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Prem Sheela @ Guddi vs State Of U.P. on 3 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

RESERVED

Court No. – 87

Case :- CRIMINAL APPEAL No. – 558 of 2019

Appellant :- Prem Sheela @ Guddi

Respondent :- State of U.P.

Counsel for Appellant :- Anjali Singh,Na

Counsel for Respondent :- G.A.

With

Case :- CRIMINAL APPEAL No. – 564 of 2019

Appellant :- Kusum Devi And Another

Respondent :- State of U.P.

Counsel for Appellant :- Anjali Singh

Counsel for Respondent :- G.A.

Hon’ble Virendra Kumar Srivastava,J.

1. Both criminal appeals have been filed against the judgment and order dated 29.11.2018, passed by Additional Session Judge/F.T.C. (Offences against Women), Jaunpur, in S.T. No. 389 of 2013 (State of U.P. Vs. Kusum Devi and others), arising out of Case Crime No. 371 of 2013, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act (in short ‘D.P. Act’), P.S. Chandvak, District Jaunpur whereby appellants, namely, Prem Sheela @ Guddi, Kusum Devi and Brijbhan Gaur have been convicted and sentenced for offence u/s 498-A IPC for 2 years imprisonment and fine of Rs. 5000/-, for offence u/s 304-B IPC for 7 years rigorous imprisonment and u/s 3/4 D.P. Act for one year imprisonment and with fine of Rs. 1000/-. All the sentences have been directed to run concurrently. Since both the appeals have been filed against the same judgement, hence both are being heard and decided jointly by common judgement.

2. Brief facts, arising out of this appeal, are that deceased Pratiksha Gaur was married to Hari Kishan (PW-2), s/o Banarasi, R/o Village Kanaura, P.S. Chandvak, District Jaunpur, in December 2007 in mass wedding ceremony. Appellant Brijbhan Gaur is brother-in-law of Hari Kishan (PW-2), appellant Kusum Devi is his sister (wife of appellant Brijbhan), appellant Prem Sheela @ Guddi is his niece (daughter of Kusum Devi) and one Subhash (since acquitted) is real brother of Hari Kishan (PW-2). Asha Devi (PW-1), mother of deceased Pratiksha, lodged a written information (F.I.R.) (Ex.ka1) on 9.6.2013 at about 9:50 p.m. at P.S. Chandvak, District Jaunpur that aforesaid appellants and Subhash (since acquitted) used to torture the deceased Pratiksha for want of dowry. On 8.6.2013 at about 7:30 p.m., appellants and Subhash (since acquitted) poured kerosene oil on deceased Pratiksha and set her ablaze, whereby serious burn injuries were caused to deceased; information of the said incident was given to Asha Devi (PW-1) by Hari Kishan (PW-2), upon such information she (PW-1) rushed to place of occurrence and learnt that her daughter was in hospital. Thereafter, she rushed to the hospital and found that the deceased was struggling for her life in District Hospital, Jaunpur. The information, given by Asha Devi (PW-1) was entered by police in General Diary (Ex.Ka 9) and on the basis whereof, Case Crime No. 371 of 2013 was registered by Const. Vinod Saroj (PW-8), under Sections 498-A, 307 IPC and 3/4 D.P. Act, against the appellants as well as against Subhash (since acquitted). Investigation was entrusted to S.I. Mata Prasad (in short ‘Ist I.O.’) who rushed to the place of occurrence and after its inspection, prepared site plan (Ex.Ka 10), seized kerosene oil with plastic jerrycan, match box and prepared seizure memo (Ex.Ka 3).

3. Ram Kailash Saroj (PW-7), Naib Tehsildar (Local Executive Magistrate), upon oral direction of Sub-Divisional Magistrate, Sadar Jaunpur, reached the District Hospital, Jaunpur where deceased was admitted and her treatment was going on. He recorded the statement (Ex.Ka 11) i.e. dying declaration of deceased on 9.6.2013 in the intervening night of 9.6.2013 at about 12:10 a.m. (night) which reads as under:

e`R;q dkfyd c;ku fnuakd 09-06-13

izekf.kr fd;k tkrk gS izrh{kk mez yxHkx 24 yrs w/o gjhfd’ku xkSM+ dukSjk MksHkh c;ku nsus dh fLFkfr esa gS ,oa gks’kks gokl es gSA

12-10 A.M. g0 viBuh;

(Dr.Prabhat)

vkdfLed fpfdRlkf/kdkjh

v0’k0m0 ukFk flag ftyk fpfdRlky;

tkSuiqj

izkjEHk % 010 A.M.

eS izrh{kk vk;q yxHkx 24 o”kZ iRuh gjhfd’ku xkSM+ fuoklh xzke dukSjk MksHkh Fkkuk pUnod bZ’oj dh ‘kiFk ysrh gwW tks dgwWxh lp dgwWxhA lp ds flok; dqN u dgwWxhA

iz01 vki dSls ty xbZ

m0 esjh ‘kknh lu~ 2007 esa 12 fnlEcj dks gjh fd’ku mQZ larks”k ds lkFk jkt dkyst eas vk;ksftr lkewfgd fookg lekjksg esa gqbZ FkhA eS i+uk pkgrh Fkh esjh uun Jherh dqlqe o uunksbZ c`tHkku tks esjs llqjky esa gh jgrs gS eqs i s esjh uun dqlqe o mldh csVh xqM~Mh us ,d o”kZ iwoZ ngst ds fy, dkQh izrkfM+r djus yxs vkSj eqs dkQh ekjkihVkA os yksx cjkcj eqs ?kj ls Hkxkus dh ckr djrs gSA esjs xkao ds xIiw flag iq u ekywe ftuds HkkbZ iqfyl foHkkx esa cukjl esa ukSdjh djrs gS os vkt lqcg nks flikfg;ksa ds lkFk esjs ?kj ij vk;s vkSj eqs xanhxanh xkfy;kW fnyok;s vkSj cksys fd ;g cM+h xM+Sy gS bls ekjks bruk dg dj os yksx pys x;s mlds ckn esjh uun o mldh csVh us fey dj cgqr ekjkihVk rFkk fnu Hkj xM+k pyrk jgkA ‘kke dks yxHkx lkr cts esjh uundqlqe vk;q 38 o”kZ iRuh c`tHkku o mudh csVh xqM~Mh vk;q yxHkx 2122 o”kZ iqh c`tHkku o c`tHkku iq ¼’kk;n½ feJh o ftrsUnz mQZ ekuh o xksyw us fey dj dj esjs Åij feÍh dk rsy Mkydj ekfpl ls tyk fn;sA ¼fQj dgk fd½ xksyw tykus esa ugh FkkA xqM~Mh us feÍh ds rsy ds IykfLVd ds xSyu ls esjs Åij feÍh dk rsy Mkyk ml le; c`tHkku us eqs idM+ j[kk Fkk va/ksjs esa eqs fdlus tyk fn;k eS mls ugha ns[k ik;hA dqlqe Hkh eqls yM+ jgh FkhA eqs tyrk gqvk ns[kdj lHkh yksx NksM+ dj x;sA

