Shiv Shankar Gupta vs State Of U.P.
2011 Latest Caselaw 5369 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgement Reserved.
 
Criminal Appeal No. 974 of 2009
 
Shiv Shankar Gupta Vs. State of U.P.
 
Connected with
 
Criminal Appeal No. 4508 of 2004
 
Pramod Kumar Gupta Vs. State of U.P.
 

 
Hon. Imtiyaz Murtaza, J.

Hon. Mrs. Jayashree Tiwari, J.

(Delivered by Hon. Mrs. Jayashree Tiwari, J.)

Both criminal appeals have been filed against the judgement and order dated 25th August, 2004 whereby the accused Shiv Shankar Gupta has been sentenced to three years R.I. and fine of Rs. 5000/- under Section 498-A I.P.C. and he has been further sentenced to two years R.I. and fine of Rs. 5000/- under Section 3/4 Dowry Prohibition Act and he has been directed to undergo 14 years imprisonment under Section 304-B I,P.C. and in default of payment of fine in all sections, he has further directed to undergo simple imprisonment for six months.

Secondly, the accused Pramod Kumar Gupta has been convicted under Section 498-A I.P.C. to three years rigorous imprisonment and a fine amounting to Rs. 5000/- and two years rigorous imprisonment and a fine amounting to Rs. 5000/- under Section 3/4 Dowry Prohibition Act and in default of payment of fine, he has further sentenced to six months simple imprisonment in both the sections by the Sessions Judge.

Briefly stating the contention of the prosecution is that Sunil Kumar Gupta S/o of Brahmanand Gupta, resident of Arya Nagar, P.S. Etah lodged a written report dated 22nd March, 2001. According to the version of the F.I.R., the sister of Sunil Kumar Gupta, Smt. Mamta Gupta was married with accused Shiv Shankar Gupta S/o of Mahesh Chandra Gupta, resident of Uttam Nagar, Sishram Park, Delhi four months before the incident. In marriage approximately, Rs. 5 lakhs were spent. The accused Shiv Shankar as well as his elder brother Pramod Kumar Gupta were demanding Rs. 2 lakhs more and hence to torture his sister Mamta. On 22nd March, 2001, Sunil the informant received a phone call of his brother-in-law Shiv Shankar that he is coming at night and money should be arranged. At 12:00 p.m. the accused Shiv Shankar and Rajesh came to the house of Sunil the informant, situated behind the petrol pump in front of the bus stand which is Sarawal House. It was stated that Shiv Shankar wants to have some talk with his sister Mamta and Shiv Shankar took away his sister Mamta in another room where Shiv Shankar with intention to kill Mamta threw some liquid substance on her person as a result of which she started burning. Accused Shiv Shankar and Rajesh came out from the said room and fled away. The room started burning and Mamta was also burnt. In order to save Mamta, her father Brahmanand Gupta also received burn injuries. The resident of nearby came and put off the F.I.R.

On the aforesaid written F.I.R. Ext.Ka-1, the information was registered under Crime no. 194 of 2001, under Sections 307, 498-A I.P.C. and 3/4 D.P. Act. The investigation proceeded on the basis of the aforesaid F.I.R. The G.D. report was also prepared. The victim Mamta was taken District Hospital Etah. Ext. Ka-3 Bed Head Ticket clearly shows that Mamta, daughter of Brahmanand Gupta was admitted at District Hospital, Etah at 1:00 a.m. and the information was sent to Police but no medico-legal was done, only preliminary treatment was given to Mamta. The information was sent to Police by Ext. Ka-8 which indicated that as a result of burning, Mamta had been brought to Hospital in serious condition and it was requested that some Magistrate be arranged for recording the dying declaration.

Ext.Ka-10 and 21 are the certificates for mental condition for dying declaration of Mamta. Ext.Ka- 21 is the dying declaration which was recorded in District Hospital Etah. Ext.Ka -10 is the certificate of doctor regarding condition of victim Mamta for giving the statement i.e. the dying declaration which shows that while giving the statement, the victim Mamta was in full senses and was also in a position to give her statement and after recording the statement Ext.Ka- 21, it was certified that during that period the statement was recorded, the victim remained in senses. This certificate has been given by doctor at 2:10 a.m. and the certificate in respect of victim in a condition to give the statement and having full senses to give the statement was given at 1:50 a.m.

