Allahabad High Court
Santosh vs State Of U.P. on 26 August, 2016
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.40 Case :- CRIMINAL APPEAL No. - 1317 of 2008 Appellant :- Santosh Respondent :- State Of U.P. Counsel for Appellant :- Ashwini Kumar Awasthi,Anoop Trivedi,Ashok Kumar Srivastava,D.S. Chauhan,Kuldeep Saxena,Manish Tiwary,Pankaj Kr. Shukla,Pankaj Sharma,Pawan Bhardwaj,Pramod Bhardwaj,Rajeev Goswami,S.V.Goswami Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 1268 of 2008 Appellant :- Smt. Kamla Devi Respondent :- State Of U.P. Counsel for Appellant :- Ashwini Kumar Awasthi,D.S. Chauhan,Kuldeep Saxena,Manish Tiwary,Pawan Bhardwaj Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krisnha Narayana,J.)
1. Since both the aforementioned criminal appeals arise out of the same judgement and order they are being heard and decided together by a common judgment.
2. Criminal appeal no. 1317 of 2008 has been preferred by Santosh while criminal appeal no. 1268 of 2008 has been filed by Smt. Kamla Devi against the judgement dated 15.02.2008 and order dated 16.02.2008 passed by Additional District & Sessions Judge, Court No. 3, Mathura in Sessions Trial no.422 of 2005 ( State Vs. Santosh and two others ) arising out of case crime no. 18 of 2005, under Sections 498A, 304B, 316, 201 IPC and Section 3/4 D.P.Act, P.S. Raya, District Mathura by which the appellants have been convicted under Section 3/4 D.P.Act, 498A and 304 B IPC and sentenced to two years imprisonment and fine of Rs. 1000/- each under Section 3/4 D.P.Act, two years rigorous imprisonment and a fine of Rs. 1000/- each under Section 498A IPC and imprisonment for life under Section 304B IPC. All the sentences were directed to run concurrently. It was further provided that in case the appellant committed default of payment of fine they shall be liable to one month additional imprisonment on each count.
3. The facts of the case lie within a very narrow compass. Complainant Devi Prasad lodged a written report Ex. Ka-1 at P.S. Raya, District Mathura on 30.01.2005 at about 22.10 hours stating therein that he had got his daughter Madhuri married to Santosh Kumar son of Yaadram, r/o Karav on 22.04.2000 and he had spent about Rs. Two Lakhs in the marriage of his daughter and given dowry according to his status and financial means, however her husband Santosh, mother-in-law Smt. Kamla Devi and Sister in law Smt. Guddi were not satisfied and they were putting pressure upon his daughter Madhuri to ask her father to pay Rs. 50,000/- as additional dowry. After the marriage, they started torturing his daughter Madhuri for non fulfillment of their additional demand of dowry of Rs. 50,000/- cash. With a view to settle the matter amicably the dispute was repeatedly referred to "panchayats" held in Karav village and in Gupta Colony and the complainant had assured that he will fulfill the demand and had further told his daughter that she had no option but to live with her husband as she was destined to be tortured in her matrimonial home. It was also stated in the written complaint that on 29.01.05 at about 11a.m.-12p.m. Santosh Kumar- husband, Smt. Kamla Devi-mother in law and Smt. Guddi-sister in law of his daughter Madhuri had attempted to commit her murder by pouring kerosene oil on her and setting her ablaze as a result of which she was severely burnt and under the pressure of the villagers they had taken her for treatment to Swarna Hospital, Mathura and when the managent of the hospital informed him about the incident they had run away from there and got his daughter admitted in S.N.Hospital, Agra, where her treatment was going on. Before the death of the victim, the Doctor had got her dying declaration recorded before the City Magistrate Ashok Kumar Agarwal.
