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ARUNIMA BISHNOI
LL.B. 1st Year
Section E
Roll no. - 151048
Campus Law Centre
Date: 23rd September, 2015
Criminal Appeal, under Sections 379 and 380 of the Cr.P.C., to the Honble Supreme
Court of Delhi on behalf of the appellants for their conviction by the High Court of
NCT of Delhi for the offence of Cruelty, Demanding Dowry and Murder.
v.
[TABLE OF CONTENTS]
TABLE OF CONTENTS
INDEX OF AUTHORITIES .. 4
STATEMENT OF JURISDICTION . 5
STATEMENT OF FACTS . 6
STATEMENT OF ISSUES .8
SUMMARY OF ARGUMENTS .9
ARGUMENTS ADVANCED 10
A. THE ACCUSED CANNOT BE CONVICTED ON THE BASIS OF DYING
DECLARATIONS...............................................................10
I. There is inconsistency and material discrepancy in the dying declarations
II. The third dying declaration appears to be tutored11
III. The dying declaration is not supported by a corroborate evidence......12
B.
C.
PRAYER .17
[INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
JUDICIAL PRECEDENTS
Anmol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468
11
Bhadragiri Venkata Ravi v. Public Prosecutor, High Court of A.P., (2013) 14 SCC 145
11
16
14
10
12
10
16
11
11
12
15
14
16
15
14
14, 15
10
13
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[STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
The Honble Supreme Court has the jurisdiction to hear the matter under Sections 379 and 380
of the Code of Criminal Procedure, 1973
379. Appeal Against Conviction By High Court In Certain Cases
Where the High Court has, on appeal reversed an order of acquittal of an accused person and
convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a
term of ten years or more, he may appeal to the Supreme Court.
380. Special Right Of Appeal In Certain Cases
Notwithstanding anything contained in this Chapter, when more persons than one are convicted
in one trial, and an appealable judgment or order has been passed in respect of any of such
persons, all or any of the persons convicted at such trial shall have a right of appeal.
[STATEMENT OF FACTS]
STATEMENT OF FACTS
BACKGROUND
1. After a relationship of 5 years, Anil (i.e. the appellant husband) and Riya (i.e. the deceased
wife) got married on 15.09.2011. They were living in their newly rented home in
Mukherjee Nagar, where Riya used to give tuitions to law students, in order to financially
help Anil.
2. On 15.07.2013, Riya was admitted in the government hospital at 2:00 p.m. with 44%
burns.
3. Her statement was recorded by the Head Constable of police, wherein she stated that she
accidentally got the burns at 8:00 p.m. on 14.07.2013 due to a burning candle when she
went to check the circuit box and because of the rain and wind, nobody got to know about
the incident. She also stated that her friend Saumya brought her to the hospital. On the
basis of this, an FIR was registered.
4. On the same day (i.e. 15.07.2013), a statement was also recorded by the Executive
Magistrate, after getting the fitness certificate from the doctor. This was similar to her first
statement, with the additional detail of her husband being in office at that time.
5. On 23.07.2013, a dying declaration was recorded by the Executive Magistrate in the
presence of Riyas parents and brother, wherein she gave a completely new account of the
incident. She stated that as a result of quarrel, her husband set her on fire. When he was
dousing off the fire, a neighbour Srinu came and helped. He asked Srinu not to reveal
anything. After her in-laws came, she was taken to a private hospital on 15.07.2013 and
then to the government hospital on 16.07.2013.
6. On 14.08.2013, Riya passed away in the hospital as a result of septicaemia shock due to
ante-mortem burns (revealed by post-mortem). The police altered the FIR into offences
under Sections 302, 498A IPC and filed a charge sheet against Anil, his father, his mother
and his foster sister on 03.12.2013.
JUDICIAL PROCEEDINGS
7. The trial court acquitted all the accused in its decision on 08.05.2014. as the prosecution
could not prove any case against either of them beyond reasonable doubt.