iz02 vkx dSls cqh

m0 tc eqs tyk dj Hkkx x;s rHkh esjk ifr Hkës ij dke djds lkbfdy ls ?kj vk x;k vkSj eqs fdlh pht ls k fn;kA

iz03 vki dk ek;dk dgak gS

m0 esjk ek;dk jkt dyksuh gqlSukckn tkSuiqj esa gSA

iz04 vki dks vLirky dkSu yk;k

m0 esjk ekrk th vk’kk nsoh iRuh lgktw o esjs ifr eqs ,Ecwysal 108 ls vLirky yk;s gSA

iz05 D;k vki ds ifr Hkh ngst ds fy, izrkfM+r djrs Fks

m0 esjs ifr cgqr vPNs vkneh gSA mUgksus dHkh eqs ngst ds fy, izrkfM+r ugh fd;kA

c;ku i+dj o lqudj rLnhd fd;kA

lekIr 040 AM fu0va0 nk;k

Jherh izrh{kk

izekf.kr

g0 viBuh;

[email protected]@13

¼jke dSyk’k ljkst½

uk;c rglhynkj

lnj] tkSuiqj

izekf.kr fd;k tkrk gS fd c;ku nsrs le; ;g vius iwjs gks’kks gokl esa jghA

12-40 AM

g0 viBuh;

09-06-13

vkdfLed fpfdRlkf/kdkjh

v0’k0m0 ukFk flag ftyk fpfdRlky;

tkSuiqj ”

“Dying Declaration dated 09.06.13

Certified that Pratiksha aged about 24 years w/o Hari Kishan Gaur r/o Kanaura is fit to give statement and is in full conscious.

12.10 A.M. Signature illegible

(Dr. Prabhat)

Emergency Medical Officer

A.S.U. Nath Singh District Hospital

Jaunpur

Started 0-10 A.M.

I, Pratikcha aged around 24 years w/o Hari Kishan Gaur R/o vill-Kannaura Dobhi, PS-Chandwak swear in the name of god that I will state nothing but truth.

Q: How have you got burnt?

Ans: I got married on 12 December 2007 with Hari Kishan @ Santosh in the mass wedding ceremony held in Raj College. I wanted to study. My sister-in-law Kusum and my brother-in-law Brij Bhan who live in my in-law’s house, in order to not let me study, under different excuses and pretensions, got me separated from my family. Then around one year ago, my sister-in-law Kusum and her daughter Guddi, started torturing me for the purpose of dowry and beaten me badly. Every now and then, they used to talk about driving me out of the house. Gappu Singh S/o unknown of our village whose brother works in police department in Banaras, came today in the morning to our house along with two sepoys and started abusing me and said “She is quarrelsome; just beat her.” Saying this, he went away. Thereafter, my sister-in-law and her daughter beaten me badly and the quarrel ensued the entire day. In the evening around 7.00 p.m., my sister-in-law Kusum aged 38 years w/o Brij Bhan and her daughter Guddi aged 21-22 years D/o Brij Bhan and Brij Bhan S/o (Shayad?) Mishri and Jitendra @ Mami and Golu poured kerosene oil upon me, lit a matchstick and set me on fire. (Then stated that) Golu was not involved in setting fire. Guddi poured kerosene oil upon me with a plastic gallon. Brij Bhan was getting hold of me that time. I could not see it in dark as to who set me on fire. Kusum was also fighting with me. Seeing me set on fire, everybody ran away.

Q-2: How was the fire put off?

Ans: When they had set me on fire and ran away, my husband, after having completed his job in a kiln, came back by a cycle, and covered me with something and put off the fire.

Q-3: Where is your parent’s house?

Ans: My parent’s house is in Raj Colony, Husainabad, Jaunpur.

Q-4: Who brought you to hospital?

Ans: My mother Asha Devi W/o Sahju and my husband brought me to the hospital in the ambulance of 108.

Q-5: Did your husband also torture you for dowry?

Ans: My husband is a very nice man. He never tortured me for dowry.

Heard and verified.

Concluded at 0-40 A.M. R.T.I. of Smt. Pratiksha

attested

sd/- illegible

09.06.13

(Ram Kailash Saroj)

Naib Tehsildar

Sadar, Jaunpur

Certified that she was in full conscious during statement.

12.40 A.M.

Sd/- Illegible

Emergency Medical Officer

A.S.U. Nath Singh District Hospital

Jaunpur”

(English translation by Court)

4. Deceased Pratiksha could not be saved and during treatment succumbed to severe burn injuries on 16.6.2013. After death of deceased the case was converted under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act and investigation was entrusted to Mayaram (PW-5), Deputy Superintendent of Police (Dy. S.P.) Kerakat, Jaunpur (in short ‘II I.O.’). Naib Tehsildar (Local Executive Magistrate), Ramesh Chandra Yadav (PW-6), upon information, proceeded to the place where dead body of the deceased was lying and got the inquest report and relevant police papers prepared by S.I. Vijay Bahadur, sealed the dead body and sent the same for post mortem examination to district hospital, Jaunpur. After investigation, charge sheet (Ex.Ka 5) was submitted against the appellants and Subhash Gaur (since acquitted) before the Chief Judicial Magistrate, Jaunpur, who took the cognizance of offence and since the offence was exclusively triable by the Session Court, he committed it for trial to Session Court in compliance of Section 209 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’), after providing the copies of relevant police papers to appellants and other co-accused.

5. Charges were framed by the Trial Court under Sections 498-A, 304-B I.P.C. alternatively u/s 302 I.P.C. and u/s ¾ D.P. Act, against the appellants as well as Subhash Gaur (since acquitted) who denied the prosecution case and claimed for trial.