4. On the basis of the aforesaid written complaint case crime no. 18 of 2005 under Section 498A, 307 IPC and Section 3/4 D.P.Act was registered on 30.01.2005 at 22.10 hours against Santosh, Smt. Kamla Devi and Smt. Guddi. Complainant's daugther Smt. Madhuri died on 13.02.2005 at about 8.40 a.m. during treatment where upon the case was converted to one under Section 304B IPC. The Investigating Officer of the case prepared the inquest report and send the dead body of the deceased for post mortem and after collecting the relevant documents and evidence submitted charge sheet under Sections 498A, 304B, 316, 201 IPC and Section 3/4 D.P.Act against husband Santosh Kumar, mother in law Smt. Kamla Devi and sister in law Smt. Guddi before the C.J.M. Mathura who after complying with the mandatory requirement of Section 207 Cr.P.C.submitted the case to the Court of Sessions by the committal order dated 28.07.2005 for trial of the accused from where it was made over to the Court of Additional District and Sessions Judge, Court No. 3 Mathura and registered as S.T. No. 422 of 2005. Charge was framed against all the accused on 02.09.2005 under Section 498A, 304BIPC and Section 3/4 D.P.Act. The accused denied the charge and claimed trial. The prosecution in order to prove the charges framed against the accused examined as many as nine witnesses, namely, PW-1 Devi Prasad, PW-2 Dr. A.P.Singh, PW-3 Ratan Lal, PW-4 Dr. Rahul Sah, PW-5 Ashok Kumar Agarwal, PW-6 Dr. R.L.Sharma, PW-7 Dr. A.A.Khan, PW-8 Vipin Kumar Mishra and PW-9 Anendra Singh. The documentary evidece adduced by the prosecution has been referred to and dealt with in detail by the trial judge in the impugned judgement and the same need not be reproduced. Sri Santosh in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and apart from the alleging false implication stated that at the time of the incident he was not present in his house and as soon as he got information of the occurrence, he reached his house and took his wife Madhuri to the hospital for treatment. Appellant Kamla Devi apart from denying the prosecution case further stated that she had been living separately from her son Santosh and she is not aware about the circumstances under which the incident had taken place.
5. After considering the submissions made by learned counsel for the parties before him and scanning the evidence on record learned Additional District & Sessions Judge, Court No.3 Mathura convicted the accused Santosh and Smt. Kamla Devi and awarded them the aforesaid sentences. Smt. Guddi was however acquitted of all the charges.
6. Learned counsel for the appellant has assailed the conviction of the appellants recorded by the trial court and the sentence awarded to them on the ground that the only prosecution witness PW-1 Devi Prasad, the complainant of this case and the father of the deceased Madhuri having failed to support the prosecution case during the trial and declared hostile, the appellant's conviction solely on the basis of the dying declaration of the deceased which neither inspires any confidence nor stands corroborated from any other evidence on record cannot be sustained. Even otherwise the victim Madhuri who was admitted to the hospital with hundred percent burn injuries could not have been in a fit mental condition to give her dying declaration. He further submitted that even if the dying declaration of the deceased is accepted and the facts stated therein are believed to be gospel truth there being no whisper of any allegation in her dying declaration about any demand of dowry from her or her parents or her being tortured or treated with cruelty for non fulfillment of any demand of dowry and there being no other reliable evidence on record, even remotely indicating that there was any demand of dowry either from the deceased or her father or that she was tortured or treated with cruelty on account of non fulfillment of demand of dowry soon before her death, the appellant's conviction under Section 304B, 498A and 3/4 D.P.Act cannot be sustained and is liable to be scored out. He next submitted that it is evident from the bare reading of the dying declaration of the deceased that the incident was neither premeditated nor preplanned. Appellant was provoked by his mother Smt. Kamla Devi on the fateful day when he had returned to his house after purchasing "ghee" for preparing "ladoos", his mother taunted him by saying that he had given "ladoos" to eat to his wife alone and not to her on which the appellant Santosh picked up a quarrel with his mother Smt. Kamla Devi and greatly enraged shouted that he was going to finish her and sprinkled keresene oil on his wife while his mother Smt. Kamla Devi caught hold of her and set her ablaze and thereafter he took her to his field where he tried to burn her with cow dung cakes, thereafter he and his sister Smt. Guddi took her to the hospital in Agra, although the Investigating Officer had failed to locate either the field of appellant Santosh, where the deceased had been allegedly taken by her husband after being set on fire inside the house for burning her further with cow dung cakes nor he could find any burnt or half burnt cow dung cakes. It appears that the mother in law of the deceased Madhuri used to taunt her son whenever he did anything for his wife and alleged her neglect by him and fed up with her persistent nagging and bickerings which had shattered the peace of his house and totally ruined his marital life, appellant Santosh lost his equilibrium on the date of the incident and committed the offence in a fit of rage with the object of putting to an end his mother's constant bickerings and hence under the facts and circumstances of the case, the offence if any committed by the appellants does not travel beyond Section 304(1) IPC.
