Aslam And Anr. vs State Of U.P. on 17 May, 2017

[Cites 24, Cited by 1]

Allahabad High Court

Aslam And Anr. vs State Of U.P. on 17 May, 2017

(1) These three criminal appeals have been preferred by the appellants, Aslam, Smt. Gulbahar, Riyajul Hasan, Phateyab, Shaukat and Smt. Gullo against the judgment and order dated 15.11.2011 passed by learned Special Judge Anti-Corruption/ Additional District Judge, Meerut in Session Trial No. 177 of 2009 (State Vs. Phateyab and others), Sessions Trial No. 178 of 2009 (State Vs. Gulbahar and two others) and Session Trial No. 179 of 2009 (State Vs. Aslam), arising out of Case Crime No. 61 of 2008, under Sections 498A, 304B I.P.C and 3/4 Dowry Prohibition Act, P.S.- Mundali, District- Meerut, whereby the appellants Phateyab, Smt. Gullo, Smt. Gulbahar and Aslam have been convicted and sentenced to imprisonment for life under Sections 304B I.P.C., three years rigorous imprisonment and fine of Rs. 1,000/- u/s 498A I.P.C. and one year rigorous imprisonment and fine of Rs. 3000/- each under Section 4 of Dowry Prohibition Act while appellant Riyajul has been acquitted of the charge under Section 304B I.P.C. but convicted and sentenced to three years rigorous imprisonment and fine of Rs. 5000/- u/s 498A I.P.C. and one year rigorous imprisonment and fine of Rs. 1000/- under Section 4 of Dowry Prohibition Act. All the accused-appellants were acquitted of the charge under Section ¾ of Dowry Prohibition Act. All the sentences were directed to run concurrently. The order further provided that in case of default in payment of fine awarded for their conviction under Section 498A I.P.C. and Section 4 of Dowry Prohibition Act, each of the appellants shall be liable to serve additional imprisonment of two months and four months each respectively.

(2) Since all the three session trials arise out of the same occurrence and same crime and have been decided by the same judgement and order, they are being heard together and decided by a common judgement.

(3) Briefly stated the facts of the case are that P.W.1 Jakir lodged a written report (Ext.Ka.1) at P.S.-Mundali, District-Meerut alleging therein that marriage between his daughter, Sabila and appellant Phateyab, son of Shaukat, resident of Jisouri, P.S.- Mundali was solemnized on 07.05.2006 and soon thereafter, her husband and his other relatives started demanding Rs. 50,000/- in cash and one motorcyle as additional dowry although the informant had given sufficient dowry as per his financial capacity to them at the time of the marriage of his daughter and when his daughter conveyed the demands of additional dowry made by her husband and his other relatives from her to him, he told them that he was a very poor man and was not in a position to fulfill their demands on which her husband Phateyab, father-in-law Shaukat, brother-in-law (Jeth) Aslam, Smt. Gulbahar (sister-in-law, Jethani) and Smt. Gullo (sister-in-law, Nanad) came to his house, abused his daughter and also beat her and declared that she would not be allowed to live in her matrimonial home till their demands were fulfilled. On 02.03.2008 with the intention of causing death of his daughter, Smt. Sabila, Smt. Gullo poured kerosene oil on her and her husband set her ablaze. In the written report (Ext.Ka.1), it was further alleged that his daughter, Smt. Sabila was admitted to City Nursing Home where she was being treated for her burn injuries. On the basis of the written report (Ext.Ka.1) lodged by P.W.1 Zakir, Case Crime No. 61 of 2008 was registered at P.S.- Mundali, Distrcit- Meerut under Section 307, 504 I.P.C. and Section ¾ Dowry Prohibition Act against all the accused.

