Allahabad High Court
Dilawar Singh vs State Of U.P. on 9 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:135156-DB
A.F.R.
Court No. - 46
1. Case :- CRIMINAL APPEAL No. - 5591 of 2019
Appellant :- Dilawar Singh
Respondent :- State of U.P.
Counsel for Appellant :- Noor Muhammad,Rajeev Malviya,Shashi Dhar Pandey,Yogesh Kumar Srivastava
Counsel for Respondent :- G.A.
And
2. Case :- CRIMINAL APPEAL No. - 5593 of 2019
Appellant :- Jagat Singh And Anr.
Respondent :- State of U.P.
Counsel for Appellant :- Noor Muhammad,Shashi Dhar Pandey,Yogesh Kumar Srivastava
Counsel for Respondent :- G.A.
Hon'ble Arvind Singh Sangwan,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Oral Judgment per Hon'ble Arvind Singh Sangwan,J.)
1. The present appeals have been filed against the judgment of conviction dated 9.7.2019 passed by Additional Sessions Judge, Court No. 8, Firozabad in ST No. 392 of 2012 (Case Crime No. 239 of 2012), Police Station - Utter, Firozabad by which the appellants were convicted of charge under Sections 498-A, 304-B IPC, read with Section ¾ of the Dowry Prohibition Act. Accused-appellant, Dilawar Singh, was sentenced to undergo life imprisonment under Section 304-B IPC whereas accused-Jagat Singh and Virendra Singh were sentenced to undergo 10 years of rigorous imprisonment. Under Section 498A of IPC, all the accused were awarded two years of imprisonment with fine of Rs. 5000/- each. In case of default of payment of fine, they were directed to further undergo imprisonment for one month each. Under Section 4 of the Dowry Prohibition Act, the appellants were directed to undergo two years imprisonment with fine of Rs. 5000/- each and in default of payment of fine, they have to undergo one month further imprisonment. All the sentences were ordered to run concurrently.
2. Heard Sri Yogesh Kumar Srivastava, learned counsel for the appellant, Sri Arun Kumar Singh, learned Amicus Curiae, and learned A.G.A. for the State.
3. This case is listed in the category of 'Supreme Court Expedited Cases' as in S.L.P. (Criminal) Diary No. 15422 of 2024 (Dilawar Singh Vs. State of U.P.), he Supreme Court has passed the following order on 26.04.2024, which read as under:
"Delay condoned.
We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.
We request the High Court to take up Criminal Appeal no. 5591/2019 filed by the present petitioner- Dilawar Singh for hearing as expeditiously as possible.
In case the appeal is not taken up for hearing within six months from today for reasons not attributable to the petitioner or co-convicts, the petitioner - Dilawar Singh may file a fresh application for grant of bail, which will be considered in accordance with law.
We also observe that the counsel appearing for the petitioner - Dilawar Singh should be ready for arguments when Criminal Appeal no. 5591/2019 is taken up by the High Court for hearing.
Pending application(s), if any, shall stand disposed of."
4. Paper book is ready. Trial Court record is requisitioned and the arguments on main appeal is heard.
5. During pendency of the appeal, the accused-appellant Jagat Singh has died and this fact is verified by the Chief Judicial Magistrate, Firozabad. It is also worth noticing that appellant Virendra Singh was released on bail vide order dated 19.2.2020 as he was on bail during trial, however, the appellant Dilawar Singh is in continuous judicial custody since 29.4.2012 and has undergone 12 years and 5 months of actual custody and 13 years and 4 months of total custody including remission. Both the appellants have no criminal history.
6. Brief facts of the case are that on 29.02.2012, informant- Rambir Singh has given complaint vide Ex.Ka.1 on the basis of which chik FIR (Ex.Ka-3) was registered which read as under:
"सेवा में, श्रीमान थानाध्यक्ष महोदय थाना उत्तर फिरोजाबाद निवेदन है कि मै रामवीर सिंह यादव पुत्र श्री सालिग राम निवासी महरारा जिला हाथरस का रहने वाला हूँ। मैने अपनी बेटी शशि देवी की शादी दो साल पहले दिलावर सिंह यादव पुत्र श्री वीरेन्द्र यादव निवासी जैन नगर थाना उत्तर के साथ की थी। मैने शादी में अपनी हैसियतनुसार दान दहेज भी दिया था। मगर लड़का पक्ष उससे सन्तुष्ट नहीं था वे लोग श्वसुर वीरेन्द्र यादव, पति दिलावर व जेठ विजय कुमार व देवर जगत सिंह अक्सर बेटी शशि देवी के साथ मारपीट करते थे और कहते थे कि अपने माता पिता से 50,000/- नगद व एक मोटर साइकिल लेकर आओ नहीं तो हम तुम्हें मार देंगे 27 फरवरी को मेरे पास मेरी बेटी का फोन आया था कि मम्मी पापा आप जाओ नहीं तो ये लोग मुझे जान से मार देंगे। आज 29 फरवरी को बेटी की ससुराल से फोन आया कि तुम्हारी बेटी जल गई है। जल्दी आ जाओ मै जब अस्पताल पहुंचा तो देखा कि बेटी शशि देवी पूरी तरह से जली हुई है और लड़का पक्ष का कोई भी व्यक्ति अस्पताल में मौजूद नहीं था। मुझे पूरा विश्वास है कि मेरी बेटी को जलाने में इन्हीं सब लोगो का हाथ है। अतः आपसे निवेदन है कि मेरी रिपोर्ट लिखकर उचित कार्यवाही की जाये और उचित न्याय दिलाने की कृपा करें। निवेदन रामवीर s/o सालिगराम ग्रा० महरारा जि० हाथरस थाना सहपऊ फोन 9917535777 नोट- मै c/609 रामवीर सिंह प्रमाणित करता हूँ कि तहरीर की नकल चिक हाजा पर शब्द व शब्द अंकित की गई है कार्बन प्रति साफ व पठनीय है। तहरीर हमरिश्ता मूल एफ.आई.आर. है।
ह० C/609 रामवीर सिंह थाना उत्तर फि०बाद दि०29/02/12"
7. The investigation was carried out by the police. During the investigation, one Naib Tehsildar, who later on, appeared as PW-10, recorded the dying declaration of the victim. The operative part of the dying declaration (Ex.Ka.7) read as under:
"Certified that Smt. Shashi, aged about 25 years, w/o Dilawar Singh R/o Jaid Nagarm ACS North, Distt. Firozabad, is fully conscious and can give her Dying Declaration.
ब्यान शशि w/o दिलावर सिंह नि० जैन नगर फिरोजाबाद उम्र- 32 वर्ष पेशा- गृहणी बहल्फ ब्यान किया कि घटना दि० 28/2/12 की साय 9.00 बजे की है। घरवालो मेरे पति दिलावर से कहा कि शशि में आग लगा दो। मेरे पति ने मेरे उपर मिट्टी का तेल डाला। आग किसने लगाई यह मुझे पता नहीं। मेरा पति दारू पीकर आया था। मेरे पति ने कहा मै जा रहा हूँ। फिर मुझमें आग लगाने की धमकी दी थी। मैने कहा लगा दो। फिर मेरे पति ने मुझमें आग लगा दी। ब्यान सुनकर पढ़कर तस्दीक किया।
ह० अप० नि० अ० दाहिना हाथ 29/2/12 ह० अप० N.T. 29/2/12 Date 29/2/12 N.T. time 9.30 AM SNM Firozabad (U.P.)
