Akhilesh Rai And Another vs State Of U.P. on 23 July, 2010

[Cites 14, Cited by 1]

Allahabad High Court

Akhilesh Rai And Another vs State Of U.P. on 23 July, 2010

(Delivered by Hon'ble Mrs. Poonam Srivastav, J.) Both criminal appeals arise from a common Session Trial No.274 of 1999 State of U.P. Vs. Lal Baboo Rai and two others. Judgment and order of conviction dated 9.10.2006 was passed by Additional Sessions Judge, court no.16, Deoria, convicting appellants Akhilesh Rai (husband), Lal Baboo Rai (father-in-law) and Prabhawati Rai (mother-in-law).

Appellants Akhilesh Rai and Lal Baboo Rai have been convicted under Section 304-B I.P.C. and are sentenced to undergo life imprisonment, appellant Prabhawati has been convicted and sentenced to ten years R.I. under Section 304-B I.P.C., All the appellants are sentenced under Section 498-A I.P.C. two years R.I. and fine of Rs.2,000/- each, in default of payment of fine, two months additional imprisonment and under Section 4 Dowry Prohibition Act one year R.I. and fine of Rs.5000/- each. In default of payment of fine, five months additional imprisonment.

Occurrence is alleged to have taken place on 21.7.1998 in village Kataura, Police Station Gauri Bazar, District Deoria. Gunjana Rai @ Munnu is the deceased. On the basis of an application given to D.I.G. Gorakhpur, on 28.7.1998, first information report was registered on 31.7.1998 at 12:35 p.m. 2 Distance from the place of occurrence to police station is alleged to be 7 kilometres. First informant is Daya Ram Rai son of Tunmun Rai resident of village Dabara, Police Station Khesraha, District Sant Kabir Nagar.

According to prosecution story given out in the first information report, first informant's daughter Gunjana Rai was married to appellant no.1 Akhilesh Rai on 30.4.1995. Sufficient dowry was given but there was some dispute on account of demand of dowry at the time of marriage, however, on intervention of relatives, marriage ceremony took place. Vidai did not take place at the time of marriage but Gauna ceremony was performed after three year i.e. on 20.4.1998. There is a specific allegation of harassment to the deceased on account of non- fulfilment of demand of Rs.40,000/-. The appellants were dissatisfied with the dowry at the time of marriage. It is also alleged that the deceased was subjected to cruelty. She had written a letter to first informant before she was set ablaze on 21.7.1998. The daughter of PW-1 was badly burnt. A number of nearby residents arrived at the scene of incident. Elder son-in-law of first informant Shiv Dayal Rai and his wife (first informant's daughter Sunita Rai) who used to live in the same village, also reached the place of incident. The victim was admitted in Gorakhpur Medical College. Report was lodged because life of Gunjana Rai was in danger.

Post mortem on the body of deceased Gunjana Rai was performed by Dr. O.N. Gupta on 12.8.1998 at 6:15 p.m., which is Ext. Ka-6.

Ante mortem injuries as mentioned in autopsy are septic burn on the abdomen, both lower limbs on the Rt. upper limb at places front & back, foul smell pus is present.

Cause of death, according to the doctor, is due to septicaemia and shock as a result of burn injuries.

Prosecution examined as many as 12 witnesses to substantiate its case namely Daya Ram Rai father of the deceased who lodged F.I.R. as PW-1, Shiv Dayal Rai brother-in-law (Jija) of the deceased PW-2, Dhru Kumar Rai brother-in-law of the deceased PW-3, Dhananjay Rai PW-4, C.O. Ram Mohan Ram Investigating Officer PW-5, Constable Girish Chand Pathak PW- 6 who proved Chik, Dr. O.N. Gupta PW-7 proved autopsy, Ram Prasad Nishad PW-8 Sub-Inspector Gauri Bazar who was posted at police station at the time when report was lodged, Naib Tehsildar Kamruddin PW-9, Constable Nizam Uddin PW-10, S.H.O. D.K. Srivastava PW-11, Naib Tehsildar Subhash Chand Dubey PW-12 proved dying declaration.