(4) The investigation of the case was entrusted to P.W.5 S.I. Sunil Kumar, who reached the place of occurrence and after recording statements of the witnesses, inspected the place of crime and prepared its site plan (Ext.Ka.7). He also seized a canister containing remains of kerosene oil and plain and oil-soaked earth from the place of incident and prepared recovery memo of the aforesaid article. The dying declaration of the deceased was recorded on 04.03.2008 before P.W.3 S.K. Gupta, Executive Magistrate, Vasant Vihar, New Delhi. Injured Smt. Sabila died on 09.03.2008 whereafter, the case was converted to one u/s 304B I.P.C. Postmortem examination on the cadaver of Smt. Sabila which was conducted by P.W.4 Dr. Sarvesh Tandon, started at about 10:30 A.M. on 10.03.2008 and was concluded on the same day at 11:30 A.M. Postmortem report of the deceased which was prepared by P.W.4 Dr. Sarvesh Tandon is on record as (Ext.Ka.3). After completing the investigation, the Investigating Officer submitted charge-sheet against all the accused-appellants u/s 304B, 498A I.P.C. and Section ¾ of Dowry Prohibition Act before the Chief Judicial Magistrate, Meerut.

(5) Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Session, Chief Judicial Magistrate, Meerut committed all the three cases for trial of the accused to the Court of Sessions Judge, Meerut where the same were registered as Sessions Trial Nos. 177 of 2009, 178 of 2009 and 179 of 2009 and made over for trial to the Court of Special Judge Anti-Corruption/ Additional District Judge, Meerut who on the basis of the material on record and after hearing the prosecution and the accused-appellants on the point of charge framed charge against the accused-appellants under Sections 498A, 304B I.P.C. and Section ¾ of Dowry Prohibition Act. The accused-appellants abjured the charge and claimed trial.

(6) The prosecution in order to prove its case examined as many as eight witnesses of whom P.W.1 informant Jakir, father of the deceased and P.W.2 Smt. Sakeela, mother of the deceased were examined as witnesses of fact while P.W.3 S.K. Gupta, Executive Magistrate, Vasant Vihar, New Delhi, P.W.4 Dr. Sarvesh Tandon, Senior Physician, Safdarganj Hospital, New Delhi, P.W.5 S.I. Sunil Kumar, first Investigating Officer of the case, P.W.6 Constable Clerk Sompal Singh, P.W.7 S.I. Arun Kumar Kaushik, second Investigating Officer of the case and P.W.8 Pooran Singh, Deputy S.P. (Retired), third Investigating Officer of the case were produced as formal witnesses. Apart from oral evidence, the prosecution had also adduced documentary evidence for proving the charge against the accused-appellants comprising of written report of the occurrence (Ext.Ka.1), dying declaration of the deceased (Ext.Ka.2), death report (Ext.Ka.3), reports of the Executive Magistrate (Ext.Ka.4 and Ka.5), report of the Forensic Expert (Ext.Ka.6), site plan (Ext.Ka.7), recovery memo (Ext.Ka.8), container containing kerosene oil (Ext.Ka.9) check F.I.R., (Ext.Ka.10) and G.D. entry (Ext.Ka.11).

(7) The accused-appellants Phateyab, Mohd. Aslam, Shaukat Ali, Smt. Gulbahar, Smt. Gullo and Riyazul Hasan in their statements recorded u/s 313 Cr.P.C. denied that the deceased was either harassed or maltreated by them for non-fulfillment of any demand of dowry nor they had burnt her. They further stated that the deceased had stated false and incorrect facts in her dying declaration. The accused-appellant examined one S.O. Mohd. Shafi as D.W.1.

(8) Learned Special Judge Anti-Corrruption/ Additional District Judge, Meerut after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted the accused-appellants and awarded aforesaid sentences to them.

(9) Hence this appeal.

