,2010 CriLJ 4664 (Del)


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without fulfilling the second limb of cruelty (harassment and coercion to bring dowry) stated

under Smt. Neera Singh case.

47. In this way all three limbs essential to establish cruelty as stated in Smt. Neera Singh vs TheState (Govt. OfNctOf Delhi) And Ors.

79which are required to be satisfied in order to attract

application of s.498-A have not been satisfied as the deceased was never subjected to any

sort of dowry related cruelty or harassment.

iii. There was no harassment on account of failure of the deceased or any personrelated to her to meet any such demand.

48. Also there was no physical cruelty inflicted on the deceased due to her failure to meet dowrydemands as it would be unreasonable to infer that when the fights turned physicals, the

accused physically abused the deceased for failure to meet dowry demand. The third limb of

cruelty that is harassment of the deceased on account of failure by her or any person related

to her to meet any such dowry demand has not been satisfied. There was never an explicit

demand of dowry made at any time. Also, the demand of Rs. Five Lacs on the date of the

incident80

cannot be relied upon as the dying declaration itself has been proved to be

unreliable as has been established already.

49. Also the Himachal Pradesh High Court in State of Himachal Pradesh v. Yog Raj81 held that,

Even if, it be assumed that a demand of Rs. 15,000/- was made by the

respondent, such mere demand will not bring the case either within the

ambit of s.304-B or s.498-A, Indian Penal Code, in the absence of

evidence that the deceased was being treated with cruelty on account of

such demand.

79Supra note at76

80Proposition Pg.5

81State of Himachal Pradesh v.Yog Raj 1997 Cr LJ 2033 (HP) (DB)


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50. Also, it is pertinent to note that, even the suicide note lacks corroborative value as there is nosign of cruelty whatsoever mention in the suicide note contrary to the dying declaration of

the deceased.82 Although, the suicide note was written one month twenty eight days prior to

the deceaseds death, it holds value as it helps in establishing circumstances that may have

led to the death of the deceased.

51. Similar was the holding of the Himachal Pradesh High Court in Ranjit Singh v. State,83where in letters written by a person three years before his death referring to various incidents

and reflecting the relation between the deceased and the accused were admissible as relevant

circumstantial evidence. Also the Supreme Court in SharadBirdiCahndv. State of

Maharashtra84

held that, Where the main evidence consists of statements and letters written

by the deceased which are directly connected with or related to her death and which reveal a

tell-tale story, the said statement would be admissible and the distance of time alone in such

cases would not make the statement irrelevant.

52. There was no evidence on record to suggest that the deceased was being mal treated ortortured with regard to dowry demands and thus the Honble Supreme Court

85acquitted the

accused of dowry death u/s.304-B. Similarly the Honble Supreme Court acquitted the

accused for charges of cruelty u/s.498-A of the IPC due to non availability of evidence.86

53. Thus there being no evidence of cruelty at all, be it physical or mental cruelty, at any point ofthe deceaseds matrimonial life be it at the start, during her matrimonial life or even soon

before her death, the accused cannot be held liable u/s.304-B or s.498-A of the IPC r/w s.34

of the IPC.

54. Also before a presumption of dowry death under s.113-B of the Indian Evidence Act can beraised, the prosecution has necessarily to prove that soon before her death, the deceased was

82Proposition Pg.4-5

83Ranjit Singh v. State, AIR 1952 HP 81.

84SharadBirdi Chandv. State of Maharshtra, (1984) 4 SCC 116

85Supra note at 67

86Arvind Singh v. State of Bihar, (2001) 6 SCC 407


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subjected to cruelty or harassment in connection with the demand of dowry.87

Thus, is

respectfully submitted that since both these essentials have not been proved the accused

should neither be punished u/s.304-B nor u/s.498-A of the IPC.

87Guruditta Singh v. State of Rajasthan,1992 Cri LJ 309 (Raj)


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[D]. There is reasonable doubt as to the commission of a dowry death as probabilities of

suicide and accident cannot be justifiably eliminated.

55. It is humbly submitted that there is reasonable doubt as to the commission of a dowry deathas other possibilities relating to circumstances leading to death cannot be eliminated. Simply

because a young lady has brought her life to a tragic end it cannot be said that she had

embraced death on account of any demand of dowry by her husband or mother-in-law.88

The

initial burden is on the prosecution to prove the guilt of the accused beyond all reasonable

doubt.89

56. The Honble Supreme Court in Hanumant v. State of Madhya Pradesh90held that, Thecircumstances should be of a conclusive nature and tendency, and they should be such as to

exclude every hypothesis but the one proposed to be proved...it must be such as to show thatwithin all human probability the act must have been done by the accused.

57. However, in the case at hand, there seem to be three possibilities to the causation of the deathof the deceased; it may be an accident, a suicide or homicide.91 The five golden principles, if

we may say so, constitute the panchsheel of the proof of a case based on circumstantial

evidence as have been upheld by the Honble Supreme Court in SharadBirdi Chand v. State of

Maharshtra92

(1) the circumstances from which the conclusion of guilt is to be drawn should befully established.