6. In order to prove the prosecution case the prosecution examined Asha Devi (PW-1), Hari Kishan (PW-2), Dr. Ramesh Kr. Singh (PW-3), Anoop Kumar Gaur (PW-4), Mayaram (PW-5), Ramesh Chand Yadav (PW-6), Ram Kailash (PW-7), Vinod Saroj (PW-8), wherein PW-1, PW-2, PW-4 and PW-7 are witnesses of fact whereas rest witnesses are formal witnesses.

7. After the prosecution evidence, the statements of appellants and Subhash Gaur (since acquitted) were recorded under Section 313 of Code. They denied the prosecution story and stated that they have been falsely implicated. Appellant Kusum Devi further stated that she used to support her father and was residing at village Kanaura due to which deceased and her husband were annoyed with her. She had not set deceased ablaze. She has been falsely implicated, on the instigation of Hari Kishan (PW-2), by the informant Asha Devi (PW-1). Same statement/explanation was also given by appellants Brijbhan Gaur and Premsheela @ Guddi. They have further stated that they did not reside with deceased. Subhash Gaur (since acquitted) also stated that he was falsely implicated, he had not committed any offence and used to reside separately from the deceased.

8. Appellants were given opportunity by Trial Court to lead evidence in their defence but they did not produce any evidence. Upon considering the prosecution evidence, the Trial Court vide aforesaid impugned judgement and order, convicted and sentenced the appellants as above and acquitted the accused Subhash. Aggrieved by the said judgment and order these appeals have been preferred.

9. Heard Sri Kusumayudh Krishna Singh, Advocate holding brief of Sri Anjali Singh, learned counsel for appellant, Sri Asheesh Mani Tripathi, learned AGA and perused the record.

10. Learned counsel for the appellants has submitted that appellants are innocent and have been falsely implicated. Informant is not an eye witness; she had not disclosed that how she got the information of occurrence and her statement is not reliable because she has not supported the prosecution case in cross-examination. Learned counsel further submitted that the statement of Hari Kishan (PW-2) is also not reliable because he has also not supported the prosecution story in his cross-examination and his statement is contradictory also. It is submitted that the dying declaration of deceased is not reliable because it was tutored and tampered; circumstances under which Ram Kailash Saroj (PW-7) got the information/direction for recording the dying declaration are highly suspicious and doubtful; Asha Devi (PW-1), Hari Kishan (PW-2) and Anoop Kumar (PW-4), who were continuously present in hospital with deceased, have not stated anything about recording of dying declaration and Dr. Prabhat who had given fitness certificate regarding mental status of deceased as well as her capability to give statement, was not examined. Learned counsel further submitted that F.I.R. has been lodged by delay of more than 24 hours and no explanation has been given for such inordinate delay. Learned counsel further submitted that appellants are neither husband nor family members of deceased, they are nanad-nandoi and daughter of nanad of deceased hence there is no opportunity and justification to demand of dowry as well as to cause any harassment and cruelty to the deceased. Learned Trial Court has not appreciated the evidence available on record properly and has convicted the appellants in violation of settled principle of criminal law.

11. Per contra, learned A.G.A. has submitted that death of the deceased has been caused due to burn injury, within 7 years of her marriage, the place of occurrence is near the house where appellants used to reside and there is sufficient evidence available on record that prior to death of deceased she was subjected to cruelty, due to demand of dowry. Learned A.G.A. further submitted that prosecution case is well supported by the prosecution witnesses including Hari Kishan (PW-2) who is nearest relative of appellants and also husband of deceased. Learned AGA further submitted that dying declaration of deceased, recorded by Ram Kailash Saroj (PW-7) is wholly reliable. Learned A.G.A. further submitted that merely non-examination of doctor who had certified physical and mental capability of deceased to give statement, is not material in this case. Ocular evidence is wholly supported by the medical evidence. Prosecution has succeeded to prove its case beyond reasonable doubt. The impugned judgment and order requires no interference and appeals are liable to be dismissed.

12. I have considered the rival submission of learned counsels for both the parties and perused the record.

13. Asha Devi (PW-1), mother of deceased, has stated that her daughter Pratiksha was married in 2007 with Hari Kishan (PW-2). Whenever her daughter used to come to her maternal house, she used to state that appellants Kusum Devi (nanad), Premsheela (daughter of Kusum Devi), Brijbhan (nandoi) and Subhash Gaur (Jeth) (since acquitted) used to demand motorcycle in dowry and on account of that demand they used to harass and beat her. She has further stated that she tried to pacify the appellants but they did not stop harassing the deceased. On 8.6.2013 at about 7-7:30 p.m., her daughter (deceased) called upon her and when she reached, she found that appellants Kusum Devi, Brijbhan and Premsheela and Subhash (since acquitted) had caught the deceased, carried her inside the house and just thereafter deceased came outside the house in crying and burning state. She further stated that she raised alarm and at that time her son-in-law (Hari Kishan) came there and put off the fire. They rushed with deceased by ambulance to government hospital, Kerakat and thereafter, to district hospital, Jaunpur where her daughter was admitted for treatment but during treatment she (deceased) succumbed to injuries on 16.6.2013. She further stated that she got F.I.R. (Ex.ka 1) written by some unknown person and after putting her signature filed the same at P.S. Chandvak.

14. In cross-examination, she admitted that information regarding occurrence was given to her, on phone, by Hari Kishan (PW-2) and on getting information, she came to Chandvak from Jaunpur, where she learnt that her daughter was taken away by villagers to Sadar (District) Hospital, Jaunpur, thereafter she rushed to Sadar Hospital and found that her daughter’s husband and in-laws were getting her medically treated. She further admitted that, it was 9:00 p.m. of 8.6.2013, when she reached hospital; she had not given any information at Chandvak (police station). Rather she returned from Chandvak to Hospital. She further admitted that house of Subhash (since acquitted) is 100 feet away from house of Hari Kishan and between those two houses, there is house of Banarasi. Upon being questioned about F.I.R. she replied that she got the report written by some unknown bye-passer and at that time neither her daughter was present there nor her opinion was taken. She further deposed that she had gone, one hour before, to lodge F.I.R. from District Hospital Jaunpur to Chandvak (police station); Darogaji (Police) took her away Chandvak (police station) and got F.I.R. lodged by her. On the point of statement of deceased she replied that at that time condition of her daughter was not well due to severe burn injury; Darogaji (police) and other police personnels were present there with her daughter who had gone back after recording statement of her daughter and again returned on next day and took her (PW-1) to police station Chandvak and got F.I.R. written. This witness further admitted that Saas (mother-in-law), Sasur (father-in-law), Nandoi (appellant Brijbhan), Nanad (appellant Kusum) and Nanad’s daughter (Premsheela) of deceased used to demand motorcycle but she did not implicate Saas and Sasur of deceased as accused in F.I.R. Finally she fairly admitted that, on 8.6.2013 at 7:30 p.m. she was at her home in Jaunpur; appellants Kusum Devi, Brijbhan and Premsheela had never put any demand of dowry to her; and she had lodged report at police station on the instigation of some people.