Certified that Smt. Shashi w/o Dilawar Singh described above remained fully conscious throughout her dying declaration.
ह० अप० 29/2/12 9.30AM EMO SNM Hospital FIROZABAD"
8. The police prepared a Panchayatnama in which it was decided that the post-mortem of the dead body should be conducted. Thereafter, the post-mortem of the victim, who died, on 01.03.2012 was conducted. Thereafter, the final report was submitted against three accused persons namely, appellant- husband Dilawar Singh, brother-in-law- Jagat Singh and father-in-law- Virendra Singh. The case was committed to the Court of Sessions. The Additional Sessions Judge, Firozabad framed the charges against the appellants under Sections 498A, 304B of I.P.C. and in alternative framed the charge under Section 302 read with Section 506 of I.P.C. and Section 3/4 of D.P. Act.
9. The appellants did not plead guilty and claimed the trial.
10. In prosecution evidence, PW-1- informant, Rambir Singh, appeared and stated on the line of the allegations made in the FIR. However, in cross-examination, this witness turned hostile and stated as under:
"नाम साक्षी- रामवीर सिंह पुत्र सालिगराम उम्र करीब 55 साल पेशा नौकरी निवासी ग्राम महरारा थाना सहपऊ जिला हाथरस। शपथ पूर्वक बयान किया कि मैने अपनी लड़की शशि की शादी दिलावर से इस घटना से दो साल पहले की थी। शादी मे मैने अपनी लड़की की शादी अपनी हैसियत के अनुसार की थी। मेरे द्वारा दिये गये दान दहेज से मेरी लड़की के पति दिलावर, ससुर देवर व जेठ सन्तुष्ट नही हुये। और मेरी लड़की के साथ मारपीट करते थे परेशान करते थे और कहते थे कि आप अपने पिता से 50,000/- व एक स्पैण्डर मोटर साईकिल लेकर आ नही तो तुझे जान से मार देंगे। मेरी लड़की ने घटना से दो दिन पहले 27 फरवीर को फोन किया था मम्मी पापा आप आ जाओ नही तो ये लोग मुझे मार देंगे मुझे परेशान कर रहे है। 29 फरवरी को मेरी लड़की के ससुराल से किसी पड़ोसी अड़ोसी ने फोन किया कि तुम्हारी लड़की जल गई है जल्दी आ जाओ मै अपने पूरे परिवार के साथ सरकारी अस्पताल पहुंचा तो वहां पर मेरी लड़की मुझे जली हुई हालात मे मिली। वहां पर मेरी लड़की के पति व ससुरालीजन कोई अस्पताल मे नही मिले। मेरी लड़की ने मुझे बताया कि ससुर व देवर ने मिट्टी का तेल डालकर आग लगाने के लिये कहा उसी बात पर जेठ विजय कुमार ने मिट्टी का तेल डाल दिया पति दिलावर ने आग लगाई। ससुर वीरेन्द्र व देवर जगत सिंह मौजूद खड़े रहे। फिर इस घटना की रिपोर्ट लिखकर थाना उत्तर पर जाकर दी। पत्रावली मे कागज संख्या 3अ/2 को देखकर गवाह ने कहा कि मैने यही रिपोर्ट थाना उत्तर मे जाकर की थी। जो मेरे अपने हस्ताक्षर की शिनाख्त करता हूँ जिस एक्ज क1 डाला गया। मेरी लड़की सैफई अस्पताल मे 29 तारीख को ही खत्म हो गई थी। वहां पर मेरी लड़की के शव का पंचनामा भरा था उस पर मैने अपने हस्ताक्षर किये। पत्रावली मे कागज सं. 7अ/1 लगायत 7अ/2 पर गवाह ने अपने हस्ताक्षर को शिनाख्त की। मैने अपनी लड़की का दाह संस्कार अपने गांव मे ले जाकर किया था।
x x x x x मैं हाईस्कूल फेल हूँ। रिपोर्ट मैने थाने पर बैठकर लिखी थी। अभियुक्त के अधिवक्ता श्री नाहर सिंह यादव धारा 17ब स्थगन प्रार्थना दिया।"
"x x x x x (sic) recorded from PW1 Ranveer Singh recall on oath on dt. 24.7.15 रिपोर्ट प्रदर्श क-1 मैने अपने मन से नहीं लिखी थी। दरोगा जी ने अपनी मर्जी से बोल-2 कर लिखवाई थी। मेरी लड़की के साथ दिलावर सिंह, जगत सिंह, वीरेन्द्र सिंह ने कभी भी अतिरिक्त दहेज की मांग नहीं की और न उसके साथ कभी कोई मारपीट की थी। मेरी लड़की ने मुझे कभी भी अतिरिक्त दहेज की मांग के बारे में नहीं बताया था उसके ससुरालीजनों ने मुझसे कभी अतिरिक्त दहेज की मांग नहीं की थी। मेरी लड़की कम दिमाग की थी और वह खाना बनाते समय स्वयं ही जल गयी थी। यह बात मेरी लड़की ने मुझे भी बताई थी कि वह खाना बनाते समय अपने आप जल गयी थी। मेरी लड़की को उसके ससुरालीजनों ने नहीं जलाया था। मै अपनी लड़की की दाह संस्कार के लिये ले गया था दाह संस्कार में उसके ससुराली जन शामिल हुए थे। मेरी लड़की का अस्पताल में इलाज उसके ससुराल वालों ने कराया था दरोगा जी। विवेचक ने मेरा कभी कोई बयान नही लिया था और न ही पूंछताछ की थी विवेचक को मैने घटनास्थल नहीं दिखाया था।
कोर्ट सर्टि० सु० तस्दीक किया ह० अप० ह० रामवीर सिंह ASJ/(sic) 24/7/15"
11. PW-2- Smt. Saroj Devi, mother of the victim also did not support the prosecution version and her statement read as under:
"कथन- श्रीमती सरोज देवी उम्र 55 साल w/o श्री रामवीर सिंह पेशा गृहणी R/o महरारा Ps सहपऊ जिला हाथरस ने शपथ पर बयान किया कि मैने अपनी लड़की शशि की शादी वर्ष 2009 में दिलावर सिंह के साथ हिन्दू रीति से की थी। शादी के बाद ससुरालीजन अतिरिक्त दहेज में 50,000/- व मोटर साइकिल की मांग को लेकर मेरी लड़की को तंग व परेशान नहीं करते थे। अतिरिक्त दहेज की मांग को लेकर मेरी लड़की की हत्या आग लगाकर नहीं की है। ---- At this stage declare hostile on the oral request of ADGC to cross examination to the witness (sic)-
मैने अपनी बेटी की शादी साधारण तरीके से की थी। मेरी लड़की ने अपनी तंग परेशानी की कोई शिकायत नहीं की थी। विवेचक ने मेरा बयान नहीं लिया था। गवाह को 161 Cr.P.C. का बयान पढ़कर सुनाया तो उसने बताया कि कैसे बयान लिया मै नहीं बता सकता। यह कहना गलत है कि मै मुल्जिमान से मिलकर सही बात नहीं बता रही हूँ।
x x x by defence counsel- opportunity given to cross examination -------NIL-------"
12. PW-3- Satyendra Kumar, the real brother of the victim- deceased also did not support prosecution version. His statement read as under:
"नाम साक्षी सतेन्द्र कुमार s/o श्री रामवीर सिंह उम्र करीब 27 साल पेशा विद्यार्थी नि. माहरारा थाना सहपऊ जिला हाथरस ने शपथ पूर्वक बयान किया किः-
बहिन की शादी आज से करीब 3 साल पहले दिलावर सिंह s/o वीरेन्द्र सिंह के साथ हिन्दू रीति रिवाज के साथ हुई थी। हम लोगो ने अपनी बहिन शशि की शादी हैसियत के मुताबिक की थी।