7. Per contra Sri Sagir Ahmad learned AGA appearing for the State of U.P. submitted that the dying declaration in this case has been recorded in accordance with law and the very fact that the deceased remained alive for 15 days after the incident and died after recording of the dying declaration, is in itself material evidence showng that her condition, notwithstanding her having received hundred percent burns was not overtly critical or precarius when her dying declaration was recorded.
8. He further submitted that doctrine of dying declaration is enshrined in the legal maxim "Nemo moriturus proesumitur mentiri" which means a man will not meet his maker with lie in his mouth and hence the trial judge did not commit any error or infirmity in convicting the appellants on the basis of the dying declaration of the deceased. The impugned judgement is based upon relevant considerations and the finding guilt recorded therein is supported by cogent evidence and the same warrants no interference by this Court. The appeals lack merit and are liable to be dismissed.
9. We have heard the learned counsel for the parties and perused the entire lower court record.
10. Before proceeding to examine interalia the issues regarding reliability and veracity of the dying declaration of the deceased and whether the conviction of the appellants recorded under Sections 3/4 D.P.Act, 498A and 304B IPC on the basis of the dying declaration of the deceased alone can be sustained, we consider it appropriate to have a glance at evidence on record and the various pronouncements on the interpretation of Section 32 of Evidence Act which provides for admission of dying declaration in evidence.
11. The only witness of fact PW-1 Devi Prasad, complainant and the father of the deceased Madhuri examined on behalf of the prosecution to prove the charges framed against the accused failed to support the prosecution case. PW-1 Devi Prasad in his examination in chief stated that the marriage between Santosh and his daughter Madhuri was solemnized on 23.04.2000 in which he had spent about Rs. Two Lakhs. Her husband, mother in law and sister in law of his daughter, namely, Santosh, Smt. Kamla Devi and Smt. Guddi were fully satisfied with the dowry given by him to them at the time of marriage and Santosh, Kamla Devi and Guddi had not committed the murder of his daughter Madhuri on 29.01.2005 between 11-12 p.m. by pouring kerosene oil on her. A hotel owner had informed him that his daughter has been burnt to death and after receiving the aforesaid information he had rushed to S.N.Hospital where his daughter was being treated after being admitted there by her husband Santosh. He further stated that in the hospital he had heard that dying declaration of his daughter Madhuri has been recorded and he had lodged the written report Ex.Ka-1 against the husband, mother in law and sister in law of h is daughter at the behest of the villagers. His daughter had died in the hospital after fifteen days of the incident. He admitted his signatures on the inquest report of his deceased daughter Ex. Ka-2.
12. On the request of the prosecution PW-1, was declared hostile and cross examined by the prosecution with the permission of the Court. PW-1 in his cross examination by the prosecution admitted that before his daughter had died a demand of Rs. 50,000/- cash as additional dowry was made, however in the same breath he denied that any demand of additional dowry of Rs. 50,000/- cash was made by the accused.