Sri Ashok Nath Tripathi learned counsel appearing for appellants has challenged judgment of conviction on a number of grounds and proposes to castigate the evidence against appellants on the under noted grounds:-

(1) First information report is highly delayed. Why was F.I.R. not lodged immediately after the incident when the first informant was present all along.

(2) First information report is not reliable as original written F.I.R. was thrown away only typed copy admittedly typed by a stenographer is on record. Therefore, F.I.R. is false and concocted.

(3) All family members of the deceased knew that it was an accidental case. Appellants had no hand in it. In fact, conduct of appellants spells out altogether a different story.

(4) Investigation is tainted because statements have been recorded on imagination of Investigating Officer. Neither he had gone to the medical college nor did he make any effort to interrogate the witnesses.

(5) Dying declaration is not at all reliable. (6) There was neither any demand of dowry nor it was 4 expected from Daya Ram Rai as he had twelve daughters and on his own admission, he had not given dowry in the marriage of any of his daughters.

Sri A.N. Tripathi Advocate appearing on behalf of appellants has at very outset castigated first information report and submitted that it has no evidentiary value. On perusal of the statement of PW-1, it transpires that he has repeated allegations of demand of dowry and that his daughter being subjected to cruelty for non-fulfilment of demand, she was killed at the hands of appellants. Incident took place on 21.7.1998 but admittedly first information report was lodged by father of the deceased, Daya Ram Rai on 31.7.1998 at 12:35 hours. Appellants' counsel has pointed out cross examination of PW-1 wherein witness has admitted that he was in medical college where his daughter was getting medical assistance. He has admitted that he all along stayed at Gorakhpur Medical College but he did not lodge first information report for ten days though police station was just across burn ward of the hospital. First information report which is proved by PW-1 is a typed copy and not hand written one. He has also admitted that typist made necessary amendment in the first information report at the time when it was being typed by him.

An application given to D.I.G. was got typed by typist near Gorakhnath Temple. Witness further elaborates that first information report was got typed by typist who had legal knowledge and was aware about legal flaws in the first information report hand written by father of the deceased and he made necessary correction. Typist has not been examined but witness admits that it is the same report which was typed by typist after bringing about necessary amendment in the first information report. He further admits that hand written application by him was torn off and thrown away. Application given to D.I.G. was one which was also amended, corrected and 5 typed by typist. In view of this unequivocal assertion by PW-1, counsel appearing on behalf of defence has laid emphasis on his argument that foundation of prosecution case stands completely toppled and renders the entire prosecution case flimsy and without any legs.

While placing evidence of PW-1, appellants' counsel has stressed on the admission of witness that story of demand of Rs.40,000/- was not given out at the time when Investigating Officer interrogated him. He has admitted that there was no dowry fixed at the time of marriage. He has admitted and accepted that there was no demand directly or through mediator whatsoever. No letter was written by appellants or any of their family members making demand of dowry. However in the next breath, he contradicted his own statement that Barat had not gone back satisfied and some demand was made by them at the time of marriage. While proving the letter Ext. 8 Ka-1, witness was confronted that there is no date mentioned and there is no assertion that deceased was subjected to cruelty for dowry. Only request by daughter of PW-1 (deceased) was that she wanted to go back to her father. While admitting the fact that relationship between appellants and witness was cordial, he has admitted that appellants had come to see his ailing wife in the hospital who died within one year of marriage. No names were mentioned in the application which was given to D.I.G. and when witness was questioned about it, he expressed his ignorance. He has denied suggestion that first information report was lodged on account of the fact that appellants refused to part with some money demanded by him. This witness has stated that his daughter was being taken care by husband and his family members in the medical college. All expenditures were borne by them though he denied defence suggestion that first information report was lodged after ten days when husband (appellant) asked father of 6 the deceased to share the medical expenses for her treatment which was not at all acceptable to the father of the deceased. This witness has further stated that he used to stay with his daughter from morning till night in the hospital and has tried to corroborate dying declaration which according to him was recorded by the Magistrate at 11:00 a.m. In the next breath, he states that he is not aware whether Magistrate recorded her statement or not. Statement was recorded in a closed room but he has clearly admitted that there was no other person present at the relevant time when dying declaration was being recorded. He also expressed his ignorance about disclosures made by the deceased. He further states that he had not seen himself where her dying declaration was recorded. He gave statement relating to the dying declaration only on the basis of what people informed him.