15. Hari Kishan (PW-2), husband of the deceased, has stated that he was married to deceased Pratiksha on 12.12.2007. He further stated that he did labour work on brick kiln whereas deceased was a graduate. He further stated that on 8.6.2013 he was doing labour work at brick kiln of one Uma Singh, at that time his neighbour one Vikki s/o Gopal Harijan informed him that his brother-in-law (appellant) Brijbhan and other family members were quarreling with deceased. On that information he rushed to his house and saw that his wife (deceased) was burning; he put off the fire and carried her to Community Health Centre, Kerakat. He further stated that appellants Brijbhan, Kusum Devi and Premsheela and Subhash (since acquitted) wanted to kill his wife by setting ablaze as they used to torture her due to demand of dowry i.e. sikadi (golden chain), ring and motorcycle. He further stated that on the date of occurrence i.e. 8.6.2013 at about 7-7:30 p.m., they (appellants and one Subhash) set ablaze his wife (deceased) who succumbed to the burn injuries during treatment. Information of occurrence was given by his mother-in-law Asha Devi (PW-1) at P.S. Chandvak; upon that information Police and Naib Tehsildar (Executive Magistrate) had conducted the inquest proceeding and prepared inquest report (Ex.Ka 2) whereupon he had also put his signature. He further stated that police had recovered kerosene oil plastic jerrycan and match box from place of occurrence and had prepared seizure memo (Ex.Ka 3) whereupon he had also put his signature.

16. In cross-examination he admitted that appellants Brijbhan, Kusum and Premsheela used to reside at their house at Madho Tanda and they neither demanded any motorcycle or golden chain as dowry from his wife (deceased) nor did they torture her in that regard. He further stated that at the time of occurrence he was at brick kiln and one Vikki Harijan, resident of his village informed him and after getting information, he came to his house from brick kiln and found that his wife had been burnt; and she was unable to speak. He further stated that due to severe burn injury, his wife could not speak, she pointed out to kerosene oil jerrycan but she neither pointed out to anyone nor did she disclose any person as accused. He further stated that he was in hospital and his mother-in-law (PW-1) got F.I.R. written herself. He also admitted that on 8.6.2013 at about 7:30 p.m., appellants Brijbhan, Kusum and Premsheela had not set on fire Pratiksha, by pouring kerosene oil but they were at their house. He further admitted that when his wife was burnt, he was not present in his house hence he could not disclose as to how she got burnt; he reached his house on the information given to him by one Gopal’s son, resident of his village. He further stated that when he reached hospital, treatment of his wife (deceased) was continuing.

17. Dr. Ramesh Kumar Singh (PW-3) has stated that, on 17.6.2013, he was on post mortem duty and conducted the post mortem of dead body of Smt. Pratiksha Gaur, aged about 24 years, wife of Hari Kishan, at 4:30 p.m. to 5:00 p.m. He further stated that fallowing ante mortem injuries were found on the body of the deceased:-

“Infected flamed burn injuries present over whole of face, fore head, whole upper limb involving neck, whole abdomen and back and both upper part of ante thigh except occipital region of head and lower part of both leg and sole shingled hair present about 70% burn present all over body.”

According to him death of the deceased was caused due to septicemic shock as a result of ante mortem injury infected flamed burn wounds. Stating that at the time of postmortem he had prepared post mortem examination report (Ex.ka 4) in his own hand writing, he further stated that deceased was admitted in hospital on 8.6.2013 at 10:00 p.m. for medical treatment and died on 16.6.2013 at 4:30 p.m. as mentioned in post mortem report.

18. Anoop Gaur (PW-4), brother of the deceased, stating that his sister Pratiksha was married to Hari Kishan (PW-2) in 2007, in mass wedding ceremony, organized by Zebra Group, her nanad appellant Kusum and her nandoi used to beat her due to dowry but he did not know their demands, he stated that he was informed by his mother that Pratiksha had been burnt by her in-laws with kerosene oil. Thereafter he reached the hospital and saw that she had got 80% burn injuries. He further stated that Pratiksha had died in hospital. Darogaji (I.O.) had seized kerosene oil jerrycan, match box, stove and a tin box from place of occurrence and had prepared seizure memo (Ex.Ka 3) which was also signed by him. In cross-examination he stated that at the time of occurrence he was at Siddiquepur and his mother was at his house who informed him in the night of 8.6.2013, upon such information, he rushed to the hospital where his sister was admitted and when he reached at 7-7:30 p.m. he found that deceased was conscious. He further admitted that when he asked her about occurrence she said to look after her child. He further admitted that he was present in hospital from 8.6.2013 till death of his sister.

19. Const. Vinod Saroj (PW-8) has stated that he was posted on 8.6.2013 at P.S. Chandvak, District Jaunpur; he had prepared chik F.I.R. (Ex. Ka 8) pertaining to Case Crime No. 371 of 2013, under Section 498A, 307 I.P.C. and ¾ D.P. Act, on the written information dated 9.6.2013 of Asha Devi (informant), against appellants Kusum Devi, Brijbhan Gaur and Prem Sheela and Subhash (since acquitted) and also entered the said information in G.D. Report (Ex.Ka 9). He further stated that S.I. Mata Prasad Singh was also posted with him and he was acquainted with his writing and signature. According to him, the investigation was started by S.I. Mata Prasad Singh who prepared the site plan (Ex.Ka 10) in his own handwriting and during investigation, offence under Section 304B I.P.C. was added by S.I. Mata Prasad Singh on 17.6.2013 vide G.D. Report No. 40 at 19:30 p.m.

