HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 10/2011

Mangi Lal S/o Moolchand, B/c Nayak, R/o Nagrana, P.S.
Sangaria, District Hanumangarh.
—-Appellant
Versus
State of Rajasthan
—-Respondent
Connected With
D.B. Criminal Appeal No. 624/2010
Duli Chand S/o Madanlal, B/c. Nayak, R/o Nagrana, P.S.
Sangaria, District Hanumangarh.
—-Appellant
Versus
State of Rajasthan
—-Respondent

For Appellant(s) : Mr. H.S.S. Kharlia, Sr. Adv. with Mr.
Rishabh Handa
For Respondent(s) : Mr. Vishnu Kachhawaha, PP

HON’BLE MS. JUSTICE NIRMALJIT KAUR
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Reportable Judgment

Per: Hon’ble Ms. Nirmaljit Kaur,J.

26/09/2018

Both the appeals shall stand decided by this common

judgment as they arise out of the common impugned judgment.

The present appeals are preferred against the judgment and

order dated 25.11.2010 passed by the Additional Sessions Judge,

Sangaria, Hanumangarh in Session Case No.21/2009 vide which

the appellants were acquitted for the offence under Section 406
(2 of 9) [CRLA-10/2011]

IPC but convicted for the offences under Section 304-B, 498-A

IPC.

As per the prosecution story, Smt. Rajwanti wife of Dulichand

made a statement on 23.5.2009 before Gopal Singh, ASI PW-15 at

2.30 pm. alleging that her father’s name was Sheopat Ram and

her maternal home is at Singhpura. They are five sisters and two

brothers. Her marriage was solemnized four years ago and she

has one son Abhishek aged about 02 years. Her elder sister

Santosh was married to one Mangi Lal. Her own marriage and that

of her sister was solemnized on the same date. She had come to

her parents house along with her father, when on 23.5.2009 at

abut 11 O’ Clock, her husband Dulichand and her brother in law

Mangi Lal came to her father’s house in drunken condition. At that

time, her elder Sister Santosh, mother Vimla Devi and younger

sisters Nirmala and Chandrakala were present in the house. Her

husband Dulichand was talking to her mother and sisters while

Mangi Lal who had gone out to urinate came back suddenly and

entered her room while she was alone in the room and feeding her

two years child. Mangi Lal poured kerosene oil on her and set her

on fire. She ran outside raising hue and cry while Mangi Lal ran

away by jumping the wall but was caught by the neighbours on

the spot. Her husband too was caught while running away. Dilip

Nayak, Krishan Nayak and some more people who came after

hearing the noise extinguished the fire by pouring water and

putting blanket on her. It was further alleged by her that her

mother in law Gurdeep and her husband Dulichand used to harass

her for dowry.

An FIR No.292/2009 was registered at P.S. Sangaria,

Hanumangarh on 23.05.2009 at 3.45 p.m. on the basis of the
(3 of 9) [CRLA-10/2011]

above statement under Section 307/34, 498-A, 406 IPC. However,

she died on 23.05.2009 while undergoing treatment in the

hospital. Hence, charges were framed under Section 304-B, 498-A

and 406 IPC against Duli Chand and Mangi Lal. No challan was

filed against the mother in law. During the course of trial, 16

witnesses were examined on behalf of the prosecution and 36

documents were got exhibited in evidence. Thereafter, the

statement of the appellants were recorded under Section 313

Cr.P.C. No witness was examined on behalf of the defence. The

appellants were acquitted for the offence under Section 406 IPC

but convicted and sentenced both under Section 304-B and 498-A

IPC as under:-

Appellant Offence Sentence Fine In default
Mangi Lal 304-B, Life Rs.1000/- 01 month
498-A Imprisonment, Rs.1000/- imprisonment
IPC Three years 01 month
imprisonment imprisonment
Dulichand 304-B, Seven Years Rs.1000/- 01 month
498-A Imprisonment, Rs.1000/- imprisonment
IPC Three years 01 month
imprisonment imprisonment