(10) Sri V.M. Zaidi, learned Senior Counsel has vehemently submitted that both the witnesses of fact, father and mother of the deceased who were examined by the prosecution to prove the charge framed against the accused-appellants having failed to support the prosecution case and declared hostile, the conviction of the appellants recorded solely on the basis of the dying declaration of the deceased which neither appears to be trustworthy nor inspires any confidence cannot be maintained and is liable to be set aside. He further submitted that in the absence of certificate of doctor that at the time of the recording of the dying declaration the deceased was in a fit mental condition, no legal sanctity can be attached to the dying declaration of the deceased and even if the facts stated by the deceased in her dying declaration are accepted to be gospel truth, the offence u/s 304B I.P.C. against the appellants Aslam and Smt. Gulbahar in Criminal Appeal No.6646 of 2011 is not proved. Moreover, the allegations made against the aforesaid appellants in the dying declaration of the deceased with regard to demand of dowry made by them from her and her parents and her being harassed by them in connection with unfulfilled demands of dowry along with her husband Phateyab, father-in-law Shaukat and sister-in-law Smt. Gullo are vague and sweeping in nature and by no stretch of imagination, the appellants Aslam, Smt. Gulbahar and Riyazul can be said to be the beneficiaries of the dowry, if any, demanded by the deceased's husband, father-in-law and sister-in-law from her and her father and the offences u/s 498A I.P.C. and Section 4 of Dowry Prohibition Act also do not stand proved against the appellants Aslam, Smt. Gulbahar and Riyazul. He also submitted that the prosecution having failed to prove by any cogent evidence that soon before being set on fire, the deceased had been tortured by the accused-appellants in connection with any demand of dowry, one of the most essential ingredient of an offence under Section 304B I.P.C., the recorded conviction of the appellants under Section 304B I.P.C. is per-se illegal and cannot be sustained. He lastly submitted that though Section 304B I.P.C. prescribes awarding of imprisonment for a term which shall not be less than seven years but which may extend for life, yet according to him the instant case is not a case where the trial Judge should have awarded life sentence to the appellants. Learned counsel for the appellants submitted that any term of more than seven years would meet the ends of justice and since in this case, 9 years imprisonment has already been undergone by the appellants Phateyab and Smt. Gullo, this Court should allow the appeal to this extent by modifying the impugned judgement insofar as the quantum of sentence is concerned and reduce the same from life imprisonment to that of 12 years.

(11) Per contra Sri Saghir Ahmad, learned AGA appearing for the State submitted that it is proved from the dying declaration of the deceased (Ext.Ka.2) and other evidence available on record that the accused-appellants had set the deceased on fire after pouring kerosene oil on her on account of non-fulfillment of the demands of dowry made by them from her and her parents within two years of her marriage in her matrimonial house. The prosecution case is not at all adversely affected on account of the failure of the two witnesses of fact produced by the prosecution to support the prosecution case during the trial and their being declared hostile. He next submitted that having regard to the totality of circumstances emerging out from the evidence and the fact that a young bride was murdered in her matrimonial home within seven years of her marriage, the award of sentence of life imprisonment to the appellants is fully justified and hence, this Court should not interfere in quantum of sentence. This appeal lacks merit and is liable to be dismissed.

(12) We have heard Sri V.M. Zaidi, learned Senior Advocate assisted by Sri M.J. Akhter and Mohd Imran, learned counsel for the appellants and Sri Saghir Ahmad, learned AGA for the State and perused the record of this case.

(13) Record shows that the accused-appellants were tried and convicted by learned Special Judge Anti-Corruption/ Additional District Judge, Meerut for having caused dowry death of one Smt. Sabila, wife of appellant no.1, Phateyab, son of Shaukat, in Criminal Appeal No. 6645 of 2011 by setting her ablaze in her matrimonial home after pouring kerosene oil on her on 02.03.2008 at about 7 P.M. in the evening.