20. Ramesh Chandra Yadav (PW-6) (Executive Magistrate) has stated that on 16.6.2013 he was posted as Tehsildar Sadar, Jaunpur. According to him, on that day at about 6:00 p.m., information was received by him regarding death of deceased Pratiksha. He further stated that inquest was conducted in his supervision by S.I. Vijay Bahadur Singh, in the presence of the family members of deceased. He further deposed that deceased was aged about 24 years and she had died due to burn injuries, in the opinion of Panchan. He stated that after inquest proceeding, inquest report (Ex.ka2) and other relevant documents i.e. photonash, sample seal, letter to R.I., letter to C.M.O. (Ex.Ka 6 to Ka 10), necessary for postmortem examination were prepared; dead body was sealed and was sent for post mortem examination.

21. Ram Kailash Saroj (PW-7) has stated that he was posted as Naib Tehsildar, Jaunpur on 9.6.2013 and in compliance of direction of Sub-Divisional Magistrate, Sadar, he reached the District Hospital, Jaunpur. According to him, deceased Pratiksha was admitted in burn ward where emergency medical officer was present. He further stated that after getting certificate from the doctor that deceased was mentally and physically fit for giving statement, he recorded the statement/dying declaration of deceased (Ex.Ka 11) (noted in previous paragraph No. 3 of this judgement), in his own handwriting.

22. Mayaram Verma (PW-5), (II I.O.), has stated that on 20.6.2013 he was posted as Dy S.P., Jaunpur, and undertook the investigation of Case Crime No. 371 of 2013 under Section 498A, 304B, I.P.C. and ¾ D.P. Act, P.S. Chandvak, District Jaunpur, which was being investigated by S.I. Mata Prasad Singh. According to him during the investigation he recorded the statements of witnesses Asha Devi (PW-1), Hari Kishan (PW-2), Anoop Gaur (PW-4) and other witnesses including the witnesses of panchnama; he inspected the dying declaration of deceased with permission of Court, on 3.7.2013. He further stated that during the investigation he also recorded the statements of Ramesh Chand (PW-6), Dr. Ramesh Kumar Singh (PW-3), Dr. Alha Prasad and S.I. Mata Prasad. He further stated that after investigation he filed charge sheet (report u/s 173(2) of the Code) against the appellants Kusum Devi, Brijbhan Gaur Premsheela @ Guddi and Subhah Gaur (since acquitted).

23. Thus the prosecution story is based on the evidence of Asha Devi (PW-1), Hari Kishan (PW-2), Anoop Gaur (PW-4) who are the witnesses of fact and evidence of Sri Ram Kailash Saroj (PW-7) who recorded the dying declaration of the deceased. The trial Court, relying the statements of above witnesses as well as dying declaration (Ex.ka 11), has convicted the appellants for the offence of dowry death, demand of dowry and for cruelty or harassment to the deceased.

24. The offence in question in this case is related to demand of dowry, dowry death, cruelty and harassment to deceased for demand of dowry by appellants. Before expressing any opinion on the evidences available on record, led by the prosecution, in the light of argument advanced by the learned counsels for the parties, it is necessary to refer the relevant provision of law relating to the offence in question i.e. 304-B and 498-A I.P.C. and 113-B of Indian Evidence Act which are as under:-

Section 304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

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

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

Section 498-A Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.–For the purpose of this section, “cruelty” means

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Section 113-B of Indian Evidence Act-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.

25. The above provisions clearly show that if death of any women is caused within 7 years of her marriage by burn or bodily injury or otherwise than under normal circumstances and it is shown that if soon before her death such women was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry and if the prosecution succeeds to prove the above ingredients, such death shall be called as dowry death. In addition to above, Section 113-B of Indian Evidence Act, further provides that in such cases, if it is shown that a women was subjected soon before her death to cruelty or harassment by the accused in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.

26. Cruelty or harassment, soon before death of deceased for demand of dowry as required in Section 304-B I.P.C. and 113-B Evidence Act for dowry death, does not mean just soon before death, but there must be proximity between death of deceased and cruelty or harassment related to demand of dowry. It is settled principle of law that insufficient evidence of demand of dowry or harassment and cruelty or a long time gap between demand of dowry and harassment or cruelty before death of deceased will be fatal to the prosecution case to prove the dowry death.

27. In FIR (Ex.Ka 1) no specific time has been mentioned by the informant as to when cruelty or torture was caused to deceased by the appellants before her death. According to Asha Devi (PW-1) the deceased, after her marriage, had been to her matrimonial house 6-7 times and whenever she returned to her maternal house, she used to disclose that appellants and one Subhash Gaur (Jeth) used to demand the motorcycle in dowry. This witness in her cross examination on 31.1.2017 has specifically admitted that appellants had never demanded any dowry from her and the application filed against them by her was on the enticement of some people. She has also stated that appellants were living separately from the deceased Pratiksha, in their house and there was no tension (dispute) between them.

28. Hari Kishan (PW-2), in cross examination, has also admitted that appellants had neither demanded motorcycle, golden ring and golden chain nor had committed any cruelty to the deceased.

29. Anoop (PW-4) has also not specifically stated anything regarding demand of dowry or cruelty committed by the appellants to deceased.

30. In dying declaration (Ex.Ka-11) deceased Pratiksha has stated that about one year prior to the occurrence the appellants had tortured her due to demand of dowry and they also had beaten her. She has also stated that she wanted to study but appellants were creating hinderance in her study and under different excuses got her separated from her family. From perusal of dying declaration, it further transpires that on the day of occurrence, the deceased and the appellants had quarreled; one Gappu Singh with two constables had come to the house of deceased; they hurled abuses and instigated the appellants to beat her as the deceased was quarrelsome and as they had left, the appellants had beaten the deceased brutally. She had not stated that at any time soon before the occurrence any demand of dowry was made to her or she was harassed or tortured by appellants in this regard whereas she has narrated so many reasons for dispute between her and appellants.

31. In addition to above, appellants are neither husband nor family members of deceased. They are sister-in-law (nanad), brother-in-law (nandoi) and niece of deceased. They do not reside with deceased. As per prosecution case neither any dowry was demanded nor was given at the time of marriage. Generally it is seen that if husband and his family members are not asking for dowry, their relatives who are not family members of in-laws of deceased, do not demand dowry and if prosecution alleges that they are demanding dowry, it has to be proved by prosecution by reliable evidence. But prosecution, in this case, has failed to prove such fact.