13. PW-2 Dr. A.P.Singh, Senior Specialist Women Hospital, Agra who had conducted the post mortem of the dead body of the deceased on 12.09.2005 at about 9.00 p.m. and prepared the post mortem report noted following ante mortem injuries on the cadaver of the deceased :-
"1.Body examined after surgical dressing superficial to deep burn with infected lesions all over the body. Hair signed.
2.Cut open present on medial side of Rt upper arm.
3.Cut open present on medial side of Rt ankle".
14 He further testified that the deceased had died due to burn injuries and proved the post mortem report of the deceased Ex. Ka-3. In his cross examination he admitted that although in the post mortem it is stated that the body of the deceased was totally burnt but the percentage of the burn was not mentioned.
15. PW-3 Ratan Lal Saraswat, who was posted as Pharmacist to S.N.Medical College, Agra on 29.01.2005 testified that on the date of the incident at about 5.50 p.m. Smt. Madhuri was admitted in the hospital with severe burn injuries and she was medically examined by Dr. A.A.Khan. He proved the medical examination report of the deceased prepared on 29.01.2005 Ex. Ka-4.
16. PW-4 Dr. Rahul Shah testified that deceased was admitted to the hospital with hundred percent burns on 29.01.2005 and treated there till her death on 12.02.2005 at 9.00 p.m.. He proved the treatment report of the deceased which was prepared by his subordinate doctors Ex. Ka.5 as well as the progress report records relating to her treatment between 29.01.2005 and 11.02.2005 as Ex. Ka-6, Ka-7 and Ka-8. PW-4 also testified that the deceased Madhuri was able to speak during the period when she was under his treatment. Sri Ashok Kumar Agarwal Additional City Magistrate before whom dying declaration of the deceased was recorded, was examined by the prosecution as PW-5. He in his statement made before the Court on oath stated that the dying declaration of Madhuri wife of Santosh was recorded on 30.01.2005 at 9.00 a.m., she had given her statement in full consciousness and without any pressure. Before her statement was recorded certificate regarding her mental fitness to give her statement was obtained by him from the doctor. The condition of the victim during the recording of her statement also had remained stable. Thumb impression of her right feet was obtained on her dying declaration. He proved the dying declaration of the deceased Ex. Ka-9.
17. P.W.-6, Dr. R.L.Sharma, who was posted in the emergency department of S.N.Medical college on 30.01.2005 deposed that he had certified the mental fitness of Smt. Madhuri to give her statement in his handwriting on the dying declaration Ex. Ka-9 itself.
18. PW-7 Dr.A.A.Khan testified that he was posted as Medical Officer, Agra on 20.01.2005 and had examined Smt. Madhuri and prepared her medical report in his own hand writing, photo copy whereof was brought on record and proved by him as Ex. K-4. He further testified that at the time of recording of her dying declaration Smt. Madhuri was in a position to speak and give her dying declaration.
19. PW-8 Vivek Kumar Mishra, who was entrusted with the investigation of this case after it was converted one under Section 304B IPC following the death of Smt. Madhuri, testified in his statement recorded before the trial court narrated the various steps taken by him, the documents and the evidence collected by him during the course of investigation. He proved the charge sheet Ex. Ka -10 and the site plan of the place of incident Ex. Ka-11 prepared by him.
20. PW-9 Constable 918 Anendra Singh proved the chek FIR Ex. Ka.-12 and the G.D.entry prepared by him on 30.01.2005, carbon copy whereof was brought on reocrd as Ex. Ka-13.
21. Having scanned the evidence on record, we now proceed to examine the judicial pronouncement on the issue in hand.
22. The Apex Court in paragraph 34 of its judgment reported in AIR SC (weekly) 2010, Sharda Vs. State of Rajasthan has held as hereunder :-
"34. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a Crl.A.No. 699/08 fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It is not 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."