Shiv Dayal Rai PW-2 is son-in-law of Daya Ram Rai PW-

1. He resides in the same village where appellants reside. He has stated in his examination in chief that appellants (accused) had taken Gunjana Rai to Primary Health Centre Gauri Bazar after she received burn injuries. Doctor referred her to Medical College Gorakhpur. Appellant Akhilesh Rai had got her admitted at Gorakhpur. Daya Ram Rai PW-1 reached medical college later but at the time when the deceased was admitted in injured condition, PW-1 was not present. PW-2 has stated that statement of the deceased was recorded by Sub-Inspector Gauri Bazar. However, he has expressed his ignorance about any dispute regarding dowry at the time of wedding. This witness clearly corroborates that deceased Gunjana Rai was being treated in the medical college at the expense of the accused. They left the hospital approximately after ten days, only when the first information report was lodged by father of Gunjana Rai. He also admits that after arrival of Daya Ram Rai PW-1, relationship between appellant and father of the deceased was very cordial 7 initially. The two families were sharing good relationship and there was no allegation whatsoever regarding the incident. He admits that deceased never made any complaint against her in- laws whenever this witness visited appellants' house, they gave sufficient respect and treated him well. He has clearly stated that he is not aware how and when Gunjana Rai was burnt. He admits that PW-1 had attended wedding of daughter of appellant Lal Baboo Rai which was performed in the same year when the unfortunate incident took place. PW-1 had come in the wedding and he was very happy with the behaviour of his relatives (accused). This witness was emphatic in his assertion that family members of Gunjana Rai had gone back after wedding of daughter of accused Lal Baboo Rai. They were satisfied and happy. This witness has further stated that father of Gunjana Rai used to get annoyed when accused asked for some money for her treatment in the medical college. He has also confirmed suggestion of the defence that Gunjana was very young at the time of her death. She was not able to take care of house hold affairs and cook food properly.

Dhruv Kumar Rai PW-3 is another son-in-law of PW-1 who has tried to support the prosecution story. In his cross examination, he admits that one of the daughters of PW-1 is married to him. No dowry was given to him. He did not go to the medical college or tried to speak to his sister-in-law when she was injured. He admits that he went back home from Gauri Bazar Primary Health Centre and slept soundly. He came to know that Gunjana was sent to medical college only on the next morning. This witness has, however, stated that treatment of the deceased was made at the expense of Sunita sister and Shiv Dayal brother- in-law of the deceased PW-2.

Argument of appellants' counsel is that this witness arrived on third day whereas PW-1 and PW-2 have stated that treatment 8 was at the expense of appellants, therefore, learned counsel states that no reliance can be placed on his statement. He also admits that when he went for second time, Gunjana Rai was getting better but after first information report was lodged by PW-1, appellants removed themselves from the hospital and her condition deteriorated. PW-3 further admits that his father-in-law (PW-1) informed him that because accused were not giving his daughter proper medical assistance, therefore, he had no other option but to lodge first information report against appellants. However, he has completely demolished his own statement by saying that it is possible that he might have forgotten what the deceased told him.

Counsel appearing on behalf of defence states that in view of doubt expressed by this witness, no reliance can be placed on him. His testimony is liable to be completely ignored.

Dhananjai Rai PW-4 is also another son-in-law of PW-1 who has tried to elaborate actual happening on the date of incident and also the fact that the deceased shared a bad relation with her in-laws. She was subjected to mental as well as physical cruelty for non-fulfilment of demand of dowry and on the date of occurrence, a hot discussion was going on since morning of 21.7.1998. The deceased prepared tea at 3:00 - 4:00 p.m. and the father-in-law threatened her with dire consequences in the event of non fulfilment of demand of dowry.