32. Thus from the perusal of aforesaid statement of witnesses as well as dying declaration it transpires that before the death of deceased there was no torture and harassment to the deceased due to demand of dowry by the appellants.

33. Now a question arises whether statements of Asha Devi (PW-1), Hari Kishan (PW-2) and Anoop Gaur (PW-4) are reliable or not. Asha Devi is not resident of the place of occurrence. She is mother of the deceased. She resides at Raj Colony, Civil Lines Road near Yadav Hotel, P.S. Line Bazar, District Jaunpur whereas occurrence had taken place in village- Kanaura which, as per Chik F.I.R. (Ex.ka 8), is 9 km. away from P.S. Chandvak, District Jaunpur. In examination-in-chief this witness has clearly stated that on 8.6.2013 i.e. date of occurrence, on the information of deceased she had gone to her matrimonial house and when she reached there, she saw that appellants along with co-accused Subhash (since acquitted) carried the deceased into her house and after sometime the deceased came out in burning condition. According to her, she and her son-in-law, Hari Kishan (PW-2) with the help of ambulance brought the deceased to District Hospital, Jaunpur. Thus according to statement made by this witness in examination-in-chief she was present at the time and place of occurrence. As noted above in cross-examination she has specifically admitted that her son-in-law Hari Kishan (PW-2) had given the information of the occurrence on phone and after getting the information, she rushed from Jaunpur to Chandvak where she got information that her daughter was admitted in District Hospital, Jaunpur by the villagers. She further stated that then she rushed to the District Hospital, Jaunpur and saw that her daughter was getting treatment in presence of Santosh @ Hari Kishan (PW-2) and his family members. She further stated that she reached hospital on 8.6.2013 at about 9:00 p.m. She has also stated that father-in-law, mother-in-law of her daughter along with appellants also used to demand motorcycle in dowry but she had not made them as accused and lastly she has specifically admitted that appellants had never demanded any dowry from her and she had lodged the F.I.R. on the instigation of someone.

34. Hari Kishan (PW-2) although in examination-in-chief supported the prosecution story but in cross examination he took U-turn and stated that appellants had never demanded any motorcycle, golden chain or ring as dowry and had also not harassed his wife. He further stated that upon information he reached his house and saw that his wife was burning but was alive however she was not able to speak anything. According to him when he asked the deceased regarding the incident, due to inability to speak she pointed out towards kerosene oil container but neither pointed to any accused nor told anything in this regard. Lastly, stating that he was not in his house at the time of occurrence, he admitted that when he reached hospital his wife was being treated.

35. Anoop Gaur (PW-4) is not an eye witness. He has stated in cross examination that he reached hospital at 7-7:30 p.m. and asked the deceased regarding the occurrence whereupon she only said to look after her son. He has also stated that at the time of occurrence his mother Asha Devi was in his house.

36. Thus the aforesaid statement/admission of these witnesses in cross-examination is self-contradictory to their statements in examination-in-chief and is fatal to prosecution story, which shows that they are concealing the true fact of occurrence.

37. The prosecution case is also based on the dying declaration made by the deceased which was recorded by Ram Kailash (PW-7) (as noted in para 3). It is settled principle of law that an accused may be convicted only on the basis of dying declaration if it is true and is reliable because the admissibility of dying declaration is based on the Latin Maxim “Nemo Moriturus Praesumitur mentire” which means that a person will not meet his maker with a lie in his mouth. It is also settled principle that dying declaration cannot be treated as gospel truth; it must inspire the confidence of the Court and before relying on such dying declaration the Court has to satisfy itself regarding truthfulness and veracity of the statement of the person who had recorded and proved such dying declaration because the person who had made the dying declaration never comes before the Court for examination and the defence has no opportunity to cross examine him/her. In true sense the evidence of dying declaration is nothing but heresay evidence which is inadmissible in evidence. Thus it is duty of the Court to ensure the fact that whether such dying declaration was made by the deceased or not, and if it is made by him/her, whether the deceased was in free and sound state of mind and was not tutored, influenced or pressurized by any person. If it is proved that the maker of the statement was tutored, influenced, pressurized or was not in a position to make such dying declaration or any reasonable suspicion appears in the manner of recording thereof, such dying declaration cannot be made as sole basis for the conviction of accused.

38. Hon’ble Supreme Court in Atbir Vs. Government (N.C.T. Of Delhi) (2010) 9 SCC 1 while discussing the factors governing the reliability of the dying declaration on the basis of law laid down by the Hon’ble Supreme Court summarizes the principles in this regard as follows:-

“The following principles can be culled out from earlier decisions of the Supreme Court:-

(I) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”

(Emphasis supplied)

39. In State of Rajasthan Vs. Wakteng, AIR 2007 SC 2020, Hon’ble Supreme Court has held as under:-

“While great solemnity and sanctity is attached to the words of dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the Court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the Court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancor. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.”

(Emphasis suppllied)

40. In Lakhan Vs. State of Madhya Pradesh, JT 2010 (8) SC 363, the Hon’ble Supreme Court has held as under:-

“The doctrine of dying declaration is enshrined in the legal maxim “Nemo moriturus praesumitur mentire”, which means “a man will not meet his maker with a lie in his mouth”. The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, “Evidence Act”) as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.”

(Emphasis suppllied)

41. In Subhash Vs. State of Haryana, AIR 2011 SC 349, where the prosecution has failed to prove as to how the Magistrate was approached by the police or the hospital authorities for recording the dying declaration, the Hon’ble Supreme Court holding that such dying declaration was not reliable, has held as under:-