Ext.Ka-3 shows that the victim was referred to Medical College, Agra on account of her serious condition, where she was medically examined and treated at 5:00 a.m. on 22nd March, 2001 by doctor and doctor found that 50% of the body of Mamta was having burnt and skin was removed from at places in a large area. On 3rd April, 2001, the information regarding the death of Mamta was received at P.S. Hariparvat, Agra. Ext.Ka 19 is the G.D. report regarding the same.

The Investigating Officer approached the place of incident and had taken the burnt blanket on 22nd March, 2001. Ext.Ka-12 and 13 are the fard regarding taking possession of half burnt clothes and hairs. The Panchayatnama Ext.Ka-16 dated 3rd April, 2001 was prepared by the Police, P.S. Hariparvat, Agra. Paper No.13, Ext. Ka-18 was prepared and letter R.I. Ext.Ka- 20, the dead body of Mamta was sent for post-mortem examination. Ext.Ka-21 is letter of C.M.O. for conducting the post-mortem examination. Ext. Ka-12 photo-nash was prepared on the said date. Post mortem examination conducted by Dr. R.K. Yadav, C.M.O. District Hospital, Agra which is Ext. Ka-7 on record. Doctor has mentioned that death was caused due to ante-mortem injuries and septicaemia as a result of which the case was converted under Sections 304-B, 498-A I.P.C. along with 3/4 D.P. Act. Accordingly, a charge sheet was submitted in the Court of Chief Judicial Magistrate, Etah. The Chief Judicial Magistrate after taking cognizance on the charge sheet, summoned the accused persons committed the case to court of Sessions and the case was triable exclusively by the Sessions Court. The concerned Sessions Court after hearing framed charges against the accused Shiv Shankar and read over the same to the accused persons. The accused persons denied the charges levelled against them and claimed to be tried. Hence the trial proceeded.

On 1st March, 2001, the case was transferred in the Court of Additional Sessions Judge, F.T.C.-5 Etah who proceeded with the trial. The prosecution examined in all nine witnesses, PW-1 Sunil Kumar, PW-2 Brahmanand Gupta, PW-3 Natthi Singh, C.M.O. District Hospital, Etah, PW-4 Constable Ramvir Singh, PW-5 Dr. R.K. Yadav, M.O.P.D., PW-6 Dr. Narendra Babu Katiyar, Radiologist, PW-7 Kiran Vir Singh, S.S.I. P.S. F.I.R.ozabad, PW.8 Dr. Sunahari Lal, Radiologist, PW-9 Digamber Kushwaha, C.O.

Thereafter, C.W.1 Panna Lal, A.R.K., Tehsil Sadar, Etah who was the reader of the Court of B.R. Puskar, Nayab Tehsildar who recorded the dying declaration dated 22nd March, 2001 was summoned by the Court and his statement was recorded. After recording the entire prosecution evidence, the evidence was closed and the statements under section 313 Cr.P.C. were recorded in which the accused persons admitted the marriage of Mamta and Shiv Shankar of 9th November, 2001 and denied the expenditure of Rs. 5 lakhs at the time of marriage by Mamta's father Sri Brahmanand Gupta and they have also denied further the contention of Mamta informing about the demand of Rs. 2 lakhs for opening the Computer Centre because Shiv Shankar was no more in service. They have also denied that on the alleged date of incident, Shiv Shankar had stated on telephone that he is coming and Rs. 2 lakhs be arranged for payment to him. They have also denied that Shiv Shankar came to the house of informant Sunil along with Rajesh and he was welcomed by informant' s family. He has also denied that at 11:00 p.m., the father of PW-1 Sunil called that let Mamta be sent on the ground-floor and on Mamta coming on the ground-floor, Shiv Shankar took her in another room for talking. At about 12:00 p.m. they heard the cries of Mamta when they came out from their respective rooms by down stairs, they saw that Mamta in burning condition came out of the room and fell down in the courtyard near the tap