मेरी बहिन शशी शुरू से ही चिढ़चिढ़े पन की थी। वह जिद्दी किस्म की थी।
मेरी बहिन की मृत्यु अभी खाना बनाते समय स्वयं जल गई थी।
मै अपनी बहिन के यहां ससुराल में गया था। मेरी बहिन ससुराल में खुश थी। उसने मुझे कभी भी दहेज की मांग की बात नहीं बताई थी।
मेरी बहिन ने मुझे कभी भी नहीं बताया कि मेरे पति दहेज में 50 हजार और स्पैलन्डर की मांग करते थे।
जलने की सूचना मिली थी। तब मै सरकारी अस्पताल फि.बाद गया। जहां मोरचरी में देखा था। वहां पर उसके पति दिलावर, जेठ विजय सिंह, ससुर वीरेन्द्र सिंह, देवर जगत सिंह और उनकी मां बहिन सभी अस्पताल में मौजूद थे। और गांव के आसपास के लोग भी मौजूद थे। वहां पर मुझे बताया था कि तुम्हारी बहिन खाना बनाते में जल गई है। क्योंकि मै अपनी बहिन की ससुराल में जाता था। इसलिए मुझे गांव वाले जानते थे।
गवाह ने पत्रावली पर कागज सं. 7अ/1 को देखकर कहा कि यह वही कागज है जिस पर मेरे हस्ताक्षर है। पढ़कर नहीं सुनाया था मेरे हस्ताक्षर करा लिये थे जो हस्ताक्षर बने है। मै उनकी शिनाख्त करता हूँ। जिस पर प्रदर्श क-2 डाला गया।
इस स्तर पर गवाह को ADGC की प्रार्थना पर पक्षद्रोही घोषित किया गया। जिरह की अनुमति दी गई।
x x x x cross by ADGC.
पुलिस ने मेरा कोई बयान नहीं लिया गया गवाह को उसका 161 Cr.P.C. का बयान पढ़कर सुनाया गया तो गवाह ने कहा कि मैने ऐसा कोई बयान पुलिस को नहीं दिया। कैसे लिख लिया वजह नहीं बता सकता हूँ।
यह कहना गलत है कि हमारा मुल्जिमानों से राजीनामा हो गया हो। इसलिए मैं अदालत में सही बात नहीं बता रहा हूँ।
x x x x cross by defence. NIL"
13. PW-4- Smt. Neeraj, wife of PW-3, was also declared hostile and did not support the prosecution version regarding the demand of dowry or any physical torture and stated that her sister-in-law (Nanad) died due to an accidental fire while cooking food. This witness was declared hostile and in cross-examination by public prosecutor when she was confronted with her statement under Section 161 of Cr.P.C., she even denied the same by stating that she has not made such statement to the Investigating Officer.
14. PW-5- Mukesh, the paternal uncle of deceased also did not support the prosecution version. This witness stated that he was the mediator in the marriage and this witness was also declared hostile. In cross-examination by public prosecutor, he stated that the victim never lodged any complaint regarding maltreatment or demand of dowry.
15. PW-6- the other brother of deceased- Shashi also did not support the prosecution version and stated that his sister was short-tempered and while cooking food, she accidentally got burn injury and died. He further stated that the cremation was done in presence of both the families. This witness was also declared hostile and stated that as the deceased could not bear a child, she remained tensed and had committed suicide. This witness also denied having made any statement to the Investigating Officer under Section 161 of Cr.P.C. The statement read as under :
"नाम साक्षीः- जितेन्द्र कुमार एस/ओ श्री राम वीर उम्र करीब 30 साल पेशा मजदूरी निवासी मारदारा थाना सहपऊ जिला हाथरस ने शपथपूर्वक बयान किया किः-
मेरी बहिन (मृतक) शशी की शादी आज से करीब 4 साल पूर्व हिन्दू रीति रिवाज के साथ साधारण तरीके से हुई थी।
मेरी बहिन शशी मुझसे छोटी थी। वह अपनी ससुराल से अपने पति के साथ मेरे घर पर आती जाती थी। हंसी खुशी आती जाती थी। मेरी बहिन शशी के पति दिलावर उसे लाड़ प्यार से रखते थे।
मेरी बहिन ने कभी भी अतिरिक्त दहेज में मेरे सामने 50 हजार रूपये व एक मोटर साइकिल माँग वाली बात नहीं बताई थी। और न ही उसने अपने पति दिलावर व जेठ विजय कुमार व देवर जगत सिंह आदि लोगों के नाम मेरे सामने मेरी बहिन ने किसी प्रकार की मार पीट करना उसके साथ उत्पीड़न करना और अतिरिक्त दहेज में माँग करने वाली बात किसी प्रकार की मेरे सामने न ही मम्मी पापा को बताया और न ही मुझे बताया।
मैं जब भी अपनी बहिन की ससुराल जाता था। कभी अपनी ससुराल में खाना बनाते मिलती थी। कभी कपड़े धोते मिलती थी। उसने कभी भी मुझसे कोई शिकायत अपने पति व ससुराली जनों की नहीं की। वह अपनी ससुराल में हंसी खुशी रहती थी। उसके कोई बच्चा नहीं था। बच्चा न होने की वजह से वह मन ही मन जलती थी। जिससे उसका स्वभाव चिढ़चिड़ा बन गया था। मेरी बहिन अपनी ससुराल में खाना बनाते समय जल गई थी। इसका इलाज सैफई में ही हुआ था। जहाँ पर वह उसी दिन मर गई थी उसका अन्तिम संस्कार हम लोगों ने अपने घर पर किया था। साथ में ससुराली जन भी थे।
इस स्तर पर गवाह को ADGC की प्रार्थना पर पक्षद्रोही घोषित किया गया। जिरह की अनुमति दी गई।
x x x x x Cross by ADGC मेरी बहिन अपनी ससुराल जब भी मेरे घर आती थी। हंसी खुशी आती थी। और अपने घर से जब भी अपनी ससुराली जाती थी। वह हंसी खुशी जाती थी।
उसने कभी भी मुझे पति व ससुरालीजनों की उत्पीड़न करने वाली व अतिरिक्त दहेज में 50 हजार रू० व मोटर साईकिल वाली बात नहीं बताई थी। बच्चा न होने की वजह से वह मन ही मन कुढ़ती रहती थी। बच्चा न होने के कारण उसने आग लगाकर अपनी आत्म हत्या कर ली। यह बात सही है कि बहिन को ससुराली जन लाड़ प्यार से रखते थे।
मेरा दरोगा जी ने कोई ब्यान नहीं लिया। गवाह को उसका 161 सी०आर०पी०सी० का बयान पढ़कर सुनाया गया तो गवाह ने कहा कि मैंने ऐसा कोई ब्यान दरोगा जी को नहीं दिया। दरोगा जी ने ऐसा ब्यान कैसे लिख दिया मैं वजह नहीं बता सकता।"
16. PW-7- Rambeer Singh, H.C.P. stated that he received a complaint from PW-1, on which he registered a chik FIR, Ex.Ka.3. He futher stated that the FIR was registered initially under Sections 498A, 320, 506 of I.P.C. and Section 3/4 of D.P. Act. In cross-examination, this witness denied the suggestion that the FIR was ante-time.