(2) the facts so established should be consistent only with the hypothesis of the guiltof the accused, that is to say, they should not be explainable on any other

hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

88

Ibid

89Supra note 84

90Hanumantv. State of Madhya Pradesh 1953CriLJ129

91State of Delhi ( Administration) v. Laxman Kumar, (1985)4SCC476, The Supreme Court held that there could be

three possibilities for the deceased being burnt: (1) suicide;(2) accidental fire; and (3) being put on fire.

92Supra note at 84


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(4) they should exclude every possible hypothesis except the one to be proved,andthere must be a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the accused and must

show that in all human probability the act must have been done by the accused.

58. This is indicative of the cardinal principle of criminal jurisprudence that a case can be said tobe proved only when there is certain and explicit evidence and no person can be convicted on

pure moral conviction.93 Therefore, if the above mentioned five principles are not fulfilled

then in order to prevent miscarriage of justice it is essential to give benefit of doubt to the

accused unless the prosecution proves guilt beyond reasonable doubt.94

59. In theSharadBirdi Chand case95 the Honble Supreme Court was perplexed between twoviews causing the death of the deceased; one being suicide and the other being murder and

thus the accused was given a benefit of doubt. Similarly, in the case at hand, there are three

possibilities: murder, suicide or accident and thus it is humbly suggested that the accused be

given a benefit of doubt too.

60. It is pertinent to note that, there is a possibility of suicide as the deceased had alreadyattempted suicide once before but was fortunately saved by her sister-in-law. It is pertinent to

note that the deceased had suicidal tendencies. Also the deceased was once again planning to

commit suicide on 9.11.2010 as can be established through her suicide note found by the

police on 7.01.2011. Same was the case in P. Mani v. State of TamilNadu,96

where the

deceased had earlier tried to commit suicide and thus the hypothesis of the cause of her death

being suicide could not be ignored.

93Supra note at84, pg.153.

94Supra note at 84, pg.177.

95Supra note at 84

96P. Mani v. State of TamilNadu, (2006)3SCC161 held, prosecution could not prove beyond reasonable doubt that

accused caused the death of the deceased and thus acquitted based on benefit of doubt.


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61. Also the death may be a result of an accident as the postmortem report is only indicative ofthe fact that there were minor traces of kerosene on the bottom of her sari and one cannot

reasonably infer that the death was for sure a murder. While the deceased was cooking, her

sari may have caught fire and there is probability that the death was caused due to an

accidental fire. Furthermore, the deceased in her dying declaration stated that Before I could

realize what was happening, I felt a blast of heat on my back and lower body. She had not

seen Sarda and Vikram setting her on fire and yet denied the probability of an accident which

raises further suspicion. Also, during the mishap, Vikram was not in the kitchen which has

been corroborated through the dying declaration made by the deceased when she says

Vikram shouted from inside.97

62.

Assuming that homicidal death is also a possibility, but the other two alternative hypothesesof suicide and accident cannot be eliminated.

63. It is pertinent to note that in a survey undertaken in India, out of 100 cases of female burns:70% of them are suicidal, 25% are accidental and only 3% are homicidal. 98 This factual data

shows that the probability of homicides is very low in case of female burn cases.

64. Also the Honble Supreme Court held that, If the dying declaration projected by theprosecution gets credence the alternative hypothesis of suicide can be eliminated

justifiably.99

In the case at hand, the dying declaration has been vitiated and thus the

alternative hypothesis of suicide cannot be eliminated justifiably. The Honble Supreme

Court, in Uka Ram v. State of Rajasthan100

stated that the probability of the deceased

committing suicide had not been eliminated keeping in mind her mental unsoundness and

thus the defence deserves a benefit of doubt and based on this reasoning the apex court

acquitted the accused.

97Proposition Pg.5

98Mental Health Research in India, Division of non-communicable diseases, Indian Council of Medical Research,

Ramalinga Swami Bhawan, ansari Nagar, New Delhi, 2005, Pg.121.

99Dandu Lakshmi Reddy v. State of Andhra Pradesh, (1999)7SCC69

100Supra note at 9


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65. Also, Sir James Stephen, drafter of the Indian Evidence Act, 1872 stated that,It (dying declaration) has worked, I am informed, ill in India, into which

country it has been introduced together with many other parts of the Englishlaw of evidence. I have heard that in Punjab the effect of it is that a person,

mortally wounded, frequently makes a statement bringing all his hereditary

enemies on the scene at the time of his receiving his wound, thus using his last

opportunity to do them an injury. Such evidence, he said ought never to be

admitted in any case. What motive for telling the truth can any man possibly

have when he is at the point of death?101

66. The Supreme Court in Ram NathMadhoprasad&Ors. v. State of Madhya Pradesh102, statedthat In all likelihood the names he (the deceased) mentioned at the time (of his dying

declaration) were the result of the reaction on his mind on the occasion. He thought he must

have been fired upon by his arch enemies. The apex court held that the dying declaration

made be made in state of confusion and the declarant might well be drawing upon his

imagination and thereby convicted the accused entitling him to a benefit of doubt.