All these contentions have been denied by the accused persons. They have denied that they fled away by opening the main door and Mamta was speaking at that time that Shiv Shankar was pressurizing for Rs. 2 lakhs to be given to him by her father and brother and on her refusing to do so, Shiv Shankar threw some liquid substance on her person which resulted in flaming on her person. The accused persons have also denied referring of Mamta in District Hospital, Etah and referring to Agra by the Officer In-charge Medical at Etah and regarding the contention of summoning the Magistrate by doctor, they have stated that they do not want to say anything. They stated that the F.I.R. was prepared an anti time and the statements are given to blackmail. He has stated in additional statement that he has not come to Etah on the said date. Regarding the statement of C.W.-1, he has stated that he does not want to say anything.

The learned Sessions Judge after hearing the argument of both the parties has come to the conclusion that the offence under Section 494 read with Section 4 of D.P. Act is proved against Pramod without reasonable doubt and the offence under Section 498-A and section 304-B I.P.C read with section 4 of D.P. Act has been proved beyond doubt against the accused Shiv Shanker.

So far as the accused Rajesh is concerned, learned lower court has held that the entire case is based on circumstantial evidence and the link chain of circumstance should be proved. Learned lower court has held that so far as accused Rajesh is concerned, the contention that he shut the main door and fled away has not been proved beyond reasonable and probable doubt and hence he has acquitted accused Rajesh from the offences as alleged. He has held that though accused Pramod was not involved in torture for dowry soon before death. But from the material evidence on record, it comes out that he has made a demand of additional amount of Rs. 2 lac and he has also said to the father of the deceased girl as well as informant for satisfying demand of Rs. 2 lakhs along with Shiv Shanker. Pramod has said that Rs. 2 lakhs will have to be paid whether willingly or unwillingly as P.W. 2 has stated in his statement. Hence learned lower court came to conclusion that accused Pramod also mentally tortured and sentenced him in offence under Section 498-A I.P.C. and section 4 of D.P. Act for rigorous imprisonment for a period of three years and fine of Rs. 5000/-, under Section 498-A and under Section 4 D.P. Act two years rigorous imprisonment and fine of Rs. 5000/- and has directed that in default of payment of fine under both offence, he shall undergo further simple imprisonment for six months. All the sentences shall run concurrently. Accused Shiv Shanker has been sentenced to three rigorous imprisonment and fine of Rs. 5000/- under section 498-A I.P.C. and section 4 D.P. Act and to 14 years rigorous imprisonment for offence under Section 304-B I.P.C. And further in default of the payment of fine, simple imprisonment for six months more.

Against this judgement of the Sessions Court, accused Pramod and Shiv Shanker has preferred the present appeal in which they challenged the judgement and order passed by the Sessions Judge.

The main grounds on which the judgement has been challenged are that the judgement and order of the court is bad in law in the facts and circumstances of the present case. That prosecution has failed to prove its case beyond reasonable doubt against the appellant. That there is no evidence on record that appellant even made any demand from informant and his sister because there are material contradictions and in circumstance in the statement of the witnesses and lastly that the appellant is in jail since 4.4.2001 on the basis of the said appeal, the matter was heard by our Division Bench.

The main points which have been vehemently argued during the course of hearing of appeal are as follows :

The first point which has been challenged by the learned counsel for the appellant is that the Sessions Judge has erred in holding that there was in-ordinate delay in lodging of the F.I.R. and also certain details regarding the fact of going for a walk by accused appellant Shiv Shankar and Rajesh Gupta are not mentioned in the F.I.R.

It is argued by learned counsel for the accused appellant that in fact the F.I.R. was lodged at ante time. In this connection I have gone through the judgement delivered by the learned Sessions Judge at page 11, where learned Sessions Judge has in detail discussed the arguments of the learned counsel for the accused appellant and the learned counsel for the prosecution and had also after perusing the record, came to the conclusion that the incident had taken place at 12:00 p.m. at night.