17. PW-8- SSI, Ramesh Bhardwaj, I.O. stated that on 07.03.2012, the statement of informant was recorded in which he stated that his daughter- Shashi died during her treatment in Safai Hospital. He proved the 'Naksha Najari' as Ex.Ka.5 and also stated that he has concluded the post-mortem from the hospital. In cross-examination, he stated that he did not investigate the place of occurrence on 03.03.2012 as he came to know that the victim and her husband- Dilawar Singh, both were admitted in the District Hospital, Firozabad and later on, both of them were referred to PGI Safai. In cross-examination, this witness stated as under:
" इसकी मुझे अस्पताल पर जानकारी हुई थी कि पीडित व उसका पति दिलावर दोनो जिला अस्पताल फिरोजाबाद भर्ती हुऐ थे जिनकी डाक्टरी रिपोर्ट की नकल मेरे द्वारा सीडी में किया गया था। जब तक मैने विवेचना की तब तक कोई चश्मदीद साक्ष्य मुझे प्राप्त नही हुआ था। मृतिका के पिता रामवीर सिंह ने मुझे थाने पर व्यान दिया था कि "मेरी लड़की शशि की सास लौग श्री, ससुर विजय सिंह अस्पताल से रैफर करा कर सैफई अस्पताल ले गये और मै साथ मे था।"
घटनास्थल का निरीक्षण करने गया था तब मृतिका की सास लौग श्री मौजूद थी मकान में कही जलने का निशान नहीं था मैने उस दिन (sic) घटना स्थल का निरीक्षण करने वाले (sic) पड़ौसियों के भी ब्यान अंकित किये थे उसे अपनी समाई साक्ष्य होना बताया था कि हमने सुना है कि दिलावर की पत्नी ने आग लगा ली थी बुझाने में दिलावर भी जल गया है दिलावर की पत्नी की आग से जलने के कारण मृत्यु हो गयी है।"
This witness also stated that he did not record the statement of the victim.
18. PW-9- Dr. K.S. Bhadoria stated that on 01.03.2012, he was posted in District Hospital, Etawah and has conducted the post-mortem of Shashi, wife of Dilawar Singh, who died in R.I.M.S. Safai Hospital. As per the post-mortem, following injuries were found:
"1. बर्न (sic) से तृतीय डिग्री तक मौजूद था। सारे शरीर पर केवल नीचे का ¾ पीछे का हिस्सा छोड़कर दोनो बगलो एवं प्यूबिक (PUBIC एरिया) छोड़कर दाहिने हाथ के पिछड़ी को छोड़कर एवं दाहिने तलवे को छोड़कर मौजूद था। रेड लाईन ऑफ दि मार्क केश मौजूद थी सिर के बाल झुलसे हुये थे।
मस्तिष्क एवं उसके ऊपर की झिल्लियाँ एवं दोनों फेफड़े एवं उसके ऊपर की झिल्लियाँ यकृत, तिल्ली, दोनों गुर्दे कन्जेस्टेड थे। आमाशय में लगभग 100ML पेस्टी फूड था। हृदय के दोनों चेम्बर भरे हुये थे। बच्चेदानी खाली थी।
मृतका की मृत्यु, मृत्यु पूर्व जलने के कारण शॉक से हुई थी।"
In cross-examination, he stated that the burn injuries were on the front portion of the body and on the back side, the burn injuries were less.
19. PW-10- Nanhe Ram, Tehsildar stated that he had gone to the hospital for recording the Dying Declaration of victim- Shashi. He proved the statement as Ex.Ka.7. In cross-examination, he stated that the memo vide which he was directed to record the statement, is not on record. He further stated that he did not record the statement of the doctor on dying declaration and, on the dying declaration, there is seal of S.N.M. Hospital but name of doctor is not mentioned. He pleaded ignorance, how he has recorded the age of the deceased as 25 years. He further stated that the word 'Gharwalon' referred to the in-laws but the word in-laws (Sasuralwalon) is not mentioned in dying declaration. He also stated that in the dying declaration, the deceased did not mention about the demand of dowry or maltreatment. He further stated that on the G.D., his name and designation are not mentioned and he has only put his initials. He further stated that with regard to the contradiction, he has not sought any clarification from the deceased and denied a suggestion that he did not record the dying declaration by personally visiting the hospital.
20. PW-11- Inspector Upendra Nath Rai, I.O. stated that he prepared the Panchayatnama which was signed by him and the Tehsildar. In cross-examination, he stated that he has not seen the victim in the hospital and has recorded the same as per the information given by the Tehsildar. He denied the suggestion that neither he nor the Tehsildar has visited the hospital and prepared the documents while sitting in Tehsil office.
21. PW-12- Asha Ram Yadav, Retired S.P. stated that he has partly conducted the investigation after 15.04.2012 and recorded certain CDs. He stated that he has arrested all the three accused persons vide C.D. No. 12 and thereafter, he added the offence under Section 304B of I.P.C. In cross-examination, this witness stated that he had not seen the dying declaration and has only seen the statement of his previous I.O. He further stated that one of the accused Vijay Singh was not found involved and his name was dropped.
22. PW-13- Dr. Mukesh Kumar who conducted the medico-legal-examination of deceased- Shashi in Govt. Hospital, Firozabad, stated that the deceased when brought to the hospital, was in semi-conscious condition and had suffered burn injury and smell of kerosene oil was emitting from the body. Thereafter, he sent an information to the police station vide Ex.Ka.9. This witness stated that on the same day at about 9:40 PM, he had examined Dilawar Singh s/o Virendra Singh who was also admitted in hospital and in examination, he found that Dilawar had suffered burn injuries on his neck, chest, both hands towards the palm and on the back side of the palm. The hairs on the hand were burnt and he was also sustained injuries due to fire from kerosene oil. He was also admitted in hospital. His MLR was proved as Ex.Ka.10.
In cross-examination, he stated that Shashi was admitted by her brother-in-law Vijay. Vijay has also brought Dilawar to the hospital. Both were brought to the hospital at about same time and he first treated Shashi and then Dilawar. Shashi and Dilawar have sustained 80% and 50% burn injury respectively. Both were emitting smell of kerosene oil.
23. Shri Krishna (PW-14), the Tehsildar, stated that on receiving the information, he went to the Mortuary of P.G.I. Saifai and dictated the Panchayatnama to S.I. Upendra Rai. Five persons namely, Rambir, Satendra, Santveer, Padam Singh and Mahesh Chand were appointed as panchs. Panchayatnama (Ex.Ka-2) was prepared under his signature. He also proved the signatures of other persons from Ex.Ka-11 to Ka-14. In cross examination, this witness stated that he had no knowledge whether at the time when Panchayatnama was prepared, the F.I.R. was registered or not. He further stated that he cannot explain the cuttings and overwriting on the Panchayatnama, however, the cuttings were due to inadvertent mistakes.
