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7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing vehemently that dying declaration is a substantial piece of evidence and there is no provision that no reliance can be placed on the dying declaration in the absence of any corroboration. It was contended that since deceased in her second dying declaration had categorically deposed that accused persons had killed her by pouring kerosene oil, there is no reason to disbelieve the same. It was further contended that deceased had given a just and reasonable explanation about her previous dying declaration by stating that she had made the said statement under the influence of her husband as he had threatened her that he would kill her daughter.

(i) Learned Additional Public Prosecutor further contended that though PW1 and PW2 turned hostile on some material points, but during their cross-examination they categorically deposed that deceased had told them that accused persons used to make a demand of motor cycle in State Vs. Sunil @ Guddu & others dowry and they also used to harass and torture her. They also deposed that deceased told them that accused persons set her on fire. It was further contended that mere fact PW1 and PW2 turned hostile on some points is not sufficient to discard their testimony as a whole. It was further contended that since PW1 and PW2 corroborated the second dying declaration, thus there is no reason to disbelieve the dying declaration.

State Vs. Sunil @ Guddu & others

(i) PW2 in his examination-in-chief deposed that my daughter did not tell him that Sunil asked her to pay ` 5.00 lac and to give divorce. He further deposed that deceased had not told these fact to him even in the hospital. Thus, the testimony of PW2 is not helpful to the prosecution in any manner.

37. In the light of above discussion, I am of the view that prosecution has failed to connect the alleged phone call with the accused. Even in this regard the second dying declaration of the deceased is also relevant wherein she stated that during the last three months she tried to call her husband to her parents' house several times but he neglected her and due to that reason she became angry and went to her matrimonial house to meet her husband but he again ignored her, consequently, she committed suicide. This shows that Shivani had committed suicide due to the dispute between husband and wife but her parents attempted to give a colour to the incident of dowry death. This appears more plausible as PW2 also admitted in his cross-examination that deceased was a short tempered girl.

(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

(4) Such cruelty or harassment was soon before her death.

(Relied on AIR 2009 SUPREME COURT 1454 "Tarsem Singh v. State of Punjab")

40. As already discussed that prosecution has failed to establish that deceased was subjected to cruelty or harassment in connection with the demand of dowry. Even prosecution has failed to establish that accused Sunil had ever demanded motor cycle in dowry either at the time of marriage or thereafter. Rather, it is admitted case of prosecution that accused Sunil had a motor cycle prior to his marriage. It is also admitted case of prosecution that deceased was residing for the last more than two State Vs. Sunil @ Guddu & others months at her parents house and she all of sudden reached her matrimonial house in the evening on October 12, 2011 and committed suicide. As per her second dying declaration she returned to her matrimonial house as her husband did not visit her parents' house despite her repeated calls and when she of own reached her matrimonial house, he again ignored her and due to that reason she became angry and in indignation she committed suicide at the Chowk by pouring kerosene oil and her mother-in-law and husband tried to save her by extinguishing flames by pouring water upon her. In these circumstances, I am of the considered opinion that prosecution has failed to fulfil the requisite conditions to raise presumption against the accused Sunil with the aid of Section 113B of Evidence Act.