According to the Ext. Ka-5, the report was lodged at 2:00 a.m. on 22nd March, 2001 and the time and date was recorded as 22nd March, 2001 at 12:00 p.m. The chik report was prepared on the basis of written report given by the informant Sunil which is Ext. Ka-8. It is clear that the information regarding the sustained of burn injuries and also regarding the serious injuries of burn of victim Mamta was sent by Medical Officer, District Hospital Etah to the Police Station with intention that since the injured is in a serious condition as a result of burn injuries, proper arrangement for recording of dying declaration by a Magistrate should be promptly made.

Ext. Ka -3 is a Bed Head Ticket of victim Mamta dated 22nd March, 2001 at 1:00 a.m. which clearly shows that she was admitted in District Hospital Etah at 1:00 a.m. and hence the information was sent to the police station after getting Mamta admitted in Hospital. But the Station Officer has not taken heed of that information sent by District Hospital, Etah but had prepared the chik report and registered the case at 12:00 p.m. on the basis of written report given by informant Sunil and the case was lodged on the basis of information given by the Hospital.

Apparently, there appears to be no undue delay in lodging of the F.I.R. The date which has been mentioned as 22nd March, 2001 which is argued by learned counsel for the appellant clearly shows that it was due to inadvertence on the part of the Police.

On the other hand, it is also quite natural that it was the prime duty to give medical aid and assistance to the injured and only thereafter the information to the police, if given, there is nothing unnatural in it because to save the life of victim it was most urgent to admit her in hospital for proper treatment.

According to Ext.Ka-8, the name of the accused persons are not mentioned but the Station Officer has not acted with intention to cause any undue gain to the informant Sunil. Learned lower court came to the conclusion that sufficient explanation for delay in lodging of the F.I.R. has been given and it is not established that the report was lodged ante time.

It is also contended that since there was telephone available at the home but no information was given promptly. Learned Sessions Judge has held that in the peculiar circumstances prevalent at the time when the daughter/sister of the informant Sunil was burning and crying, the sole attention was centered to save her life. There is nothing unnatural in it.

Learned Lower Court has also held that G.D. recorded in plain paper does not create any adverse presumption about the genuineness of the incident. On the whole, the finding recorded by the learned Lower Court regarding delay in lodging of the F.I.R. are well reasoned and discussed and cannot held to be perverse.

The next point which has been raised by the learned counsel for the appellant is that much hammer has been made regarding the genuineness of dying declaration and also regarding the possibility and circumstances for recording of dying declaration at Etah Hospital. It is also emphasised that in fact the dying declaration was not recorded at Etah but at Agra Hospital.

Secondly, it is alleged that on account of demand of dowry by the accused and his family member, it is essential that the deceased must have been tortured physically or mentally by the accused persons soon before death.

In this regard it is argued by learned A.G.A. for the prosecution that admittedly the incident had taken place within 7 years of marriage. It is the admitted case of the parties that the marriage was solemnised just four months before the incident. It has also come in evidence that about Rs. 5 lakhs were spent in the marriage but the appellant Shiv Shankar and his brother Rajesh were demanding Rs. 2 lakhs more and used to harass informant's sister Mamta.

It has further come in evidence that on 22nd March, 2001, a phone call was received from his brother-in-law Sunil that he is coming at night. It was told by the accused Shiv Shankar on phone that money be arranged. At about 8:00 p.m. the accused Shiv Shankar and Rajesh came to the house of the informant Sunil and took his sister Mamta inside the room and stating that some conversation has to be made with her. They went in another room. The appellant Shiv Shankar with intention to kill his sister Mamta threw some liquid substance on the person of informant's sister Mamta as a result of which she started burning by fire and the accused Shiv Shankar and Rajesh came out of the room and fled away. The fire caught hold Mamta in room as a result of which his sister Mamta was burnt. In order to save his daughter Mamta, the father Brahmanand Gupta also got burn injuries and the neighbours of the locality came and put off the fire. On the basis of this report, it is admitted that earlier calling on a phone call Shiv Shankar along with his relative Rajesh Gupta came at night. They had come at night at 8:00 p.m. and they were honoured and offered tea and both of them talked with the parents of Sunil the informant. On the same day at about 11:30 p.m. his father Brahmanand called his son Sunil to send Mamta when Mamta came, her husband Shiv Shankar took her in another room for talking. At about 12:00 p.m. they heard the cries of Mamta when they came out from their respective rooms by down stairs, they saw that Mamta in burning condition came out of the room and fell down in the courtyard near the tap. The father of Mamta was trying to extinguish fire as a result of which he also received burn injuries. A blanket was thrown over the person of Mamta but the fire could not be extinguished, thereafter water was thrown on her. In between this attempt to save Mamta, the accused Shiv Shankar and Rajesh opened the main door of courtyard and fled away in lane. It is clear that Shiv Shankar was pressurizing Mamta to ask her brother and father for giving Rs. 2 lakhs and on her refusal to do so, Shiv Shankar threw some liquid substance on her person which started flaming and she started burning.