24. On conclusion of the prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to them.
Accused-Dilawar Singh denied all the evidence led against him and in reply to question No.15 regarding giving his explanation, he stated that he is innocent and has been falsely implicated in this case.
Similar is the statement of Jagat Singh and Virendra Singh who stated that the Dying Declaration is artificial and no family witnesses has supported or proved the occurrence.
25. Thereafter, the Trial Court held the appellants guilty of offence punishable under Sections 498A, Section 304B of IPC and Section ¾ of Dowry Prohibition Act.
26. The paper book is ready. The Trial Court record is received and re-appreciated with the assistance of learned counsel for the appellant as well as learned Amicus Curiae appointed by the Court and learned A.G.A. for the State.
27. Learned Amicus Curiae has argued that none of the prosecution witnesses of facts have supported the prosecution version. It is submitted that all the witnesses were declared hostile. It is further argued that even PW-1 has disowned his statement made in Ex.Ka-1, forming basis of Chik F.I.R. (Ex.Ka-3) and stated that it was dictated by the Investigating Officer himself.
28. Learned counsel further argued that all the witnesses of facts i.e. PW-1 to PW-7, who are the father, mother, two real brothers, paternal uncle (mediator of marriage), sister-in-law (wife of one of the brothers) have not supported the prosecution version so much so that they all have stated that the victim was never maltreated in her matrimonial home as neither there was any demand of dowry nor she was subjected to any cruelty.
29. It is next argued that PW-1 has stated that his daughter was of feeble mind and while cooking food, she sustained burn injuries and died. This witness stated that when he had gone to meet his daughter, this fact was stated by her. This witness also stated that both families i.e. family of deceased and her in-laws have attended the funeral of his daughter.
30. Counsel has further argued that PW-3, real brother of the deceased, has stated that his sister was very arrogant and developed irritable behaviour. She died as she sustained burn injuries while cooking food. He also denied the allegation of demand of dowry by the accused side.
31. It is next argued that PW-5, the mediator, has also stated that the deceased never complained of demand of dowry from her in-laws.
32. It is argued that PW-6, the other brother of the deceased, has stated that her sister was mentally disturbed as she could not bear a child and, therefore, she has committed suicide. This witness also stated that her in-laws used to treat her in a proper manner. Counsel for the appellant has thus argued that in the absence of any witness of fact supporting the prosecution version, no legal evidence has come on record to convict the appellants.
33. It is next argued that as per the statement of PW-9, the doctor who conducted the postmortem and PW-13, the doctor who initially treated the victim, have stated that the deceased received burn injuries on the front side of her body which suggest that she sustained burn injuries accidentally while cooking food. Thus, it is argued that if someone poured the kerosene oil on her, the same would be spread over the entire body causing injury on all parts of the body.
34. Counsel next argued that the Trial Court has not taken into consideration the fact that even the appellant-husband had tried to douse the accidental fire in which, he himself got burn injuries to the extent of 50% on his body. Counsel has referred to the statement of PW-13, the doctor who has stated that the deceased sustained 80% burn injuries whereas the appellant-husband sustained 50% burn injuries, which are on the front side of his neck, chest and both hands. This witness further stated that accused-Dilawar Singh was also smelling kerosene oil. It is argued that in fact the appellant has tried to douse the accidental fire and in that process, he also sustained burn injuries on front side of his body including both of his hands, neck and chest.
35. Counsel has next argued that PW-13 has further stated that both the victims i.e. the deceased and Dilawar Singh were brought to the hospital at the same time by the elder brother of Dilawar Singh namely Vijay which also prove that the deceased suffered burn injuries in accidental fire while cooking food.
36. Counsel has next argued that the conviction of the appellants is solely based on the Dying Declaration which has not been proved in accordance with law.
37. It is argued that Nanheram (PW-10), the Executive Magistrate, who recorded the Dying Declaration has stated that he has received the information for recording the Dying Declaration through a memo but the memo was never produced on record as admitted by this witness.
38. It is also argued that this witness has admitted that he did not record in the Dying Declaration whether it was recorded in emergency ward or in general ward. This witness further stated that the statement of the Doctor, in whose presence he recorded the Dying Declaration, was not recorded in the Dying Declaration. It is further argued that this witness stated that there is only seal of E.M.O., S.N.M Hospital and there is short signature on the Dying Declaration.
39. Counsel argued that in the Dying Declaration, it is stated that the victim recorded the words "Gharwalon" and not "Sasuralwaon" i.e. her in-laws. It is also argued that in the Dying Declaration, there is no averment recorded that the deceased had stated that there was any demand of dowry or maltreatment on account of demand of dowry as admitted by PW-10. It is argued that in fact the Dying Declaration was not recorded by this witness while visiting to the hospital.
40. It is also argued that neither the Executive Magistrate recorded his satisfaction about mental condition of victim by asking preliminary questions nor the doctor made a specific endorsement that the victim is in a fit condition of mind to make statement.
41. It is also argued that the endorsement of doctor on the top and bottom of Dying Declaration that victim can record her "Dying Declaration" is in fact recorded after death of victim as in ordinary course doctor should have declared that victim can give statement and not Dying Declaration. The word dying declaration on both the endorsements reflect that it was added later on, after the death of victim.
42. Learned counsel submits that the Doctor who gave a certificate that the deceased was fully conscious and can give her statement, never appeared as a witness and PW-10 has admitted that his name is also not mentioned as he has only put his signature over the seal of the hospital. It is also argued that it has not come on record that right thumb impression which was taken by the Executive Officer, was not having any burn injuries as no such endorsement was made by the doctor.
43. Counsel has next argued that even from the Dying Declaration, on the face value, did not make out that appellant has committed the offence as the deceased has stated that she had no knowledge who had lit the fire and when her husband exhorted to lit the fire, the deceased stated that he may do so.
44. Counsel submits that the manner in which the Dying Declaration was recorded showing the mental state of victim does not reflect that she was fully conscious and was making the statement voluntarily.
45. Counsel has next argued that as per the the statement of PW-1, the marriage of deceased with appellant-Dilawar Singh was performed two years prior to the incident however, during intervening period of two years, there was no complaint lodged by the victim regarding any demand of dowry or maltreatment or physical abuse by the accused side.
46. It is further argued that none of the witnesses of Panchayatnama namely Rambir, Satendra, Santveer, Padam Singh and Mahesh Chand were examined as witness to prove the allegations made in the F.I.R.
47. It is thus argued that the prosecution has failed to prove the charge beyond doubt.
48. In reply, learned A.G.A. for the State has argued that the informant while appearing as witness has supported the prosecution, however, during cross examination he has taken the side of accused persons because of some compromise.
49. Learned A.G.A. has further argued that the Dying Declaration has been recorded in accordance with law and has been duly proved by the Executive Magistrate (PW-10) who has recorded the same. It is also argued that before recording the Dying Declaration, the opinion of the doctor was taken that the deceased was in a fit state of mind to record the statement and, therefore, the Dying Declaration has been proved in accordance with law and prayed for dismissal of the appeal.