(14) Record further shows that marriage between Smt. Sabila and appellant no.1, Phateyab was solemnized on 07.05.2006. Soon after her marriage, her husband, his brother Aslam, father Shaukat, sisters-in-law Smt. Gullo and Smt. Gulbahar and Riyazul Hasan, (father of Smt. Gulbahar) started demanding Rs. 50,000/- and a motorcycle from her and her parents as dowry and when the aforesaid demands remained unfulfilled, they started torturing and maltreating her and also threatening her that in case demands of dowry were not fulfilled, they would kill her. On 02.03.2008 at about 7 P.M., her husband Phateyab beat her and then threw a piece of brick on her foot. Then her sister-in-law, Gullo pressed her neck and her father-in-law, Shaukat Ali exhorted to burn her alive on which her sister-in-law, Smt. Gullo poured kerosene oil on her and her husband set her ablaze. On her raising cries for help, her neighbours rushed to her house and doused the fire. Deceased Smt. Sabila was admitted to Safdarganj Hospital by her parents. The written report of the incident (Ext.Ka.1) was given by P.W.1 informant Jakir, father of the deceased at P.S.- Mundali, District- Meerut on 03.03.2008 at about 9:30 A.M. on the basis of which Case Crime No. 61 of 2008 u/s 307, 504 I.P.C. and Section ¾ Dowry Prohibition Act was registered against the accused-appellants Phateyab, Shaukat Ali, Aslam, Smt. Gulbahar, Smt. Gullo and Riyazul Hasan.

(15) Since both the witnesses of fact, P.W.1 informant Jakir and P.W.2 Sakeela, father and mother of the deceased had failed to support the prosecution case as spelt out in the written report (Ext.Ka.1) which was lodged by P.W.1 informant Jakir at P.S.- Mundali, District- Meerut, they were declared hostile. The only piece of evidence left on record for proving the guilt of the accused-appellants is the dying declaration of the deceased (Ext.Ka.10) which was recorded before P.W.4 S.K. Gupta, Executive Magistrate, Vasant Vihar, New Delhi on 04.03.2008.

(16) Thus, the question which arises for our consideration is that whether the trial court was justified in convicting the appellant on the basis of the dying declaration of the deceased alone which was not corroborated by evidence of any independent witness. While dealing with the dying declaration, the Apex Court in paragraph 34 of its judgement 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."

(17) 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."

(18) 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"

(19) 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."

(20) 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."

(21) Thus what follows from the reading of the aforesaid authorities is that a dying declaration can form sole basis for conviction, if it is free from any kind of doubt and has been recorded in the manner as provided under the law, is reliable and gives cogent and plausible 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 recorded by a Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement.

(22) We now proceed to test the reliability of the dying declaration of the deceased (Ex.Ka.2) in this case on the touch stone of the principles expounded herein above. The dying declaration of the deceased Smt. Sabila recorded in this case before P.W.3 S.K. Gupta, Executive Magistrate, is being reproduced herein below:

" iz0& vkidk D;k uke gSA lchykA iz0 vkidh 'kknh dc gqbZ Fkh\ th ,d lky iwjk gks x;k gS] nwljk yxk gSA rkjh[k ;kn ugha gSA iz0 ;g gknlk dc o dSls gqvk\ 02&3&08 dks 'kke djhc lkr cts esjs ifr us eq>s ekjkA esjs iSj esa bZV Hkh ifr us ekjhA fQj uun xqYyks us esjk xyk nck fn;k vkSj llqj us dgk fd bldks tyk nksA mlds ckn esjh uun xqYyks us esjs mij feV~Vh dk rsy Mky fn;kA blds ckn esjs ifr us eq>s vkx yxk nhA esjs 'kksj epkus ij iM+kslh vk x;s vkSj vkx cq>kbZA fQj eSa csgks'k gks xbZA tc eq>s gks'k vk;k rks eSa flVh gkfLiVy esjB esa FkhA iz0 D;k llqjky okys vkils ngst vkfn dh ekax djrs gSaA th gkW] ges'kk esjk ifr] tsB] uun ¼xqYyks½ vkSj ftBkuh ¼xqjhLrk½ o ftBkuh dk firk ¼fj;ktqy½] llqj ¼'kkSdr vyh½ eq>s rax djrs jgrs gS] ekjihV djrs gS vkSj ngst Hkh ekaxrs jgrs gSaA vHkh Hkh :0 50000@& udn ekax jgs Fks ftldh otg ls >xM+k gqvk FkkA lHkh ;g dg jgs Fks fd :0 50000@& vius cki ls ykdj ns ugha rks rq>s tku ls ekj nsaxsA ges'kk eq>s ekjrs jgrs gSaA iz0 vki fdlh ds f[kykQ dk;Zokgh pkgrh gks] th gkW] eSa pkgrh gwW fd esjs ifr ¼Qkfr;kc½] o tsB ¼vlye½] uun ¼xqYyks½] ftBkuh ¼xqfjLrk½] llqj ¼'kkSdrvyh½] o ftBkuh dk firk ¼fj;ktqy½ ds f[kykQ l[r dk;Zokgh dh tk,A O;ku lqu fy;k gS tks fd Bhd gSA (23) The prosecution had examined P.W.3 S.K. Gupta, Executive Magistrate to prove the dying declaration of the deceased which was recorded before him on 04.03.2008. P.W.3 in his evidence recorded before the trial court deposed that on 04.03.2008, he was posted as Executive Magistrate in Vasant Vihar, New Delhi. Upon receiving information that one Smt. Sabila, wife of appellant no.1, Phateyab, resident of village- Jisauri, District- Meerut, aged about 18-years-old had been admitted for treatment in Safdarganj Hospital, New Delhi and had been allotted Bed No.7 in the ICU, he reached there and contacted the doctor on duty who examined the patient in his presence and after her check-up, he told him that the patient was in a fit mental state to give her statement. He further deposed that he had recorded the dying declaration of the deceased in 'Question-Answer' form and had written the replies given by the deceased to the questions put by him to her in his own hand-writing and after recording her dying declaration, he had first read out the same to Smt. Sabila and she after being satisfied, had affixed her left foot-thumb impression on the dying declaration which was certified by him on the spot by putting his signature. The dying declaration of the deceased was filed as Paper No. 3A/6 which was proved by P.W.3 to be in his hand-writing. He also proved that the thumb impression affixed on the dying declaration was that of Smt. Sabila. The dying declaration of the deceased was marked as (Ext.Ka.12). He denied the suggestion given to him by the defense counsel during the cross-examination that the deceased was not in a condition to give her statement or that he had manufactured or he had recorded a wrong statement of the deceased in connivance with and under the pressure of her family members or that as such no dying declaration was given by the deceased before him. On being questioned by the defense counsel during his cross-examination that whether before recording her statement, he had inquired from the deceased that she was giving her statement voluntarily without any fear or pressure, she answered in the negative and said that after talking to the deceased, it appeared to him that she was not under any pressure and before proceeding to record her statement, he had told her to give her statement without any fear or pressure. The reliability of the dying declaration has been specifically challenged by the learned counsel for the appellant on the ground of absence of certificate of doctor at the time of the recording of the dying declaration certifying that the deceased was in a fit mental condition.

(24) After carefully perusing the dying declaration of the deceased, we find no merit in the aforesaid ground of challenge. It is true that the dying declaration of the deceased does not contain the certificate of the doctor who had examined her immediately before the recording of the dying declaration and found her in a fit state of mind. But the dying declaration contains a clear and categorical recital in the hand-writing of P.W.3 S.K. Gupta that before the recording of the statement of the deceased had commenced at 5:55 P.M. on 04.03.2008, she was examined by the doctor on duty who had declared her fit for recording of her statement and it was only thereafter, that P.W.3 proceeded to record her statement. The defense counsel had cross-examined P.W.3 in extenso, but there does not appear to be any challenge by him to the veracity of the aforesaid recital recorded in the dying declaration of the deceased (Ext.Ka.2). No suggestion was given to P.W.3 that he had any animosity towards the accused-appellants on account of which he may have recorded wrong facts in the dying declaration of the deceased.

(25) The facts stated by the deceased give a cogent and plausible explanation of the occurrence. She has assigned specific role in the occurrence to each of the accused namely Phateyab, Shaukat, Smt. Gullo and has stated the time, date and place of occurrence with precision. She has categorically stated that she was burnt by her husband and his other relatives on account of non-fulfillment of the demand of Rs. 50,000/- as cash made by them from her and her father.