67.Similarly, it may a be the case that the deceased had been nurturing a grudge against herhusband for a long time to his materialistic nature or lack of attention towards the deceased

and thus while committing suicide, she may have tried to implicate the accused so as to make

his life miserable. It is pertinent to note the nature of relationship that the couple shared was

unhealthy. It is on the basis of an unhealthy relationship that the couple shared in P. Mani v.

State of TamilNadu103

that the apex court could gave the accused a benefit of doubt.

101Rao, Kesava, Law of Evidence, 18 edition, Vol.2, Lexis NexisButterworthsWadhwa, Nagpur,Pg.1885

102Supra note at 40

103Supra note at 96, Deceased wife had not been keeping good relations withaccused-husband and was labouring

under belief that husband was having an affair , shewas suffering from depression and had made an earlier attemptfor suicide


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68. The prosecution has not proved its case beyond all reasonable doubt that the accused pouredkerosene oil and set fire to the deceased. Also as per the post mortem report, there were only

minor traces of kerosene found on the bottom of her sari. If one is pouring kerosene on the

other, there will not be mere minor traces of kerosene instead one should reasonably find

major kerosene traces. Also, if the intention of the accused was to murder her then they

would have confined her inside the house, but the fact that she wasnt confined and came

running out of the house goes against the accusation that the intention of the accused was

murder of the deceased.

69. It is pertinent to note that the nature of injuries as mentioned in the post mortem report arenot homicidal in nature creating further suspicion.

70. The case rests entirely on the dying declaration which lacks veracity as has been establishedearlier. In such a situation it is highly unsafe to place reliance on any of these dying

declarations and convict the appellant.104

Dying declaration by itself is not sufficient to

convict a person unless the said dying declaration is absolutely clear and no doubt can be

raised about the dying declaration.105

71. Also, the dying declaration recorded by the investigating officer without explaining the non-availability of the doctor and the magistrate was held not free from suspicion and hence was

discarded.106

72. Also in Dhula Ram v. State of Rajasthan107, the Rajasthan High Court stated that when thedoctor was available, there was no justification for the Head Constable recording the dying

declaration. The Court further stated that Investigating Officers are generally interested in the

104Kamlav. State of Punjab, (1993) 1 SCC 1

105

KajalSarkarv. State of Assam, (1993) 1 Gau LR 458.

106State (Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250; : Imtiazv. State (Delhi) (1986) 2 Crimes 23

(Del) (DB): A dying declaration before a magistrate, if free from any doubt is often vey respected, a dying

declaration made before a doctor by the victim is also valuable but a dying declaration before a police officer whenhe has the chance of fetching a magistrate does nt enjoy the same respect; Rao, Kesava, Law of Evidence, 18th

edition, Vol.2, Lexis NexisButterworthsWadhwa, Nagpur,Pg.1949.

107Dhula Ram v. State of Rajasthan, 1995CriLJ4057(Raj)


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success of the investigation and, therefore, the practice of recording the dying declaration by

them during the course of investigation should not be encouraged.

73. In Dallp Singh and Ors. v. State of Punjab,108 the Supreme Court has pointed out:We may also add that although a dying declaration recorded by a Police

Officer during the course of the investigation is admissible under s.32 of

the Indian Evidence Act in view of the exception provided in Sub-s. (2)

of s.162 of the CrPC, 1973, it is better to leave such dying declarations

out of consideration until and unless the prosecution satisfies the court as

to why it was not recorded by a Magistrate or by a doctor.

74.

Similarly in the case at hand there is no explanation given for adopting a procedure where inthe police sub inspector has recorded the dying declaration instead of the Magistrate or the

doctor which raises suspicion about the veracity of the dying declaration.

75. All possible chances of innocent man being convicted have to be ruled out and there shouldbe no hostile atmosphere against an accused in court.

109A hostile atmosphere is bound to

interfere in an unbiased approach as well as a decision.

76. Thus, keeping in mind that all possible chances of the accused being innocent have not beenruled out in the case at hand, it is humbly submitted that the accused should be given a

benefit of doubt.

108Dallp Singh and Ors.v. State of Punjab, A.I.R. [1979] S.C. 1173 reaffirmed by State (Delhi Administration) v.

Laxman Kumar, AIR 1986 SC 250

109Supra note at 106


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PRAYER

Wherefore it is humbly prayed that in the light of issues raised, arguments advanced and

authorities cited, the Honourable Sessions Court may be pleased to acquit the defendant of the

charge of murder, dowry death and cruelty as per s.302,s.304-B and s.498-A respectively read

with s.34 of the IPC, 1860 and thus render justice.

All of which is most humbly prayed.

Counsel for the Defendant

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