50. In reply, learned counsel for the appellant has cited the judgments of the Supreme Court. In Dattatraya Vs. State of Maharashtra, 2024 SCC OnLine SC 223, the Supreme Court has held as under :
"21. The act of the appellant is not premeditated, but is a result of sudden fight and quarrel in the heat of passion. Therefore, we convert the findings of Section 302 to that of 304 Part-II, as we are of the opinion that though the appellant had knowledge that such an act can result in the death of the deceased, but there was no intention to kill the deceased. Therefore, this is an offence which would come under Part-II not under Part-I of Section 304 of the IPC.
22. On almost similar facts, (as are present in the case at hand), this Court had converted the findings of Section 302 to that of Section 304 Part II IPC. The case of which reference is being made here is Kalu Ram v. State of Rajasthan (2000) 10 SCC 324. The appellant who had been convicted under Section 302 IPC for causing death of his wife by pouring kerosene on her and then setting her on fire was convicted by the Trial Court under Section 302, which was upheld by the High Court. The facts of the case are as follows:-
23. In the above case, the appellant who in an inebriated state was pressurizing his wife to part with some ornaments so that he could buy some more liquor. On her refusal he poured kerosene on her and set her on fire by lighting a matchstick. But then he also tried to pour water on her to save her. This Court was thus of the opinion that:
"7. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder.
8. We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC."
24. The facts of the present case, as we have already discussed above, by and large reflect the same situation, nature of crime as well as the act of the accused and the consequences of his action. We are inclined to accept the arguments raised by the learned senior counsel for the appellant, Mr. Sudhanshu S. Choudhari that under the present circumstances it would indeed be a case of culpable homicide not amounting to murder as given in Section 304 Part II in as much as, though the accused had knowledge of the consequences of the act he was committing, yet there was no intention to cause death.
25. The appeal is partly allowed. We convert the findings of Section 302 to that of Section 304 Part II of IPC and sentence the accused to 10 years of R.I. To this extent the findings given by the trial court and High Court will stand modified. We have also been informed that the appellant has already undergone incarceration for more than 10 years. Therefore, he shall be released forthwith from the jail, unless he is required in some other offence."
51. Counsel for the appellant has also relied upon the decision in Shambhubhai Kalabhai Raval vs. State of Gujarat, 2023 SCC OnLine SC 1420, wherein the Supreme Court has held as under :
"6. There are other factors on the basis which we can say that the dying declaration is not free from a serious doubt. The said reasons are as under:- (i) The dying declaration itself does not bear the endorsement of the doctor regarding the fitness of the deceased to make a statement; (ii) A panchnama (Exhibit '29') was recorded around 10:10 P.M. on 31.07.1994, which records that the deceased was barely able to tell her name and she stated that she could not speak. The alleged dying declaration was recorded between 09:45 P.M. to 10:00 P.M.; (iii) Even the police personnel, who recorded the panchnama has stated that the deceased was not in a position to speak; and (iv) PW5 - Dr. Rajendra, who examined the deceased stated in the cross-examination that when he asked the deceased about the cause of burn injuries, she disclosed that she poured kerosene on herself. But she gave no reason why she did the act.
7. These factors taken together create a serious doubt about the correctness of the dying declaration. Therefore, the dying declaration will have to be kept out of consideration. In any case, 5 the dying declaration is not of that sterling quality on which the conviction can be based in absence of any other evidence. Therefore, the prosecution has failed to prove the guilt of the appellant beyond a reasonable doubt. The appeal succeeds and the impugned orders are quashed and set aside. The appellant is acquitted."
52. Counsel for the appellant has also relied upon the decision in Umakant and another Vs. State of Chhatishgarh, (2014) 7 SCC 405 wherein the Supreme Court has held as under :
"22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Government of NCT of Delhi- 2010 (9) SCC 1, taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat - 1992 (2) SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamilnadu - 2008 (17) SCC 190 has given certain guidelines while considering a dying declaration:
"(i). Dying declaration can be the sole basis of conviction if it inspires 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 corroborative. 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 infirmities, 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."
9. When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
10. If after careful scrutiny the Court is satisfied that it is 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 basis of conviction, even if there is no corroboration.
23. In the light of the above legal position that governs the consideration of a dying declaration, the factual matrix has to be scrutinised. As already extracted above, in the dying declaration Ex.P-13, the deceased stated before the Magistrate that the appellants demanded dowry and that the appellants set fire to her and she asked her brother-in- law to rescue her, but he had chosen not to do so, and further on hearing her cries, the neighbours came and extinguished the fire and admitted her in the hospital. After she was admitted in the hospital, her parents came and she informed them about the incident. The deceased is said to have stated that when she was pregnant she was beaten up by the accused and because of which the child died in the womb. At that time, she had taken treatment in Revival Hospital]. This statement is found in Ex.P-23, FIR written by K.B. Singh (P.W.23), and not in Ex.P13 dying declaration.
24. When we look at the dying declaration, it is not inspiring confidence in the mind of this Court and throws serious doubt that the same is a product of tutoring by the family members of the deceased for the reason that, the sister of the deceased who was present when the deceased was admitted in the hospital had signed in Ex.P-2 wherein it is stated that it was an accident and nobody has burnt the deceased, but later she turned around and stated that unless she signed on that, they were told that the deceased would not be treated, and the High Court has taken this fact into consideration, whereas in the dying declaration, the deceased has stated that when her parents came to the hospital on 06.08.2003, she informed to the parents for the first time and she had not mentioned that she informed her sister or anybody before that, but according to the sister of the deceased, on 02.08.2003, she was aware of this, which shows that the evidence of the witness is not reliable and clouded with doubt.
53. Counsel for the appellant has relied upon the the decision in Kanti Lal vs. State of Rajasthan, (2009) 12 SCC 498 wherein the the Supreme Court with reference to the admissibility of the Dying Declaration has held as under :
32. It is well settled that one of the important tests of the credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, the court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution.
33. In the present case, as noticed above DW 2 has not taken any certificate from the doctor to prove that the deceased was in a fit state of mind to give statement nor he has recorded any endorsement to that effect on the alleged dying declaration (Ext. D-4). Another factor which impairs the credibility of the alleged dying declaration (Ext. D-4) and belies the statement of DW 2 was that, according to Dr. Vasudev, dying declaration was recorded by the reader of the Tahsildar and not by DW 2.
34. It is also proved on record that DW 2 did not ask preliminary questions from the deceased before the dying declaration allegedly made by her was recorded and this fact also created doubt about the correctness and truthfulness of the dying declaration. It is also the evidence of DW 2 that after recording the alleged statement of the deceased, he did not seal the dying declaration and the unsealed document was handed over to the Station House Officer. DW 2 has not produced on record the original copy of the "tehreer" submitted to him by a constable requesting him to visit the hospital for recording the alleged dying declaration of the deceased, and a carbon copy whereof was produced by him during his cross-examination.
35. A categorical refusal of putting her signature or thumb impression on the alleged dying declaration (Ext. D-4) by PW 6 Bhanvri (the mother of the deceased) would further go to prove that the alleged dying declaration was not at all recorded by DW 2 in the room of the hospital where the deceased was lying before she died.