This witness admits in his cross examination that he is not aware who had set the deceased ablaze. He also disputes that any letter was written to her father making demand of Rs.40,000/- but in the next breath he states that once a letter was written by the deceased on the direction of her father-in-law. This witness has stated that mother-in-law poured kerosene on her which was objected by her, and sister-in-law Vanadana @ Babita had lighted match stick. He is also a witness of inquest. He further states that 9 no dowry was fixed in his marriage, who is married to one of the sisters of the deceased. He states that Rs.10,000/- was fixed in the wedding of PW-3 who is also husband of sister of Gunjana Rai. Deceased Gunjana Rai was the last one to get married and marriage was performed after superannuation of PW-1 (father). However, it is also stated that maximum amount of dowry was fixed in the marriage of Gunjana Rai, who was good looking and received education till class 8th. This witness has admitted that her in-laws were very happy with her behaviour and for the first time disclosed in his statement that expenditure in the treatment of the deceased was borne by PW-1. First Information Report was lodged after he arrived at the medical college. He states that appellants Lal Baboo Rai and Akhilesh Rai were present all along and there used to be heated discussion on account of treatment of the deceased. 'SAMDHIS' used to indulge in long verbal altercation for the payment of medicines etc. PW-4 asserts that the fact about demand of dowry to a tune of Rs.40,000/- came to his knowledge for the first time in the hospital. He also came to know about harassment of the deceased subsequent to the incident. When witness was questioned about the letter, he was unable to disclose the date but he clearly stated that letter was written on ruled paper and not on an inland letter. The said letter consists of two pages. The letter of two pages was shown to him during cross examination. Matter of the said letter was read out to him, only words mentioned in the letter was "Lain-Dain" but nothing about the actual amount or demand of motorcycle.

Sri A.N. Tripathi Advocate while castigating statement of this witness has drawn our attention to the contradictory version given by witnesses examined earlier especially to the effect that expenses for the treatment of Gunjana Rai was being incurred by in-laws and it was only after about 8-9 days, father-in-law started insisting that PW-1 should also share financial burden for her 10 treatment, therefore, statement of PW-4, according to appellants' counsel cannot be relied upon if read with statement of other witnesses.

Ram Moham Ram C.O. City was examined as PW-5. He has stated that first information report was lodged on 31.7.1998 at Police Station Gauri Bazar, District Deoria. Investigation was carried out by Sub Inspector Ram Prasad Nishad till 21.8.1998. After death of Gunjana Rai, investigation was taken over by PW-

5. He had interrogated witnesses afresh after taking over investigation subsequent to death of Gunjana Rai on 12.8.1998. Investigation was handed over on 21.8.1998 when case was altered to one under Section 304-B I.P.C. vide G.D. No.29 Time 19:30 hours. Investigating Officer has admitted that dying declaration recorded by Tehsildar was not in the case diary. PW-5 made several attempts to obtain dying declaration. Nayab Tehsildar Shri Chand Dubey, Tehsil Chauri Chaura, and Tehsildar Sri Ram Ji Chaubey Tehsil Gorakhpur were examined by the second Investigating Officer on 10.12.1998 on the next day i.e. 11.12.1998. Dying declaration recorded by theses persons was copied by PW-5 only after interrogating theses two persons. He has admitted that prior to 22.8.1998, he had not examined any of the witness. Spot inspection was made by previous Investigating Officer Ram Prasad Nishad who prepared site plan. He has stated that Sunita Rai was present on the spot and got the site inspected and the site plan was prepared but this fact is not mentioned in the case diary. He further states that since spot inspection was made by previous Investigating Officer, therefore, no such fact was recorded by PW-5 as well. This witness clearly states that he had obtained only a carbon copy of dying declaration on 11.12.1998 and these details are reduced in writing in the case diary but he was unable to disclose whether any endorsement was made in G.D. or not. He further submits that 11 PW-1 Daya Ram Rai has disclosed to PW-5 that at the time when dying declaration was recorded, the deceased was in her full sense.

Suggestion made by defence is that second Investigating Officer did not record statement of witnesses himself but only copied from case diary prepared by previous Investigating Officer. It was also suggested to him that he did not make any investigation and no offence was made out but he somehow concocted the entire story, nonetheless the witness denied it.

Constable 408 Girish Chand Pathak PW-6 was examined to prove G.D. No.19 Time 12:35 Hours, dated 31.7.1998. However, he did not bring original G.D. but proved Ext. Ka-5 from photostat copy. He was questioned why carbon copy contains words, 'report no.19' in ink. Explanation given is that since carbon copy was not decipherable, therefore, it was written by ink.