Thus from the perusal of the evidence on record, it comes out that incident had taken place inside the house of Mamta's parents but it has also positively come in evidence that after ringing Shiv Shankar after ringing had come to the house of Mamta and had taken tea etc. along with his brother Rajesh and Shiv Shankar had gone for a walk and then again came back about 11:30 p.m. He asked to call Mamta to have some conversation with her and when Mamta came, he took her in another room and at about 12:00 p.m. this witness who is informant himself heard the cries of Mamta. He saw that Mamta in burning condition came out of the room and fell down in the courtyard near the tap. The father of Mamta was also trying to extinguish the burn injuries of Mamta. This witness has also told that Mamta narrated the factum of Shiv Shankar asking her to pressurize her brother and father for giving Rs. 2 lakhs and on her refusal to do so, Shiv Shankar threw some liquid substance on her person which started flaming and she started burning.

Thus the testimony of this witness shows that the incident had taken place inside the parent's house of Mamta. Inmates of the house have given positive evidence of Shiv Shankar coming after information through telephone and had also given positive evidence of calling Mamta for having a talk with Shiv Shankar and taking her away in another room of the house where, only Mamta and Shiv Shankar were present and no one else.

Learned counsel for the accused appellant submitted that the burn injury has to be explained by father and brother and other inmates of Mamta's father's house because the incident had taken place in their house but a perusal of the record shows that they have given positive evidence of the fact that Shiv Shankar came to their house on that particular date and in night at 11:30 p.m. he asked for having a talk with Mamta. The father asked his son Sunil to send Mamta on the ground floor from upper floor and when she came on the ground floor, Shiv Shankar took her away in a separate room of the said house for having a talk with her. At about 12:00 p.m. the cries of Mamta were heard and on hearing the cries, the father as well as the son (informant Sunil) who were on the first floor came out from their respective rooms and saw Mamta coming out in a burning condition from the aforesaid room where she had gone along with Shiv Shankar and she came out and fell down in courtyard near the tap. So what happened actually in between Mamta and Shiv Shankar in that particular room of the said house was within the exclusive knowledge of Shiv Shankar and Mamta and no one else. Mamta has stated while coming out from the said room that Shiv Shankar was pressurizing her to ask her brother and father for demand and payment of Rs. 2 lakhs and she refused, whereupon Shiv Shankar threw some liquid substance upon her person which started flaming and she started burning.

The subsequent conduct of Shiv Shankar in opening the main lock door of the courtyard and fleeing in lane also shows his unnatural conduct because in case if, there was nothing such as stated by witnesses informant then it was natural for him to save his wife Mamta who was in burning condition who was with him inside the room but this has not been done by him instead he fled away. This subsequent conduct of the accused appellant Shiv Shankar goes against him and actually creates a presumption that no one else except the accused Shiv Shankar himself had thrown some liquid substance on the person of Mamta which started flaming fire.

So the burden has been sufficiently discharged by the inmates of Mamta's father's house by saying and stating that actually Shiv Shankar had come on that particular date and was present at the relevant time of the incident. Shiv Shankar was alone in the particular room of their house with Mamta from where Mamta came out in burning condition. This fact has not been rebutted from the side of the defence by putting any plea of ali-bi or any facts in rebuttal.