Vimla Devi PW-8 is the mother of the deceased and Santosh

PW-6 is the real sister of deceased. Both are eye witnesses. Both

the witnesses have not supported the prosecution story. They

were declared hostile by the prosecution. In fact, they specifically

stated that the appellants had never demanded any money from

them. Deceased was never harassed for demand of dowry. Nobody

lit her on fire. She got angry because her husband had come to

complain that she was regularly talking to some another man on

phone. She went inside in anger and came out after setting herself
(4 of 9) [CRLA-10/2011]

on fire. Mangi Lal had gone out to urinate. On seeing her burning,

her uncle Om Prakash told them to put the allegation on Mangi

Lal. Hence, they put the blame on Mangi Lal. Similar statement

was made by Santosh PW-6, the real sister of the deceased who is

also the eye witness. She too was declared hostile but repeated

the version of Vimla Devi that deceased had set fire on herself and

not Mangi Lal. Om Prakash PW-1 and Shimla PW-2 are the real

uncle and aunt of the deceased. They came at the spot after the

fire had been extinguished. Both the witnesses have stated that

the in laws of the deceased never harass the deceased and nor

demanded any dowry. Sheopat Ram PW-7, the father of the

deceased and Saraswati Devi PW-11, another aunt of the

deceased too have not supported the prosecution story and were

declared hostile but stated in no uncertain terms that Dulichand

and Mangi Lal did not make any demand of dowry. Krishan PW-3

and Dalip PW-9 are the witnesses who came on the spot and

extinguished the fire. As per Krishan and Dalip, Rajwanti was on

fire and that when they arrived and her family was trying to

extinguish the fire. They too joined hand with Dulichand – the

husband of the deceased who was also helping to extinguish the

fire along with other family members. Similarly, Savitri who is also

the real aunt of deceased appeared as PW-5 and stated that she

never heard about demand of dowry. Sheopat Ram – father of the

deceased appeared as PW-7 and stated that Duli Chand never

demanded any dowry but off and on they used to quarrel on trivial

issues. It is further stated by him that when he asked her

daughter as to how she got burnt, she told that she herself had lit

the fire. Saraswati Devi – PW-11 another aunt (Masi) stated that

she was told by the parents of the deceased that the deceased
(5 of 9) [CRLA-10/2011]

had lit fire on herself out of anger and nobody even told her about

any demand of dowry.

Learned counsel for the respondent-State while defending

the order and judgment dated 25.11.2010 passed by the trial

court submitted that the dying declaration cannot be ignored. The

witnesses have turned hostile because admittedly a compromise

had taken place between them. The fact of compromise has been

admitted by the witnesses in their cross examination. Moreover,

the other daughter is married to Mangi Lal and any statement

against Mangi Lal would have ruined the family life of their

daughter Santosh. Therefore, it is in these circumstances that all

the witnesses have turned hostile.

Learned counsel for the parties were heard at length.

From the discussion as above, there is not an iota of

evidence to support the two separate statements of the deceased

made on the date of incident i.e. 23.5.2009 at 2.30 pm. and 4.30

pm. respectively. She subsequently died on 23.05.2009. As per

the port mortem report, the cause of death is stated to be shock

resulting from burn (extensive) which is ante mortem and

sufficient to cause death. In fact, the prosecution itself has

disbelieved the dying declaration and put up the case under

Section 304-B IPC instead of 302 IPC.

It would no doubt be highly dangerous to rely on the dying

declaration in view of the following:

(a) The deceased in her statement has specifically mentioned

that she was feeding her 02 years child in the room when Mangi

Lal poured kerosene on her and lit her on fire. Surprisingly, not

even a scratch or sign of any burn has come on her child. In her

second statement, the deceased improved her statement and
(6 of 9) [CRLA-10/2011]

submitted that she had stood up after putting the child on the bed

when the kerosene was poured on her. In the first statement

recorded on 23.5.2009 at 2.30 pm., she has named her mother in

law and husband for demanding dowry whereas in the second

statement recorded before SDM, Sangria, she has left out her

husband and named only her mother in law and Mangi Lal. Thus,

there is inconsistency in both the statements.

(b) The incident is in the house of the parents while the family is

at home. Such an action by the accused in the parental house is

unlikely.

(c) Allegations are against Mangi Lal, husband of her sister. He

has no motive.

(d) Both the eye witnesses i.e. PW-8 who is the mother and PW-

6 who is the real sister have admitted that the deceased had set

herself on fire while Mangi Lal and Duli Chand were both outside

the house and they saw her coming out from her room while still

on fire. It was in these circumstances that the charge was framed

under Section 304-B and not under Section 302 IPC. The very fact

that the charge was framed under Section 304-B shows that her

dying declaration was disbelieved by the trial court at the very

first instance and the charges therefore were framed under

Section 304-B IPC.

Now, this Court requires to see whether Section 304-B IPC is

made out or not. There is no evidence worth the name with

respect to the allegation under Section 304-B IPC except that the

death has occurred within seven years of the marriage.