“3……………..The dying declaration Ex.PCC was recorded by Ravi Malik PW on the 28th October 1985 after an application Ex.PBB had been moved before him by Rajinder Gaur, PW. Ravi Malik, when cross-examined in Court, stated that on the 28th October 1985 he had been present at his residence in Panchsheel Enclave, New Delhi when the application Ex.PBB had been presented to him on which he had gone to the Safdarjung Hospital and recorded the dying declaration after the doctor had certified Anuradha’s fitness to make a statement. He also stated that a copy of the statement had been handed over to the police on the 30th of October 1985. When cross-examined, however, he admitted that Ex.PBB had not been produced by him before the investigating agency and he was tendering this document for the first time during his evidence in Court and that there was no noting on Ex.PCC that he had gone to the hospital on the application Ex.PBB or that a copy of the dying declaration had been handed over the police on the 30th October 1985. He also admitted that he had not obtained any opinion in writing from the doctor about Anuradha’s fitness to make a statement. He further admitted that the area of Safdarjung Hospital did not fall within his jurisdiction but clarified that it was the practice that a dying declaration could be recorded by any Magistrate when the Magistrate of the area concerned was not available but clarified that he had made no efforts to find out as to whether the Magistrate of the area in which Safdarjung Hospital lay was available or not. He also admitted that he had not been approached by the police or the medical authorities for recording the dying declaration. If any doubt is left with regard to the sanctity of this dying declaration, it stands dispelled by the testimony of Dr. Devansh Sharma (who had made the endorsement Ex.PZ. that Anuradha was fit to make a statement) when he deposed that the endorsement had been taken from him after the statement of Anuradha had been recorded. This statement has to be read with the admission made by PW Ravi Malik that he had not taken any endorsement before actually recording the statement. We are, therefore, of the opinion that the so-called “pivot” that both the courts below have found in the dying declaration Ex.PCC is, in fact, non-existent. The very conduct of this witness and the manner in which he had recorded the dying declaration, as already indicated above, raises a deep suspicion about its veracity.” (Emphasis supplied)

42. Hon’ble Supreme Court in Murugesan Vs. State, (2012) 10 SCC 383, where the deceased before completing statement (dying declaration) had slipped into coma and the number of accused, stated by deceased in her dying declaration, was contrary to the earlier report as well as charge sheet filed against 23 accused persons, holding that such dying declaration is not sufficient to be relied upon against the accused, held as under:-

“38………..The efficacy of the dying declaration (Ex. P-4) when the maker thereof had slipped into a coma even before completing the statement would have a serious effect on the capacity of D-1 to make such a statement. The certification made by PW-21 with regard to the condition of the deceased is definitely not the last word. Though ordinarily and in the normal course such an opinion should be accepted and acted upon by the court, in cases, where the circumstances so demand, such opinions must be carefully balanced with all other surrounding facts and circumstances. All the above, in our view, demonstrates the fragile nature of the conclusions reached by the High Court in the present case.”

(Emphasis supplied)

43. Hon’ble Supreme Court in Bakhshish Singh Vs. State of Punjab, AIR 1957 SC 904 criticising the lengthy dying declaration which was also in form of F.I.R. has held as under:-

“Exhibit P-H, the dying declaration, is a long document and is a narrative of a large number of incidents which happened before the actual assault. Such long statements which are more in the nature of First Information Reports than recital of the cause of death or circumstances resulting in it are likely to give the impression of their being not genuine or not having been made unaided and without prompting. The dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by s. 32 (1) of the Evidence Act and unless absolutely necessary to make a statement coherent or complete should not be included in the statement.”

(Emphasis supplied)

44. Now the question arises whether the dying declaration made by the deceased Pratiksha is truthful, voluntary and free from any doubt/suspicion. Admittedly the evidence of Asha Devi (PW-1), Hari Kishan (PW-2), Anoop Kumar Gaur (PW-4) have been found not reliable. It has also been found that these witnesses were not present at the time and place of occurrence i.e. on 8.6.2013 at about 7-7:30 p.m. at the house of deceased because Asha Devi (PW-1) has admitted in her cross-examination that she reached the place of occurrence on the information of Hari Kishan (PW-2) and Hari Kishan (PW-2) has stated that when he reached the place of occurrence he saw that his wife had been burnt. He has not stated that he saw the appellants at the place of occurrence.

45. Record shows that F.I.R. was lodged u/s 498A, 307 IPC and ¾ D.P. Act on 9.6.2013 at about 21:50 p.m. and the investigation was entrusted to one S.I. Mata Prasad (Ist I.O.) and during investigation the deceased died in the hospital and the case was converted u/s 498A, 304B I.P.C. and ¾ D.P. Act and was entrusted to Mayaram Verma (PW-5, II I.O.) on 20.6.2013 for further investigation. Thus S.I. Mata Prasad Singh (Ist I.O.) had investigated the case from 9.6.2013 to 20.6.2013. According to Asha Devi (PW-1) Darogaji (police) had recorded statement of deceased but prosecution has not produced S.I. Mata Prasad to prove that whether deceased had given any statement against appellants or not or whether he (Ist I.O.) had sent any requisition or information to any Magistrate for recording dying declaration of deceased or not.

46. Dying declaration (Ex.ka 11) shows that before recording the statement of deceased on 9.6.2013 at about 12:10 a.m. the emergency Medical Officer Dr. Prabhat, on duty, had certified the mental fitness of the deceased. Dr. Prabhat has also not been examined by the prosecution to prove whether deceased was in fit state of mind or not at the time of recording of dying declaration. Neither Mayaram Verma (PW-5), (II I.O.), has stated whether any information or requisition was sent, either to any Magistrate or to Ram Kailash Saroj (PW-7) for recording statement of deceased/dying declaration nor any official of hospital was produced by the prosecution to prove any such information or requisition. Similarly Asha Devi (PW-1), Hari Kishan (PW-2) and Anoop Kumar Gaur (PW-4), who were present at hospital during the medical treatment of deceased have also not deposed whether dying declaration or any statement of deceased was recorded by Ram Kailash (PW-7) or not. According to these witnesses (PW-1, PW-2 and PW-4) deceased was badly burnt and she was unable to speak.

47. It is also notable point in dying declaration that every effort has been made to rope the whole family of appellant Brijbhan including his wife and his daughter and some innocent persons Jitendra @ Mani and Golu. Since the marriage of deceased with Hari Kishan (PW-2) was due to love and affairs between them and without dowry, Hari Kishan (PW-2) alongwith deceased was residing separately from his brother Subhash (since acquitted) and appellant Brijbhan was residing in his matrimonial house with his family and was being supported by his parents-in-law, this may have created doubt to deceased and Hari Kishan (PW-2) that appellant will grab the property of his father and due to this confusion and apprehension they would have been falsely implicated.