Dr. O.N. Gupta PW-7 was examined to prove autopsy report. He has detailed the injuries received by the victim already mentioned above. He was also cross examined firstly on the question whether all the papers were received by him along with dead body, which he was unable to reply conclusively. He has clearly stated that she died on account of septicaemia which was caused by pus present in the injuries, therefore, he was unable to specify percentage of burn. 'Septicaemia' is a necessary result in burn cases if the patient is not given proper precaution and care; formation of pus is a result of infection due to improper treatment. He also admits save yellow colour of spleen and kidney, no other abnormality was detected at the time of post mortem. The doctor, however denied suggestion that no papers were received with dead body.

Retired S.I. Ram Prasad Nishad PW-8 was examined who had taken over investigation of the case initially registered under 12 Sections 498-A, 307 I.P.C. read with Section 3/4 Dowry Prohibition Act. He has deposed that he searched the accused on 1.8.1998 and he examined witnesses Shiv Dayal, Smt. Sunita and Satish Rai. On their pointing out, he prepared site plan etc. He was extensively cross examined. He has admitted that he did not visit village Kataura in the intervening period of 21.7.1998 till 1.8.1998. Neither Chaukidar nor any other constable or villagers were questioned regarding details about the incident. He took charge of investigation on 31.7.1998 at 1:00 p.m., thereafter he proceeded to the place of incident but his Ravangi is neither mentioned in the case diary nor he was able to disclose time of arrival at the place of incident where he found the doors open. He did not find the accused but people who were present there intimated him that accused had gone to Gorakhpur for treatment of Gunjana Rai. He further states that he arrived at Gorakhpur medical college on 1.8.1998 but again neither time nor date was mentioned in the case diary. He admits to have gone to see Gunjana Rai in the medical college. He further admits that he had not taken permission or certificate from the doctor for recording her dying declaration. He did not try to locate any doctor or nurse in the hospital. He states that when he reached medical college, Gunjana Rai was in a precarious condition. Few female family members from her father's side (Maika), were present with her. Daya Ram Rai was sitting out in the Verandah. He states that he tried to locate the Magistrate at many places and finally he reported to Tehsildar Gorakhpur. He was not aware how and when Tehsildar recorded dying declaration. When this witness was cross examined, he explained the word "Gambhir Halat" and elucidated that he meant that the patient was neither able to speak nor she was able to get up. She was in a semi conscious state. He further submits that he had not recorded statement under Section 161 Cr.P.C. of PW-1 Daya Ram Rai. He was unable to disclose 13 the time when he reached Gorakhpur medical college on 1.8.1998. No time is mentioned in the case diary. He could not give any reason why no investigation or enquiry was conducted in the intervening period from 16.8.1998 till the investigation was taken over by C.O., he admits that he did not try to find out who got the deceased admitted in Gorakhpur medical college.

Naib Tehsildar Kamaruddin PW-9, Constable 728 Nizamuddin PW-10, D.K. Srivastava PW-11 are formal witnesses.

Subhash Chand Dubey PW-12 is retired Naib Tehsildar who recorded dying declaration and tried to prove it by stating that Gunjana Rai was physically fit and conscious to give her statement and he had noted her dying declaration verbatim. He got endorsed her left thumb impression because her right thumb was burnt. He further states that Investigating Officer recorded his statement and questioned him about dying declaration. This witness asserts in his cross examination that he had recorded dying declaration on oral direction of Tehsildar. No written order was given to him. He was working as Naib Tehsildar at that point of time. He admits that post of Naib Tehsildar is not equivalent to the post of Magistrate. Naib Tehsildar is only entitled to discharge such duties which are specifically delegated to him. He was not able to disclose from his memory that there was any piece of paper authorizing him to record dying declaration. He admits that father of Gunjana Rai was present at the time when he recorded dying declaration who identified her. He had carried a plain piece of paper along with him. He was unable to say that any nurse or doctor was present in the burn ward or not at the relevant time. He had not secured any medical report or certificate regarding her mental condition before recording dying declaration since he was able to assess her physical condition himself. He has not recorded dying declaration in question-

answer form because he was not aware about it. He further states that this was the first time he was asked to record a dying declaration, therefore, whatsoever she stated, the witness transcribed himself. He again asserts that all this exercise was carried out on oral orders. He administered her oath before recording statement because he has seen in Tehsil that witnesses are required to give their statement after administration of oath. He kept the dying declaration in his pocket and thereafter handed it over to Tehsildar. He has, however denied suggestion that Gunjana Rai was not in a normal condition and mentally fit to give her statement, he also refused the suggestion that Ex. Ka-13 dying declaration is not the actual dying declaration given by the deceased and it is manipulated document.