The father of Mamta examined as PW-2 has also narrated the same facts. On the other hand, the accused appellant Shiv Shankar has not placed any other material of rebuttal or any plea of ali-bi that on the relevant time he was not present in the house of Mamta's father and was at some other place else where.

Thus the burden by which the accused Shiv Shankar has to rebut the fact of his presence at the time of incident has not been duly discharged by the accused Shiv Shankar. On the other hand, the inmates of Mamta's house have given sufficient cogent evidence to show that at the time of incident Shiv Shankar had come to their house, accompanied Mamta in a room of that house from where Mamta came out in a burning condition and also the subsequent conduct of Shiv Shankar that he ran away from the house.

At the same time if for the sake of argument, it be accepted that the contentions raised by P.W.-1 and P.W.-2 are false even then the omission on the part of husband Shiv Shankar is not coming soon to see and help her burning newly wedded wife also smells otherwise.

In this connection, it is also relevant to consider the cause of death. It has been argued on behalf of the learned counsel for the accused appellant that no torture for demand of dowry could be proved by the prosecution as also dying declaration does not disclose this fact. In this connection, it is argued on behalf of the prosecution that both the prosecution witnesses had stated on oath that after marriage the accused Shiv Shankar and his brother Pramod demanded Rs. 2 lakhs for running Computer Coaching Centre. It is also submitted that the demand was made as the accused applicant Shiv Shankar was no more in service.

Learned counsel appearing on behalf of the prosecution submitted that a newly married girl was left at her parent's house by the accused appellant for not fulfilling demand of Rs. 2 lakhs with just within three months of marriage and this conduct itself indicates that torture for demand of dowry was there. Admittedly, Mamta was at her parent's house and as per the statements of two witnesses who are brother and father of Mamta telephonic message were received by Mamta as well as communicated to them by Mamta for fulfilling of demand of money made by Shiv Shankar and Pramod. So thus leaving a newly wedded wife to her parent's house and constant demand of dowry shows that there was mental torture for dowry.

Now coming to the question of genuineness of dying declaration of Mamta, it has to be seen as to what extent it is genuine. The contentions of learned counsel for the accused appellant is concerned that in the alleged dying declaration, there is no mention of any demand of dowry. It is contended on behalf of the learned counsel for the prosecution that dying declaration is relevant only to the point as to cause of death narrated by the deceased in her statement made previous to death. The dying declaration clearly indicates that Shiv Shankar poured some watery liquid substance on her person as a result of which she started burning. The cause of death is thus narrated by Mamta that by pouring some liquid material on her person by accused Shiv Shankar, she started burning and it resulted in her consequent death.

In this connection, it is further submitted by learned counsel for the accused appellant that the dying declaration is concocted. He pointed out that at the time of recording of dying declaration in emergency compartment, father of Mamta was also present there and possibility cannot be denied that the statement was given by her on tutoring of her father but a perusal of dying declaration which is Ext.Ka -23 CW-1 shows that it has been made in the most natural way. The dying declaration must have mentioned all the facts had it been tortured, but a perusal of dying declaration shows Shiv Shankar has stated that he has brought some gift for her and asked her to stand at her back, Shiv Shankar poured some watery liquid on her person which caused her a feeling of ablazing and it started burning. She has stated that why Shiv Shankar had done, so she cannot tell.

So cause for death has been narrated in a most natural manner by throwing some watery liquid on the person of Mamta which started ablazing and burning which resulted in her consequential death. The doctor has given certificate that during the statement, the patient was in full senses and was also in a condition to give statement. So the story of tutoring by the father or any member of Mamta's house stands falsified by the mere fact that in the dying declaration only cause of her death has been narrated in a most natural way and nothing beyond that.

The contention raised by learned counsel for the appellant that the first dying declaration was given by the victim to her brother and father just after the incident but it does not find place in the F.I.R. In this connection, it cannot be ignored that in such a situation when the sister/daughter was already seriously burnt and was in a serious condition, the narration of all the facts in F.I.R. is not practicable nor possible and more so the F.I.R. is not an encyclopaedia in which there must be the narration of all the facts and minor details. The dying declaration relied upon by the prosecution has been recorded by the Magistrate in Hospital during her admission and treatment in the Hospital and has been duly proved by the prosecution.