6
[STATEMENT OF FACTS]
8. Hence, the State preferred a criminal appeal before the High Court of Delhi, wherein the
appellant mother, father and sister were convicted under Section 498A IPC and Section 4
of the Dowry Prohibition Act 1956 and the appellant husband was convicted under Section
302, 498A IPC and Section 4 of the Dowry Prohibition Act 1956 on 17.10.2014.
9. The decision of the High Court (HC) was based upon the evidences produced, i.e. the letter
written by Riya to her mother Jamini on 17.12.2012 (wherein she talked about the taunts
of Anils parents, dowry demand by the foster sister, lack of support by Anil, life in the
new rented home and the suspicion of extra-marital affair of Anil), the deposition of the
neighbour Srinu who corroborated the presence of Anil during the incident, deposition of
Riyas mother that the relation between Riya and Anil were strained, and Riyas dying
declaration.
10. Aggrieved by the order of the HC, appellants Anil and his family have now petitioned
before this Honble Court. The matter is admitted and listed for hearing.
[STATEMENT OF ISSUES]
STATEMENT OF ISSUES
II.
III.
B. Whether the appellants can be held liable for cruelty and dowry demand?
I.
II.
C. Whether the circumstantial evidences prove the guilt beyond reasonable doubt?
I.
II.
[SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
[ARGUMENTS ADVANCED]
ARGUMENTS ADVANCED
I.
1. The 3 dying declarations of the deceased wife, Riya, are inconsistent. In the first two
declarations, she states that the incident was accidental, while in the last declaration, she
deviates from her stand altogether and accuses the appellant husband of setting her on fire.
2. Dying declaration should be such as to inspire full confidence. And like any other
evidence, it has to be tested on the touchstone of credibility to be acceptable.3 Changing
the incident from a mere accident to an act of murder, that too after 8 days of the incident
1
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[ARGUMENTS ADVANCED]
and after giving two consecutive statements which do not inculpate the appellant husband
of any crime, does not inspire full confidence.
3. Also, the third dying declaration which incriminates the husband is self-contradictory and
unreliable. Riya stated that she was admitted in a private hospital on 15.07.2013 by her
husband and in-laws and around 12 noon on the next day (i.e. 16.07.2013), they brought
her to the government hospital. It is completely in contrast with the hospital records which
show that she was admitted at 2:00 p.m. on 15.07.2013 by her friend, Saumya.
4. The Court has to examine the nature of discrepancies, namely whether they are material
or not.4 In this case, discrepancy regarding who brought her to the hospital, when she was
brought to the hospital, and to which hospital she was brought to, cannot be considered a
normal error of observation, nor a normal error of memory due to lapse of time.
5. In the case of Bhadragiri Venkata Ravi v. Public Prosecutor, High Court of A.P.5, this
Honble Court held,
It is a settled legal proposition that in case there are apparent discrepancies in two dying
declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused
gets the benefit of doubt. In case of plural/multiple dying declarations, the court has to
scrutinise the evidence cautiously and must find out whether there is consistency
particularly in material particulars therein. In fact it is not the plurality of the dying
declarations but the reliability thereof that adds weight to the prosecution case.
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[ARGUMENTS ADVANCED]
Where at the time of recording of the dying declaration, the deceased was surrounded by
his own people, veracity of the said statement, therefore, cannot be said to be completely
beyond doubt.
3. Also, cases are quite common where the wife is virtually pushed to a position of utter
desperation due to unhappiness and marital discord which results in an attempted suicide
and at a later point of time when questions are put, one cannot eliminate the possibility of
false implication, out of a sense of vendetta, or if the victim feels guilty of having attempted
the suicide.8
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[ARGUMENTS ADVANCED]
I.
According to Section 498A11, Whoever, being the husband or the relative of the husband
of a woman, subject 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 purposes 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.
1. According to the letter allegedly written by Riya to her mother Jamini, Anils parents,
especially mother, used to taunt her in respect of bad luck brought by her to the family.
She was also unhappy regarding Anils estrangement over the fact that her father could
not give any dowry despite being from a big family.