48. Ram Kailash (PW-7) has also not stated that any requisition, to record the dying declaration/statement of deceased (Ex.Ka11) was given to him either from any doctor, hospital authorities, any police personnel or investigating officer. According to him he had recorded the dying declaration (Ex.ka 11) on the direction of Up Zila Adhikari, Sadar (Sub-Divisional Magistrate) but he did not produce any written requisition or direction of such Up Zila Adhikari, Sadar. Prosecution has also not produced that Up Zila Adhikari, Sadar, to prove whether any requisition, request or information was given to him (Up Zila Adhikari, Sadar) either from officials/doctor of hospital or any police personnel including I.O. or he (Up Zila Adhikari, Sadar) had given any direction to Ram Kailash (PW-7) to record the statement of deceased. PW-7 has also not stated that after recording the dying declaration (Ex.ka 11) he had handed over the said dying declaration to concerned hospital or to I.O. or sent it to higher authorities or to concerned Magistrate.

49. According to Mayaram Verma (PW-5) (II I.O.), on 3.7.2013 he had perused the dying declaration (Ex.ka11) with permission of Court i.e. Judicial Magistrate. He has also not stated as to how he got information that dying declaration reached in the office of Judicial Magistrate or who had sent/dispatched it to the concerned Magistrate.

50. It is also pertinent to note that the elaborated and lengthy content of the dying declaration (Ex.Ka 11), containing four pages, also creates suspicion because in response to question No.1 that how she got burnt, deceased had given descriptive statement mentioning her exact date of marriage i.e. 12.12.2007, manner and method of marriage, her ambitions, her enmity with the appellants, details of whole occurrence happened on the day of incident i.e. coming of one Gappu Singh along with two constables, quarreling of whole day, specific role played by appellants Kusum, Guddi and Brijbhan along with Jitendra and Golu and also disclosing age and husband’s name of appellant Kusum, age and father’s name of appellant Guddi and also father’s name of Brijbhan. She had also implicated some innocent people i.e. Jitendra and Golu. In addition to it in response to question No. 2, that how fire was put off, she stated that her husband, after having completed his job in a kiln, came back by cycle and covered her with something and put off the fire. Such descriptive and lengthy statement in the form of complaint shows that such dying declaration was either tutored by someone or was not recorded in verbatim or properly because a person who had received severe burn injury having severe burning pain and suffering from trauma might not be in a position to depose such a descriptive and exhaustive statement mentioning age, parentage and implicating some false persons which are irrelevant and are not supposed to be an answer for cause of her death.

51. This dying declaration also appears false and tutored because in view of statement of deceased (answer of question No. 3 of dying declaration) that she was taken to hospital and got admitted by her mother (PW-1) and her husband (PW-2), whereas Asha Devi (PW-1) has admitted that she, upon information given by Hari Kishan (PW-2), went Chandvak where she got information that her daughter (deceased) was taken away by villagers to hospital and then she rushed to the hospital and found that Hari Kishan (PW-2) was getting the deceased medically treated and Hari Kishan also admitted that upon his information Asha Devi (PW-1) reached hospital. Similarly, Hari Kishan (PW-2) has also admitted that when he reached hospital his wife was being treated.

52. In addition to above, from perusal of dying declaration it is further clear that dying declaration has been prepared in two sheets i.e. four pages and thumb impression of deceased has been put only on the last page. No thumb impression has been put on first three pages. Certificate of mental fitness has been noted with a short signature (initial) of the doctor at the beginning and also at the end of the dying declaration (Ex.ka 11) but both signatures prima facie being different. It is also most remarkable point that all the facts which are against the appellants have been written in such portion (pages) of dying declaration (Ex.ka-11) where thumb impression of deceased is absent. In addition to above, it is also not clear that whether such dying declaration was kept in sealed envelop at the time of its inspection by Mayaram Verma (PW-5) or at the time of recording of statement of Mayaram Verma (PW-5) before Trial Court or at the time of statement of Ram Kailash (PW-7). Ram Kailash (PW-7) has also not deposed that after recording the dying declaration, he had kept it in sealed cover and sent it to concerned Magistrate/Court or handed over to hospital authorities or police.

53. Deceased was well educated and was graduate, as stated by Hari Kishan (PW-2) but her signature was not obtained on Ex.Ka-11. Prosecution has not offered any explanation as to why the deceased, who was well educated, did not prefer to put her signature but put her thumb impression only on the last page of dying declaration.

54. Thus in view of above short coming, serious irregularities, it is clear that the said dying declaration is tutored and doubtful which cannot be treated as reliable.

55. Another point which also creates doubt in prosecution case that occurrence happened on 8.6.2013 at about 7:30 p.m. but F.I.R. was lodged after 24 hours. Prosecution has not given any explanation or reason for such delay whereas Asha Devi (PW-1) and Hari Kishan (PW-2) were awared of the occurrence and according to Asha Devi (PW-1) police had taken away her to police station and got F.I.R. lodged by her. Although delay in lodging the F.I.R. is not fatal in such case where reasonable explanation has been given by prosecution but in facts and circumstances of this case where F.I.R. was lodged after 24 hours on instigation or help of police, delay in lodging F.I.R. is fatal to prosecution case.

56. Thus in the light of above discussion, it is clear that F.I.R. has been lodged after delay of 24 hours with due deliberation and consultation and no explanation has been offered by prosecution in this regard; evidence of Asha Devi (PW-1), Hari Kishan (PW-2) and Anoop Kumar (PW-4) are contradictory and not reliable and dying declaration (Ex.ka 11) of deceased Pratiksha is also doubtful and tutored which cannot be treated as a ground to prove the prosecution case. Trial Court has not properly discussed the prosecution evidence. Prosecution has miserably failed to prove its case beyond reasonable doubt. Appellants are entitled to be acquitted.

57. I am, therefore, unable to uphold the conviction and sentence of the appellants. Impugned judgement and order passed by the Trial Court is accordingly set aside. The appellants Prem Sheela @ Guddi, Kusum Devi and Brijbhan Gaur are acquitted.

58. They are in jail. They are directed to be released forthwith unless wanted in any other case.

59. Cri. Appeal Nos. 558 of 2019 and 564 of 2019 are allowed.

60. Keeping in view the provision of Section 437-A of the Code, appellants- Prem Sheela @ Guddi, Kusum Devi and Brijbhan Gaur are hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellants- Prem Sheela @ Guddi, Kusum Devi and Brijbhan Gaur, on receipt of notice thereof, shall appear before Hon’ble Supreme Court.

61. A copy of this judgment along with lower court record be sent to Trial Court by FAX for immediate compliance.

Order Date :- 03.01.2020

Vandana

 

 

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