(26) Thus, we find that the deceased in her dying declaration (Ext.Ka.2) had stated that on the date of occurrence, her husband Phateyab (A1) in Criminal Appeal No. 6645 of 2011 had hit her with a piece of brick whereafter her sister-in-law (nanad) Smt. Gullo (A2) in Criminal Appeal No. 6645 of 2011 had pressed her neck and her father-in-law Shaukat Ali who died during the trial, had exhorted to set her ablaze on which her sister-in-law Smt. Gullo had poured kerosene oil on her and thereafter, her husband Phateyab had set her ablaze. The deceased in her dying declaration has further stated that her husband Phateyab, father-in-law Shaukat Ali, brother-in-law Aslam, sister-in-law (jethani) Smt. Gurista and her father Riyazul Hasan, sole appellant in Criminal Appeal No. 6685 of 2011 used to demand dowry from her and subject her to torture and maltreatment on account of non-fulfillment of the demand of dowry. But we find that the appellants Aslam, Smt. Gulbahar and Riyazul cannot be held to be beneficiaries of any dowry demanded by deceased's husband Phateyab, her father-in-law Shaukat Ali and her sister-in-law Smt. Gullo from her and her father. Admittedly, the appellants Aslam, Smt. Gulbahar and Riyazul were neither present at the place of occurrence at the time of the incident nor the deceased has assigned any overt act to them in her dying declaration at the time when she was set ablaze by her husband Phateyab after her sister-in-law Smt. Gullo had poured kerosene oil on her on the exhortation of her father Shaukat (deceased's father-in-law).

(27) It is also proved from the dying declaration that soon before she was set on fire, she was tortured by her husband Phateyab, father-in-law Shaukat, sister-in-law Smt. Gullo in connection with unfulfilled demand of dowry of Rs. 50,000/- cash made by them from her.

(28) The veracity of the dying declaration cannot be doubted merely on the ground of absence of doctor's certificate that she was in a fit mental state to give her statement. The very fact that the dying declaration in this case was recorded by an Executive Magistrate puts the same on a higher pedestal than the dying declaration recorded by an officer of lower rank. The dying declaration of the deceased is further consistent with the prosecution case as spelt out in the F.I.R. which was lodged by the deceased's father P.W.1 informant Jakir although later during the trial, he failed to support the prosecution case.

(29) P.W.5 S.I. Sunil Kumar, the first Investigating Officer of the case has also deposed that he had seized a white plastic canister which contained about 100 gm of kerosene oil film and oil-stained soil from the place of occurrence and sealed the same separately and thereafter, he had prepared a recovery memo of the aforesaid articles and proved the same as (Ext.Ka.8). The recovery of a plastic canister containing about 100 gm of kerosene oil lends support to the prosecution theory that the deceased was set ablaze after kerosene oil was poured on her in her matrimonial home.

(30) P.W.4 Dr. Sarvesh Tandon who had conducted autopsy on the dead body of deceased and prepared her postmortem report (Ext.Ka.6), in his evidence tendered during the trial proved the postmortem report of the deceased (Ext.Ka.6) and further deposed that the deceased had died as a result of septicemic shock due to dry, flame, thermal, antemortem burn injuries. Thus, the medical evidence on record fully corroborates the prosecution case that the deceased died as a result of burn injuries sustained by her on account of her being set ablaze by her husband Phateyab after her sister-in-law Smt. Gullo had poured kerosene oil on her.

(31) Thus, in view of the foregoing discussion, we hold that the learned Trial Judge did not commit any error in convicting the appellants Phateyab and Smt. Gullo in Criminal Appeal No. 6645 of 2011 u/s 304B, 498A I.P.C. and Section 4 of Dowry Prohibition Act. However, the recorded conviction of the appellants, Aslam and Smt. Gulbahar, in Criminal Appeal No. 6646 of 2011 u/s 304B I.P.C. and sole-appellant Riyazul in Criminal Appeal No. 6685 of 2011 u/s 498A I.P.C. and Section 4 of Dowry Prohibition Act cannot be sustained. The appellants Aslam, Smt. Gulbahar and Riyazul are liable to be acquitted of all the charges.