All these petty discords do not amount to cruelty and harassment for dowry under Section
498A.
2. She also stated that her life is peaceful after shifting to their newly rented home, away from
her in-laws place. And there was a long gap of 7 months between the sole letter written
by her and the occurrence of the fatal incident. All this shows that these disputes were not
persistent.
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[ARGUMENTS ADVANCED]
3. Ingredients of cruelty as contemplated under section 498A are of much sterner degree
than the ordinary concept of cruelty applicable for the purposes of divorce. The acts or
conduct should be either such that may cause danger to life, limb or health or cause grave
injury or of such a degree that may drive a woman to commit suicide.12
4. In the case of Girdhar Shankar Tawade v. State of Maharashtra13, this Honble Court
held,
It is not every such harassment but only in the event of such a harassment being with a
view to coerce 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. Also, there shall have to be a series of acts in order to be a harassment
within the meaning of explanation (b).
5. Lastly, if at all a demand was made for dowry, it was by the foster sister of Anil.
In order to be charged under Section 498A IPC, one has to be relative of husband by
blood, marriage, or adoption. Being foster sister of complainants husband and not being
his relative in any manner, cannot be tried for offence under Section 498A14
According to Section 415, If any person demands directly or indirectly, from the parents
or other relatives or guardian of a bride or bridegroom as the case may be, any dowry,
he shall be punishable with imprisonment for a term which shall not be less than six
months but which may extend to two years and with fine which may extend to ten
thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six months.
12
14
[ARGUMENTS ADVANCED]
1. No demand of dowry by Anil and his parents can be inferred from the letter. The only
demand was from his foster sister. But that also does not come under the purview of dowry
demand for the purpose of this Act16.
2. In the case of Sankar Prosad Shaw v. State17, the Honble Calcutta High Court held,
Although in common parlance one very often uses the term dowry demand in the cases
where the husband or his relations demand valuable security from the parents and other
relations of the wife after the marriage, yet this will not amount to demand for dowry under
the Act in view of the definition of dowry contained in Section 2 of the Act. Demand for
dowry under the Act and in the legal sense will mean the demand for dowry only when it
refers to property of valuable security given or agreed to be given at or before or after the
marriage.
3. There is no corroborate evidence to prove if any property or valuable security was given
before or after the marriage or if there was any agreement regarding the same. In fact, the
expression of the letter shows that there was no such transaction or agreement.
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I.
[ARGUMENTS ADVANCED]
1. Despite revealing the taunts, dowry demand and disharmony in her marital life, there is no
proof of further communication between Riya and her mother. It is quite unusual that there
was only a single letter written by her regarding these problems, and that too after a year
of her marriage. It casts a grave doubt on the authenticity of the letter.
2. Also, the vacillating emotions and apprehensions expressed in the letter (first, the
estranged behaviour of Anil and then the suspicion of his extra-marital affair) and the
persisting unhappiness in her marital life despite shifting to a new home, suggest that the
deceased might be hyper-sensitive. Thus, there is a possibility that Riya committed
suicide on being unable to bear the disharmony in her marital life.
In Prem Singh v. State of Haryana19, this Honble Court held that the deceased was
hyper-sensitive and as a result, the in-laws could not be convicted of the offence.
1. The evidence of mother, being a relative and partisan witness, does not constitute a wholly
reliable evidence. There is a serious possibility of her deposition to be influenced by
emotions and grief of the loss of her daughter. As a result, deposition by such a witness
against the accused lacks credibility and does not prove the guilt beyond reasonable doubt.
The evidence of a partisan witness has to be analysed with care and scrutiny.20
2. Further, silence of the mother between the occurrence of the incident and the recording of
the third dying declaration indicates that she also believed it to be an accident.21
Finally, Anil's individual conviction under Section 302 of the IPC and his conviction, together
with his family, under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act is
based only upon circumstantial evidences including inconsistent dying declarations, a doubtful
letter and unreliable depositions, which fail to prove the guilt beyond reasonable doubt. Hence,
the conviction should be overruled.
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[PRAYER]
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