In order to make out a case under Section 304-B IPC, the

ingredients of Section 113 B of the Evidence Act should be

satisfied. Section 113 B of the Evidence Act reads as under:-

(7 of 9) [CRLA-10/2011]

113B. Presumption as to dowry death.–When the
question is whether a person has committed the
dowry death of a woman and it is shown that soon
before her death such woman has been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry
death.

Explanation.–For the purposes of this section, “dowry
death” shall have the same meaning as in section
304B, of the Indian Penal Code, (45 of 1860).

Thus, to make out a case under Section 304-B IPC, it is

necessary to show that there was demand of dowry and the said

demand was immediately before the death. No evidence has come

forward qua the demand of dowry being raised before her death.

All the witnesses including the mother, father, all relatives and

neighbours have specifically stated that there was no demand. The

neighbours and other relatives have specifically stated that they

have never ever heard about any demand of dowry by the accused

and their family members. Thus, the prosecution has miserably

failed to prove the case under Section 304-B IPC as well. Similarly,

there is no evidence with respect to offence under Section 498 or

498-A IPC either. In fact, it is not understood as to how the

allegations could ever be believed against Mangi Lal. Mangi Lal is

the husband of sister of the deceased. There is no motive or

reason for him to demand the dowry on behalf of Dulichand and

his family.

The argument that the witnesses turned hostile on account

of the compromise having been arrived at between the parties is

of no consequence in the facts of the present case. The

statements of the deceased which are read as dying declaration

were found false by the prosecution itself. In case, the statement
(8 of 9) [CRLA-10/2011]

of the deceased was to be accepted, the charges would have been

framed under Section 302 IPC whereas the charges were framed

under Section 304-B IPC. There was no allegation with respect to

the demand of dowry even in the statement under Section 161 of

the Cr.P.C., therefore, the question of her changing the very

version subsequently qua the demand of dowry on account of

compromise does not arise. The incident took place in the house

of her father where the entire family was present. It is hard to

believe that Mangi Lal who does not have any motive would pour

kerosene on the deceased. Therefore, they have only come

forward and stated the truth on good sense having prevailed upon

them subsequently.

Even the statement of the hostile witnesses cannot be

ignored outright as held by the Apex Court in the case of Lella

Srinivasa Rao Vs. State of Andhra Pradesh:: AIR 2004 SC

1720 in almost similar set of circumstances. Para 14 of the said

judgment reads as under:

“We have earlier noticed the evidence examined by the
prosecution in support of its case that the deceased
was treated with cruelty by both the accused.
However, the witnesses including the father of the
deceased have not supported this case. In fact, the
father of the deceased namely, PW-1, in his deposition
stated that misunderstandings arose between his
daughter and her husband on account of the fact that
the three children of the deceased sister of the
appellant were being brought up in the house of the
appellant which was objected to by the deceased. If in
those unfortunate circumstances the three children of
the deceased sister of the appellant were being
brought up in his family, one cannot blame the
appellant or his parents for having shown compassion
towards the children of his deceased sister. If that is
what caused annoyance to the deceased, one cannot
equate such conduct with cruelty or harassment. We
also find no reason why on this aspect of the matter
the father of the deceased should not speak the truth.
In any event, he and his family members were the
(9 of 9) [CRLA-10/2011]

only persons who could have deposed about the
treatment meted out to the deceased. All of them have
denied the suggestion that the appellant or his
mother-in-law treated the deceased with cruelty. The
fact that these witnesses have been declared hostile
by the prosecution, does not result in the automatic
rejection of their evidence. Even the evidence of a
hostile witness if it finds corroboration from the facts
of the case may be taken into account while judging
the guilt of an accused. In any event, if their evidence
is kept out of consideration, there is no other evidence
to prove the prosecution allegation of cruelty and
harassment meted out to the deceased. Having regard
to the inconsistency in the two dying declarations we
do not find it safe to act solely on them to convict the
appellant, and for that reason even accused No.2, the
mother of the appellant who has since served out her
sentence. ”

In view of the above discussion, both the appeals are

allowed. The judgment and order dated 25.11.2010 passed by the

Addl. Sessions Judge, Sangria, Hanumangarh is set aside and the

appellants are acquitted of the charges levelled against them

under Section 304-B and 498-A IPC.

(VINIT KUMAR MATHUR),J (NIRMALJIT KAUR),J

Praveen/23-24

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