(32) Before examining the challenge by the learned counsel for the appellants in Criminal Appeal No. 6645 of 2011 to the quantum of punishment (life imprisonment awarded to them) on merit, it would be useful to reproduce Section 304B I.P.C. hereinafter :-

Section 304B I.P.C. :- 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.

(33) Now, the question arises as to whether we should reduce the appellant's sentence and if so, to what extent, as urged by the appellants' counsel.

(34) This issue has been the subject matter of debate before the Apex Court in several cases, which arose out of Section 304-B I.P.C read with Section 498-A I.P.C. and wherein the Apex Court while interpreting the expression "may" occurring in Section 304-B I.P.C held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence under Section 304-B I.P.C. It was held that the Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case.

(35) In the case of Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, the courts below had awarded life term to the accused under Section 304-B I.P.C. read with Section 498-A I.P.C. but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under:

"7........ the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.

8. Hence, we are of the view that a sentence of 12 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B I.P.C., reduce the sentence of imprisonment for life to 10 years' RI....."

(36) Similarly this Court in State of Karnataka Vs. M.V. Manjunathegowda and Anr., (2003) 2 SCC 188, while convicting the accused under Section 304-B I.P.C. awarded 10 years imprisonment in somewhat similar facts.

(37) Recently in G.V. Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152, this Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H. L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I.P.C. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B I.P.C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

(38) Learned counsel for the State has not been able to cite any authority in support of her submission except to oppose the prayer made by the appellant.

(39) The appellants Phateyab and Smt. Gullo in Criminal Appeal No. 6645 of 2011 on the date of occurrence were about 23 and 27 years old respectively. Presently, appellant no.1, Phateyab is a young man aged about 30 years while appellant no.2, Smt. Gullo is a married woman aged about 36 years. Both the appellants are in jail since 2008 and they have already undergone rigorous imprisonment of 9 years. The appellants admittedly have no criminal antecedents and there has never been any complaint against them during their incarceration. Moreover, the deceased in her dying declaration qua the appellant no.2, Smt. Gullo, has stated that she had poured kerosene oil on her while the role of causing injury to her by a brick and then setting her ablaze has been assigned to appellant no.1, Phateyab, her husband. The role of appellant no.2, Smt. Gullo is distinguishable from that of appellant no.1, Phateyab, husband of the deceased.

(40) Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would be met, if we reduce the sentence of the appellant no.1, Phateyab from life imprisonment to that of 12 years and that of appellant no.2, Smt. Gullo from sentence of life imprisonment to the period of imprisonment already undergone by her which in the present case is about 9 years. In our view, this case does not fall in the category of a "rare case" as envisaged by this Court so as to award the appellants the life imprisonment.

(41) In view of the foregoing discussion, Criminal Appeal Nos. 6646 & 6685 of 2011, State Vs. Aslam and Smt. Gulbahar and State Vs. Riyazul respectively are hereby allowed. The appellants Aslam, Smt. Gulbahar and Riyazul are acquitted of all the charges. The appellants, Aslam and Smt. Gulbahar are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. We have been informed that appellant Riyazul in Criminal Appeal No. 6685 of 2011 has already undergone the entire period of imprisonment awarded to him for his conviction u/s 498A I.P.C. and Section 4 of Dowry Prohibition Act, has been released thereafter.

(42) Criminal Appeal No. 6645 of 2011, State Vs. Phateyab and Smt. Gullo also succeeds partially and is allowed in part. The recorded conviction of the appellants Phateyab and Smt. Gullo u/s 304B I.P.C. and the sentences awarded to them under Section 498A I.P.C. and Section 4 of Dowry Prohibition Act are upheld but the awarded sentence of life imprisonment to appellant no.1, Phateyab is reduced to 12 years rigorous imprisonment while that of appellant no.2, Smt. Gullo is reduced to the period of imprisonment already undergone by her.

(43) There shall however be no order as to costs.

(44) The impugned judgement and order stands modified accordingly.

Order Date :- 17.5.2017 SA/KS

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