36. The abovestated facts and circumstances would prove that the alleged dying declaration, on which much reliance has been placed by the defence, cannot be said to be an admissible and reliable document. The fact that the alleged dying declaration (Ext. D-4) did not bear endorsement of DW 2 to the effect that it was read over and explained to the deceased, also created a doubt on its credibility and truthfulness.
37. The trial court as well as the High Court both have concurrently and, in our considered view, have rightly rejected the genuineness and credibility of the alleged dying declaration to prove the defence version that the deceased made the said statement to DW 2 and she died because of accidental death. We agree with the findings and reasoning of the courts below that the alleged dying declaration (Ext. D-4) suffers from a number of basic infirmities and such dying declaration cannot be found admissible and accepted as a genuine document.
38. Ms Aishwarya, learned counsel, has relied upon the judgment of this Court in Gaffar Badshaha Pathan v. State of Maharashtra [(2004) 10 SCC 589 : 2004 SCC (Cri) 2037] to contend that it is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. In such case, the burden on the accused is much lighter.
39. In the present case, according to the learned counsel, A-1 and A-3 have established beyond reasonable doubt that the statement of the deceased was recorded by DW 2 with bona fide intention and without putting any pressure upon the deceased and therefore, the document has to be accepted as an admissible and reliable document to indicate that the deceased died due to accidental fire.
40. We have gone through the abovecited judgment in Gaffar Badshaha Pathan [(2004) 10 SCC 589 : 2004 SCC (Cri) 2037] . In that case, this Court while dealing with the dying declaration produced on record held as under: (SCC p. 590f-h) "It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. The High Court erred in holding that the recording of the dying declaration and story stated therein apparently appears to be false and concocted. ... the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted."
41. In Ghurphekan v. State of U.P. [(1972) 3 SCC 361 : 1972 SCC (Cri) 531] this Court while dealing with the case which entirely rested on dying declaration of the deceased held as under: (SCC p. 362) "(i) A dying declaration, recorded within a few hours after the incident, when it bore the endorsement of the doctor, that the victim was at that time in 'proper senses' to be able to give the statement and where the evidence of the recording Magistrate showed no flaw in taking it down, there is no reason to reject it.
(ii) Where the dying declaration had two weaknesses, namely, it did not mention the name of one of the witnesses present at the spot and it did not account for the injuries on the persons of the attacking party, it cannot be rejected on those omissions only, if otherwise it could be shown to be true in other respects, by other satisfactory evidence.
(iii) Where the circumstantial evidence negatived the alternative case set up by the defence and the investigating officer's evidence about the place of incident, the medical officer's evidence in support of the prosecution about the manner of the occurrence of the incident, and the explanation of some witnesses for their presence at the spot, are consistent with the dying statement and the circumstantial evidence; the dying declaration possesses acceptability in spite of any weaknesses pointed out by the defence."
42. In Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] this Court held (SCC p. 218, para 11) that the statement of a person "as to any of the circumstances ... which resulted in his death" must have some close and proximate relation with the actual occurrence and proximity would depend upon the circumstances of each case for the purpose of admissibility of such statement as dying declaration under Section 32(1) of the Evidence Act, 1872.
43. In Kamalakar Nandram Bhavsar v. State of Maharashtra [(2004) 10 SCC 192 : (2010) 1 SCC (Cri) 495] this Court on scrutiny of the evidence on record found that the victim of dowry death/bride burning had suffered burn injuries to the extent of 94-95% could not have made dying declaration as stated by the doctor during the cross-examination that a dying declaration was made by the victim when she was in hospital. The alleged dying declaration was admitted in evidence at the behest of the defence by the trial court supportive to the defence of the accused. On the facts of the case, this Court observed that the source of production of dying declaration was neither mentioned in the trial court's judgment nor was there any evidence to prove the said document. In these circumstances, this Court held that the High Court had rightly rejected the said dying declaration.
44. In the present case, as noticed in the earlier part of the judgment A-1 and A-3 have not proved on record the source of production of the dying declaration by DW 2 who after recording the statement of the deceased was duty bound to hand over the alleged dying declaration under a sealed cover to the prosecuting agency. In this case, the origin and source of the alleged dying declaration produced by DW 2 at the time of his examination as a defence witness is highly doubtful and such document cannot be accepted as genuine and truthful document in support of the defence of A-1 and A-3.
45. In State (Delhi Admn.) v. Laxman Kumar [(1985) 4 SCC 476 : 1986 SCC (Cri) 2] this Court while dealing with a case of bride burning on the basis of dying declaration, held as follows: (SCC pp. 488 & 490, paras 21 & 25) "21. ... A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from [the] mouth of a person who is about to die and at that stage of life he is not likely to make a false statement. ...
***
25. ... Ordinarily, a document as valuable as a dying declaration is supposed to be foolproof and is to incorporate the particulars which it is supposed to contain."
Further, it is held that: (Laxman Kumar case [(1985) 4 SCC 476 : 1986 SCC (Cri) 2] , SCC p. 492, para 28) "28. ... unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the court."
It is also said that if the doctor happened to be present at the time of recording of the dying declaration and he had heard the statement made by the deceased, he would ordinarily endorse that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor.
46. In the present case, these basic principles are ignored by DW 2 at the time of recording of the alleged dying declaration of the deceased. As noticed above, the doctor has not made any endorsement on the dying declaration to state that it was recorded in his presence and attested by him. The mother of the deceased refused to put her thumb impression on the said document. Thus, the judgment cited above cannot strengthen the defence of A-1 and A-3 that the dying declaration, Ext. D-4 had been recorded by DW 2 by observing the principles laid down in the above-said case.
47. The prosecution in support of the charge of dowry death has produced and relied upon the testimony of PW 5 Parasmal, father; PW 6 Bhanvri, mother and PW 8 Mahender Kumar, "mama" (mother's brother) of the deceased. Before we proceed to deal with and consider the evidence of the prosecution on the question of dowry death, we may consider the ratio of the law laid down in the cases relied upon before us.
48. In Pawan Kumar v. State of Haryana [(1998) 3 SCC 309 : 1998 SCC (Cri) 740] this Court held that: (SCC p. 314, para 6) "6. ... The ingredients necessary for the application of Section 304-B are:(a) When the death of a woman is caused by any burns or bodily injury, or
(b) occurs otherwise than under normal circumstances,
(c) and the aforesaid two facts spring within 7 years of girl's marriage,
(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative,
(e) this is in connection with the demand of dowry."
(emphasis in original)
49. In Hira Lal v. State (Govt. of NCT), Delhi [(2003) 8 SCC 80 : 2003 SCC (Cri) 2016] this Court reiterated that the essential ingredients to attract application under Section 304-B are that: (SCC p. 81b-c) "(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance, (ii) such a death should have occurred within seven years of her marriage, (iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband, (iv) such cruelty or harassment should be for or in connection with demand of dowry, and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death."
Further it is said that the presumption under Section 113-B of the Evidence Act, 1872 is a presumption of law.