On the basis of evidence of these formal witnesses, appellants' counsel has depreciated verdict of conviction. He stressed that investigation was tainted, dying declaration and testimony of such police officer, is manipulated, manoeuvred and fabricated who have no knowledge about process of investigation and various provisions of police regulation as well as Criminal Procedure Code. The entire investigation is based on complete concoction and imagination.

Appellants' counsel has placed reliance on a number of decisions to discard prosecution story and emphatically submitted that bare perusal of testimony of witnesses, it is evident that there was no demand of dowry whatsoever. On own admission of prosecution witnesses, first information report was registered only to vindicate demand made by appellants to share the medical expenditure which was not at all acceptable to father of the deceased. He has also summarised his argument that at least three sons-in-law of PW-1 have admitted that deceased were twelve sisters and no dowry was given in marriage of any of them. Father of the deceased was in no position to give dowry since 15 deceased was the last daughter and PW-1 had already retired at the time of her wedding. Besides, there is no evidence to substantiate that there was any demand made by appellants soon before the incident.

While laying emphasise on conduct of appellants, who had taken Gunjana Rai to Primary Health Centre Gauri Bazar, thereafter to medical college, coupled with the fact that they were present and taking care of the injured till father of the deceased gave an application before D.I.G. and consequent lodging of first information report, only to pressurise and extract money from appellants. Submission is that they have successfully substantiated that it is not a case of dowry death but it is accidental. The accused discharged their onus and no presumption could be drawn against them. It was for this reason, family members of the deceased did not raise any hue and cry for almost 10 days. When the appellants were attending Gunjana Rai and spending money, no finger was pointed out at them. On the basis of all these facts and circumstances highlighted by counsel for defence, he has argued that judgment of conviction is liable to be set at naught.

We have heard appellants' counsel at length and gone through the testimony of the witnesses and examined all documentary evidence.

The undisputed fact is that incident took place on 21.7.1998 but the deceased was taken to Primary Health Centre Gauri Bazar thereafter she was admitted in the medical college by husband Akhilesh Rai and that in-laws were all along attending the injured in medical college and making expenditure till father Daya Ram Rai decided to lodge first information report against appellants. In the circumstances, we have noticed the immediate conduct of appellants that there was no attempt to escape even after family members of daughter-in-law had arrived. They were 16 continuously attending the patient and overall reading of testimony of witnesses father, sister and brothers-in-law, they had no grievance against appellants. Dispute arose only when PW-1 was asked to share medical expenditure, which led to lodging of the first information report. We have also noticed that Police Chauki was just opposite the burn ward, family members of Gunjana Rai were present in the hospital all along but nothing was done till 31.7.1998.

First informant has unequivocally admitted in his cross examination that actual report written in his hand writing was torn off after it was typed by the typist who had legal knowledge and lacuna and gaps in the report was properly plugged. Report was proved, was one which was typed by typist and not one which PW-1 had written out in his own hand writing. The very foundation of the prosecution case, even though PW-1 has proved it becomes a feeble piece of evidence as it is not his original version but on the dictate of another person. This is a case of dowry death, therefore, when there is an allegation that there was demand of dowry, victim was subjected to cruelty and she died an unnatural death within seven years of marriage, presumption is drawn against accused and onus is shifted on them to prove their innocence.