23. In this regard, we may profitably quote the following para from (1985) 4 SCC 476 titled State (Delhi Administration) Vs Laxman Kumar & Ors :
"40. We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%.As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, Crl.A.No. 699/08 the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha was alive, cannot be over- emphasised an adverse inference drawn by the High Court from the conduct of the sisters was indeed not warranted in the facts of the case."
24. In this connection we may also to refer to the case of Munnavar and others Vs. State of U.P. and others 2010 (70) ACC 853 (SC) wherein the Apex Court has held as under -
"that a dying declaration can be relied upon if the deceased ramained alive for a long period of time after the incident and died after recording of the dying declaration, that may be evident to show that his condition was not overtly critically or precarious when the dying declaration was recorded"
25. It would be pertinent to note the case of Bajju @ Karan Singh Vs. State of M.P. 2012 (77) ACC 182 SC, Km. Anita Vs. State of U.P. [2013 (80)ACC 46] before the Apex Court which had more or less identical facts. In this case also the dying declaration of the decesed was relied upon and the witnesses of fact did not support the prosecution case and were declared hostile, wherein the Supreme Court has observed as under:-
"Reliance by the learned counsel appearing for the appellant/accused upon the judgment of this Court in the case of Munnu Raja and Another v. The State of Madhya Pradesh (1976) 3 SCC 104 to contend that a dying declaration cannot be corroborated by the testimony of hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. Paragraph 6 of the said judgment reads as under:-
"......It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration."
In para-22 of this report the Hon'ble Court has further held that -
"The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Evidence Act, 1872 (for short 'the Act') is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a 'dying declaration'."
The Apex Court relying upon the dying declaration of the deceased being consistent with the prosecution case which was fully corroborated by medical evidence did not disturb the concurrent findings of guilt of accused-appellant recorded by the two Courts. In view of the aforesaid preposition of the law the dying declaration of the deceased recorded in this case fulfills all the legal requirements and it is in consonance with the prosecution story as also the medical evidence."
26. A Division Bench of this Court in the case of Km. Anita Vs. State of U.P. reported in ACC (2013) Vol (1) has in paragraph 20 of its judgment observed as hereinunder :-
"A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case.[vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur V. State of Punjab (1999) 6 SCC 545; Koli Chunilal Savji &Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.] Thus we find that the dying declaration of the deceased has no legal infirmity at all and it is also consistent with the case of the prosecution. The deceased has spoken about ill-treatment of accused on account of dowry demand as also illicit relations of her husband with his own real sister Anita. She had also assigned specific role to each accused in her dying declaration. She could not give the date of incident, but has stated that it is of instant Saturday. The calendar of year-2003 shows that 17th May, 2003 was Saturday. Thus, the date of the incident is fully corroborated from the dying declaration of the deceased. The defence could not show that the dying declaration is the result of tutoring Smt. Ram Rati in any manner. If the statements of PW 1 (later part of PW 1) to PW 9 is believed then there was no problem with the deceased in her matrimonial home, so why she had levelled allegations against the accused in her dying declaration, could not be explained by the defence."
27. Thus what follows from the reading of the aforesaid authorities is that a dying declaration can form sole basis of convinction, if it is free from any kind of doubt and it has been recorded in the manner as proved under the law, is reliable and gives cogent and plaussible explanation of the occurrence of the events. It may not be necessary to look for corroboration of the dying declaration, as envisaged if a dying declaration is jointly to be recorded by a Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. Now we proceed to test the reliability of the dying declaration of the deceased Ex. Ka-9 in this case on the touch stone of the principles expounded herein above. The dying declaration of the deceased Madhuri recorded in this case before the Additional City Magistrate, is being reproduced herein below:
"मैं माधुरी पत्नी संतोष कुमार उम्र लगभग २४ वर्ष ग्राम करव पी. एस. राया जनपद मथुरा बयां करती हु की कल सुबह लगभग ग्यारह बजे मेरे पति लड्डू बनाने के लिए घी लेकर आये तो मेरी सास कमल ने झगड़ा किया तथा कहा की मैंने तो लड्डू खाये नहीं इसे खिला रहे हो, मेरे पति और मेरे सास में झगड़ा हुआ तो गुस्से में मेरे पति ने कहा आज इसका काम कर देता हु तथा मेरे ऊपर मिटटी का तेल दाल दिया सां ने पकड़ लिया पति ने आग लगा दिया फिर मुझे खेत में ले गये और देर मुझे खेत में कंडो से जलाने की कोशिश की फिर मुझे मेरे पति तथा ननद गुड्डी अस्पताल आगरा ले कर आयी, इसके अतिरिक्त मुझे कुछ नहीं कहना."