"... On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The essentials required to be proved for raising the said presumption are that (i) the question before the court must be whether the accused has committed the dowry death of the woman, (ii) the woman was subjected to cruelty or harassment by her husband or his relatives, (iii) such cruelty or harassment was for or in connection with any demand for dowry, and (iv) such cruelty or harassment was soon before her death." (Hira Lal case [(2003) 8 SCC 80 : 2003 SCC (Cri) 2016] , SCC p. 81c-d)
50. Again, in Kamesh Panjiyar v. State of Bihar [(2005) 2 SCC 388 : 2005 SCC (Cri) 511] , Ram Badan Sharma v. State of Bihar [(2006) 10 SCC 115 : (2007) 1 SCC (Cri) 166] , Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , Kailashv. State of M.P. [(2006) 12 SCC 667 : (2007) 2 SCC (Cri) 359] and Appasaheb v. State of Maharashtra [(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] this Court reiterated and reasserted the settled principles laid down in Hira Lal case [(2003) 8 SCC 80 : 2003 SCC (Cri) 2016] ."
54. After hearing the counsel for the parties, we find merit in the present appeal for the following reasons :
A. None of the witnesses of fact i.e. PW-1, father-informant, PW-2, PW-3 and PW-6, the real brothers of the deceased, has supported the prosecution version. Though PW-1 in chief examination has stated on the line of the F.I.R., however, in cross examination he has disowned his statement in Ex. Ka-1 forming basis of Chik F.I.R. (Ex.Ka-3) and has rather gone to the extent of saying that his daughter was of a feeble mind and sustained accidental burn injuries while cooking food. He further stated that when he had gone to the hospital, his daughter told him that while cooking food, she sustained burn injuries. This witness also stated that in the cremation of his daughter, his family and the family of accused side were present and there was no demand of dowry.
The two real brothers of the deceased have also stated that there was no demand of dowry and victim was happy in her matrimonial house. PW-3 has stated that her sister has developed irritable habit and was headstrong stubborn person. She sustained burn injuries while cooking food. Even PW-6, the other brother of the deceased, has not supported the prosecution version and rather stated that her sister was disturbed on account of non conceiving a child and committed suicide though her in-laws were treating her in a nice manner. Similar is the statement of PW-2, the mother of the deceased. She has also not supported the prosecution version. PW-4, who is the wife of PW-3, has also stated that the deceased died due to accidental burn injuries. One independent witness i.e. PW-5 who is the mediator in the marriage has also not supported the prosecution version.
All the prosecution witnesses i.e. PW-1 to PW-6 have even denied having made any statement under Section 161 Cr.P.C. to the police and, therefore, none of them have supported the prosecution version.
B. The sole ground for conviction of the appellants as held by the Trial Court is the Dying Declaration which was recorded by PW-10, an Executive Magistrate. However, in the light of the decisions in Dattatrya's Case, Shambhubhai Kalabhai Raval's Case, Umakant's Case and Kanti Lal's Case (Supra), we find that the Dying Declaration cannot be relied upon for the following reasons :
(i) PW-1, father of the deceased, stated in cross examination that when he visited, his daughter told him that her father-in-law and brother-in-law (devar) exhorted to pour kerosene oil on her. Her brother-in-law, Vijay, against whom the police did not submit challan, poured kerosene oil and her husband lit the fire whereas her father-in-law and brother-in-law, Jeet Singh, were standing there. In contrast to the statement of PW-1, in the Dying Declaration, the victim stated that "Gharwale" exhorted and asked Dilawar to light the fire and her husband poured kerosene oil but she did not know who lit the fire. Her husband came after consuming liquor and then said that he was going somewhere and threatened to put her on fire. Upon which, the victim stated that he may do so and then her husband lit the fire.
The two versions given by PW-1 and in the Dying Declaration are quite contradictory.
(ii) In the Dying Declaration recorded by PW-10 has two endorsements of the doctor one at the top and one at the bottom. At both places, there is seal of E.M.O., S.N.M. Hospital with initial of the Doctor but, the name of the doctor is not mentioned in both the endorsement. The doctor has stated that the victim-Shashi is fully conscious and can give her Dying Declaration. On the bottom, again the doctor stated that during recording of the Dying Declaration she was conscious. It is surprising that the doctor has given such endorsement that the victim can give her Dying Declaration though in ordinary course, the doctor gives an opinion that the victim is in the fit state of mind to get her statement recorded. This raises serious suspicion that the endorsement on the top and bottom of the Dying Declaration where the doctor has used the word "Dying Declaration" instead of "Statement" show that these endorsements were made subsequently when the deceased died and that is why the term "Dying Declaration" has been used instead of "Statement". In both the endorsements, the Doctor has not given any opinion that the victim was in a fit state of mind to get her statement recorded and it is only stated that she is conscious to give her dying declaration. Therefore, in the absence of any specific opinion by the doctor that the victim is in fit mental state to give the statement, the Dying Declaration become highly suspicious.
(iii) In the light of the decisions referred to above, PW-10 has not recorded his satisfaction by asking some preliminary questions that the victim was in a fit mental condition to make her statement specially when the doctor who made the endorsement was not examined. Even his statement under Section 161 Cr.P.C. was not recorded.
(iv) There is no corroboration by any family members i.e. PW-1 to PW-6 that PW-10 had recorded the Dying Declaration naming the accused.
(v) In the Dying Declaration, nothing is recorded that on account of demand of dowry or maltreatment or that the victim was subjected to cruelty due to which her husband by pouring kerosene oil has lit the fire.
(vi) A careful perusal of statements of PW-1 to PW-6, the witnesses of facts, show that no motive is attributed to the accused. Even in Dying Declaration, no motive is attributed.
(vii) There is no witness on Dying Declaration though it has come in evidence that the father, mother, and brothers of deceased were present at the spot.
(viii) There is no endorsement by PW-10 that after recording the dying declaration, he has read over the same to the victim and after understanding the same, she has put her thumb impression.
Therefore, the Dying Declaration is doubtful and is not reliable and benefit of doubt has to be given to the accused.
C. As per the statement of the doctor who treated both the victims i.e. deceased-Shashi and Accused-Dilawar Singh, both the victims had sustained burn injuries. As per his statement, victim-Shashi sustained burn injuries on the front portion of her body and there were few injuries on the back side of her body which suggest that she sustained burn injuries in accidental fire. Similarly, appellant-Dilawar Singh has sustained burn injuries on the front side of his body i.e. neck, chest and both the hands which also suggest that while dousing the fire, he sustained the burn injuries.
D. It has come in the statement of PW-1, father of the victim and PW3 & 6, the two real brothers of the victim-deceased, that the victim was arrogant and short tempered and she was mentally disturbed for not bearing a child. PW-6 has gone to the extent that she has committed suicide on that account which supports the defence version that the deceased died due to accidental fire.
55. In view of the above, the present appeal is allowed and the appellants are acquitted of the charges. As noticed above, one of the appellants namely Jagat Singh has died. Appellant-Dilawar Singh was never granted bail and as of today he has undergone more than 12 years and 5 months of actual sentence. Appellant-Virendra Singh who was awarded 10 years of rigorous imprisonment has also undergone substantive sentence as he was granted bail by this Court.
56. Accordingly, judgment of conviction and order of sentence is set aside. Bail bond of accused Virendra is discharged. Appellant Dilawar Singh be released from the custody forthwith if he is not required in any other case.
57. The Trial Court's record be remitted back.
58. Mr. Arun Kumar Singh (A/A 1906/2012), learned Amicus Curiae, appointed by the Court be paid his fee by the High Court Legal Services Committee.
Order Date :- 9.8.2024 SKS