In the instant case, the deceased met an unnatural death within seven years of her marriage but demand of dowry and the fact that she was subjected to cruelty on account of non- fulfilment of demand, is not substantiated at the very outset by evidence of prosecution witnesses themselves. For the first time, story of demand of Rs.40,000/- was given out during the trial. Besides, admission that no dowry was fixed at the time of wedding, there is not even a whisper in the first information report or statement under Section 161 Cr.P.C. about demand of Suzuki motorcycle. Evidence is completely lacking to 17 substantiate that Gunjana Rai was ever subjected to cruelty on account of non-fulfilment of payment of dowry much less soon before the incident, on the contrary it has been disclosed by witnesses that daughter of accused Lal Baboo Rai got married sometimes before the incident. PW-1 had attended the wedding and he had gone back happy and satisfied. Not a single incident is narrated in his testimony that there was any harassment meted out to Gunjana Rai by her in-laws for dowry. Testimony of PW-1 alone negates the entire theory of demand of dowry. We, therefore, come to a conclusion that story of demand of dowry is an afterthought only because father-in-law and husband were unable to meet out expenses at the medical college and asked father PW-1 Daya Ram Rai for some funds after more than a week. This fact also stands substantiated as pointed out by appellants' counsel that case sheet of Ward No.5-W, Bed No. OPD 14 is mentioned and death of Gunjana Rai is noted on 11.8.1998 at 7:45 p.m. where case history of patient is detailed, it is written "patient is not able to give history. History is taken by patient's husband." Evidently, the husband was all along on the bed side of his wife. Undoubtedly, it is a dispute regarding demand of financial help for treatment of Gunjana Rai, which culminated in lodging of the first information report and it is at that point of time, appellants left her in the hospital and her condition started deteriorating since proper care was not given to her. This fact is admitted by doctor that in burn case, if proper medical care is not given, pus starts accumulating in the wounds, which results in septic. Cause of death of Gunjana Rai is septicaemia.

Dying declaration on which prosecution has stressed heavily is again far from reliable. Firstly, there is no medical certificate regarding condition of the deceased, despite the fact dying declaration was recorded in the hospital. There is no 18 shortage of doctors especially in burn ward where serious cases are admitted. Dying declaration was not recorded by Magistrate. Naib Tehsildar has no authorization whatsoever. Besides, dying declaration has not been mentioned in the case diary, on the contrary it was either with Tehsildar or Naib Tehsildar till month of December, 1998. Additional circumstances are that father PW- 1 states that he is unable to disclose that when and what place dying declaration was recorded whereas Naib Tehsildar states that father was present at the time of recording of the dying declaration, who identified his daughter. Besides, we have seen various Parchas but till 4.12.1998, the dying declaration could not be handed over to the Investigating Officer. In Parcha No.S.C.D. 3 dated 10.12.1998, statement of S.C. Dubey was recorded and he has stated that he will search for dying declaration and hand it over.

Argument of appellants' counsel that investigation is a complete sham and statements of witnesses have been recorded on imagination, are not without substance. No doubt, verdict of acquittal cannot be given only on the basis of lacuna in the investigation but this is a case where witnesses have also not been able to substantiate allegation, not even the fact regarding demand of dowry or deceased having been subjected to cruelty, therefore, we are of the considered view that essential ingredient to establish the offence is completely missing.

In the case of Hira Lal and others Vs. State (Govt. of NCT) Delhi (2003) 8 SCC page 80, Hon'ble Apex Court, has ruled that there must be existence of proximity and live link between the effect of cruelty based on dowry demand and death, conviction was set aside. Similarly, in the case of State of Rajasthan Vs. Teg Bahadur and others (2004) 13 SCC page 300, Hon'ble Apex Court held that reading of judgment of the trial court evidently shows that learned Sessions Judge proceeded as if prosecution is 19 available against the accused merely because allegation of death within seven years of marriage was made without even prosecution having proved the required preliminary fact. For proving the offence under Section 304-B I.P.C., prosecution has to prove the following ingredients:-

"(i) The death of the married woman was within seven years of the marriage.

(ii) A little prior to death, her husband or relative, on the point of demand of dowry subjected her to cruelty or harassed her."

Only after the basic character is established, the onus shifts on the accused.

Hon'ble Apex Court in the case of State of U.P. Vs. M.K. Anthony 1985 (22) A.C.C. (SC) page 50, held that while appreciating evidence of witnesses, the approach must be whether evidence of witnesses read as a whole appears to have a ring of truth. In the instant case, testimony of PW-1 is not dependable. We are not at all inclined to confirm conviction on the basis of his evidence.