28. As we have already noted certificate regarding the fit mental condition of the deceased to give her statement before the recording of her statement and during the recording of her statement was given by Dr. A.A.Khan Medical Officer which is on record as Ex. Ka-9. The dying declaration was recorded by PW-5 Additional City Magistrate, Mathura in S.N.Hospital, Mathura. The facts stated by the deceased in her dying declaration give cogent and plaussible explanation of the occurrence although the Investigating Officer has failed to collect any evidence to corroborate that part of her dying declaration in which she stated that after she was set ablaze by her husband in his house with the help of her mother in law, he had taken him in a field where he had tried to burn her with cow dung cakes. The veracity of the dying declaration of the deceased cannot be doubted merely on the ground urged by the learned counsel for the appellant that there was discrepency in the evidence of the Additional City Magistrate with regard to the form in which it was recorded as we find that PW-4 Dr. Rahul Sah, PW-5 Ashok Kumar Agarwal and PW-7 Dr. A.A.Khan have beyond reasonable doubt proved that the dying declaration of the deceased Smt. Madhuri is reliable, truthful and voluntarility made by her while she was in a fit state of mind. The very fact that the dying declaration in this case was recorded by a competent magistrate puts the same on a higher pedestal than the declaration recorded by an officer of lower rank. The dying declaration of the deceased is further consistent with the prosecution case which stands fully corroborated by medical evidence. Thus in view of the foregoing discussion, we do not find any reason to doubt the deceased's dying declaration. None of the witness or the authorities involved in the recording of the dying declaration have turned hostile. On the contrary they had fully supported the case of prosecution and have beyond reasonable doubt proved that the dying declaration recorded truthfully and was made voluntarily by the deceased.
29. Now coming to the next limb of challenge to the impugned judgment by the learned counsel for the appellant that even if the recitals contained in the dying declaration of the deceased are taken to be true the appellant's conviction under Section 3/4 D.P.Act, 498A and 304 B IPC on the basis thereof cannot be sustained is concerned, the same appears to have merit. In order to appreciate the submission made by learned counsel for the appellant in this regard it will be useful to extract the sections 3/4 D.P.Act, 498A and 304 B IPC herein below :-
"498A:- 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.] 304B:-Dowry death :-
(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 (28 of 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.] 3/4 D.P.Act :-
3. Penalty for giving or taking dowry.--1[(1) ] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]\:" Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation to,--"
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.] 1[4. Penalty for demanding dowry.--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: 2[4. Penalty for demanding dowry.--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.]"
30. Even the most superficial perusal of the dying declaration of the deceased Ex. Ka.-9 indicates that she has not alleged any demand of dowry either by her husband or her mother in law or sister in law, either at the time of marriage or after marriage nor she has alleged her torture by them for non fulfillment of any demand of dowry or she was treated with cruelty either by her husband or her mother in law. There is no whisper of any allegation in her dying declaration that soon before she was set ablaze by her husband Santosh with the aid of her mother in law Kamla Devi she had either been tortured or treated with cruelty in connection with any demand of dowry.
31. The only witness of fact examined on behalf of the prosecution to prove the demand of dowry PW-1 Devi Prasad father of the deceased failed to support the prosecution case during the trial and was declared hostile. Although on being cross examined by the prosecution after being declared hostile PW-1 had stated that Rs. 50,000/- was demanded as additional dowry from his daughter Madhuri before her death but immediately corrected himself by denying that the accused had ever demanded Rs. 50,000/-.