In the cases of Mungeshwar Prasad Chaurasia and another Vs. State of Bihar (2002) 10 SCC page 163 and Sakharam and another Vs. State of Maharashtra (2003) 12 SCC page 368, Hon'ble Apex Court set aside conviction under Section 304-B I.P.C. and held that there is a tendency of roping all relation of in- laws of the deceased in a matter where unnatural death took place within short span of marriage.

In the circumstances, we have observed all decisions relied upon by appellants' counsel. Hon'ble Apex Court has cautioned that for holding conviction under Section 304-B I.P.C., certain preliminary and necessary aspects have to be substantiated before onus is shifted to draw a presumption against the accused and fix the guilt.

We have already discussed and closely scrutinized the evidence, and arrived at a conclusion that Gunjana Rai was not subjected to cruelty soon before death for non fulfilment of certain demand of dowry. First and foremost, family members have not been able to substantiate the demand of dowry, on the contrary witnesses have stated that Gunjana Rai had eleven sisters. All of them got married and no dowry was fixed. Three sons-in-law were examined who have categorically stated that they were not given any dowry, therefore, it was necessary to corroborate allegation of demand of dowry. Suggestion by the prosecution is half hearted without any corroborative piece of evidence. Letter alleged to have been written by Gunjana Rai is again not substantiated. Besides, there is not an iota of evidence that Gunjana Rai was ever subjected to cruelty or harassment, not a single witness has stated or substantiated this fact.

Heavy reliance is placed by prosecution on the dying declaration. We have already enumerated in the earlier part of the judgment that dying declaration is far from reliable for a number of reasons. Dying declaration suffers from various infirmities. It is not part of the case diary, without any certificate of the doctor that she was in fit state of mind to give her dying declaration. Besides, admission of Naib Tehsildar is that brother-in-law and father were present all along at the time when dying declaration was recorded. We have analysed the dying declaration from every angle, but it is difficult to believe that the deceased was even conscious at the time of recording of dying declaration. This document does not inspire confidence, therefore, we are of the view that it is not at all to safe depend upon the said document, which is laced with concoction, fabrication and is a piece of paper, kept lying in the pocket of Naib Tehsildar or Tehsildar for a month together.

Learned A.G.A. appearing on behalf of the State has 21 submitted that it is not always essential to obtain certificate of the doctor. It is only rule of caution. He has placed reliance on a decision of Hon'ble Apex Court in the case of Sher Singh and another Vs. State of Punjab AIR 2008 SC page 1426.

We have perused the said decision. Dying declaration was recorded by the Magistrate. Only shortcoming was that certificate of the doctor was not there. Hon'ble Apex Court was of the view that person recording dying declaration must be satisfied that the deceased is in a fit condition to give her statement. Facts of the present case are absolutely different. Dying declaration was recorded in the hospital in emergency ward where there is no shortage of doctors. Besides, dying declaration does not form part of the case diary. Dying declaration was copied out in the case diary only in the month of December, 1998 i.e. almost six months after the incident. Person who recorded statement of the deceased was not Magistrate. He could not show any authorization for recording statement. He came to the hospital only on oral direction which is not substantiated. Besides, he clearly states that he did not know procedure of recording the dying declaration. This was the first instance when he recorded statement of a dying person. He has further admitted that he kept dying declaration in his pocket and after two days, handed it over to Tehsildar. Investigating Officer has written in the case diary that despite best effort, dying declaration could not be obtained. In these circumstances, we feel that there is no applicability of the decision relied upon by learned A.G.A. Therefore, we have no option but to discard evidence of dying declaration.

In the circumstances, overall assessment of evidence, we are of the view that conviction is based on no evidence and is liable to be quashed. Judgment of learned Additional Sessions Judge convicting appellants for offences under Sections 304-B, 498-A I.P.C. and 4 Dowry Prohibition Act, is not at all proved.

Demand of dowry itself is not established. Prosecution has failed to substantiate its case by means of cogent, valid testimony of witnesses and documentary evidence. Judgment and order of conviction dated 9.10.2006 passed by Additional Sessions Judge, court no.16, Deoria, is quashed. The instant appeals are allowed. The appellants shall be set at liberty forthwith.

Let a copy of this judgment along with lower court record be sent to the learned Sessions Judge, Deoria, for compliance. Dt. 23.7.2010 rkg

Unlock Advanced Research with PRISMAI

Allahabad High Court