32. Thus after a very carefully scrutiny of the dying declaration of the deceased Ex. Ka-9 and statement of PW-1 recorded during the trial we are constrained to observe that the prosecution has miserably failed to prove by any cogent and reliable evidence that accused appellant had started demanding Rs. 50,000/- as additional dowry after the marriage of the deceased with appellant Santosh and that she was tortured or treated with cruelty soon before her death in connection with any demand of dowry and in view of the above. The prosecution has further miserably failed to prove the ingredients of offences under Section 498A and 3/4 D.P.Act also and hence the convinction of the appellant under Section 3/4 D.P.Act, 498A and 304 B IPC cannot be sustained and is liable to be scored out. There is no iota of any evidence even remotely suggesting that the unfortunate occurrence was either premeditated or pre- planned. The facts stated by the deceased in her dying declaration indicate that the appellant Smt. Kamla Devi, the mother in law of the deceased Madhur was in the habbit of taunting her son Santosh, husband of the deceased when ever he did something for his wife and was consistently brickering and nagging her son and on the fateful day when he had returned back home after purchasing "ghee" from the markert for preparing "ladoos", his mother Smt. Kamla taunted her husband, appellant Santosh Kumar on which he lost is mental equilibrium and in a sudden rage and in the heat of the moment sprinkled kerosene oil on his wife and set her ablaze hoping to put an end to his mother's constant nagging and brickerings. It is true that the facts stated by the deceased in the dying declaration indicate that after setting her ablaze inside the house her husband had taken her out to a field and had tried to burn her with cow dung cakes but at the same time we cannot ignore another very relevant aspect of the matter which stands proved from the evidence on record including the deceased's dying declaration Ex. Ka-9, that it was her husband appellant Santosh who had taken her for treatment first to Swarna Hospital Mathura and when they referredthe deceased for specialized treatment to S.N.Medical College, Agra, it was appellant Santosh who took the deceased from Mathura to Agra and got her admitted to S.N.Medial College, Agra on 29.01.2005 at about 5.50 p.m. and if the appellant had intended to commit the murder of his wife Madhuri, he would not have taken her from one hospital to another for treatment, desperately trying to save his life. Thus in view of the foregoing discussion, we are satisfied that the conviction of the appellant recorded under Sections 3/4 D.P.Act, 498A and 304B IPC passed by the trial court cannot be maintained and is accordingly liable to scored out.
33. Considering the evidence on record and the peculiar facts and circumstances of this case and the different roles assigned to the appellants by the deceased in her dying declaration, we are of the view that the ends of justice will be met if the conviction of the appellants Santosh and Smt. Kamla Devi is converted to one under Section 304 (I) IPC and the sentence awarded to appellant Santosh Kumar is palliated to ten years rigorous imprisonment and fine of Rs. 5000/- and in case of default further six months additional rigorous imprisonment, and the setence awarded by the trial court to appellant Kamla Devi who was about 68 years old on the date on which her statement under Section 313 Cr.P.C. was recorded and is at present aged about 76 years old is reduced to the period already under gone. The bail bonds of appellant Smt. Kamla Devi are cancelled and her sureties discharged. The appellant Santosh who is in jail since 03.02.2005 has already served out the sentence of ten years rigorous imprisonment awarded by us to him and also six months additional imprisonment under the default clause and hence he shall be released forthwith unless he is not wanted in any other case. The impugned judgement and order dated 15.02.2008 and 16.02.2008 stand modified to the extent indicated herein above. Both the appeals stand allowed in part and decided accordingly.
33. There shall however be no order as to costs.
34. Let a copy of this order be transmitted to the trial court for intimation and necessary follow up action.
Order Date : 26 /08 /2016 Abhishek Sri/-