Another contention has been raised that the doctor who attended has told that he referred Mamta for Agra Medical College as her condition was very serious at 1:00 a.m. and 1:10 a.m. and hence there was no occasion for recording the dying declaration at 1:50 a.m. to 2:07 a.m. It is worthy of notice that after recommendation of doctor for reference to Agra Medical College, the parents after obtaining the relevant papers as well as making suitable arrangement of vehicle etc. moved and it is not that immediately at 1:10 a.m. he or she is removed from Hospital for going as referred Agra Medical College at 1:10 a.m. It is practicable aspect of knowledge that only after the reference is made by doctor and on completion of papers and payment of dues etc. if any, the patient is allowed to be removed and not forthwith as argued by learned counsel for the accused applicant. It is also worth noting that doctor has written for arrangement of Magistrate for recording dying declaration as her condition was serious, in compliance of that direction, the Magistrate came and recorded dying declaration accordingly.

In the circumstances, when information for recording for her statement was sent by the doctor concerned, it cannot be denied that her statement in shape of dying declaration could not be recorded between 1:50 a.m. to 2:07 a.m. and specially in the circumstances, when the statement has been duly proved by oral evidence that it was in fact recorded at the relevant time and place. So the prosecution has succeeded in proving that the dying declaration of Mamta was recorded at Etah Hospital as alleged by Ext.Ka- 23 and it discloses the cause of her death in a most natural manner.

Learned counsel for the accused appellant has submitted that at Medical College Agra, it appears that a note for recording dying declaration, a memo has been sent to Police for arranging a Magistrate. The point is obvious because Mamta was in serious condition in Agra and doctor had not and could not confirm the fact that dying declaration has already been recorded at Etah, he mentioned for recording dying declaration by Magistrate in a routine manner but this fact merely cannot unsettle or damage the dying declaration already recorded at Etah.

The 3rd dying declaration as argued by the learned counsel for the accused appellant was recorded by Investigating Officer at Agra but the same was not placed before the Trial Court. It is also submitted that at Agra, Police was informed for arranging for recording the dying declaration. It appears that in the routine manner without inquiring as to whether the dying declaration has already been recorded or not, the aforesaid information was sent but no such dying declaration was ever recorded at Agra. The doctor has admitted in his statement at the time of conducting her medical, he was not given any information as to whether the dying declaration had already been recorded or not.

One more question has been raised from the side of the accused appellant that even if the dying declaration be accepted, then without any matchstick, how the fire was ablazed.

Two folds arguments are advanced by the learned counsel for the State and opposite party. It is submitted that as per the contention in dying declaration, accused Shiv Shanker told Mama that he had brought some gift for her, you should bring your fact towards me or you should stand behind me and Shiv Shankar poured some watery liquid substance on a person of Mamta as a result of which she started burning and the fire was ablazed. It is contended that whether watery liquid substance was thrown from behind, Mamta was not in a position to see as to how fire was put on her by the accused Shiv Shankar.

Secondly, it is argued by that the accused appellant Shiv Shankar was a student of Chemistry at the post graduation stage, possibility cannot be ruled out that he had thrown some such liquid substance which while coming into contact with air caught fire and same was within his special knowledge only.

Keeping these facts in mind and also considering statement of Mamta at Hospital, it cannot be denied that such substance was thrown on person of Mamta. The dying declaration was authentic regarding the cause of death which cannot be disputed or questioned.

It is contended on behalf of the accused appellant that while going Agra Medical College neither the father nor the brother had accompanied with Mamta on way but one Vikas Gupta who was resident of nearby house has accompanied with her.

Learned counsel for the accused appellant submitted that in all probabilities Vikas Gupta must have some intimacy or some short of illegimate intimate relationship with Mamta and hence he has taken interest to provide the best medical treatment to her but it is only an argument in air advanced on the side of the learned counsel for the accused appellant. No material evidence either oral or documentary has been put forward to depict that Vikas Gupta has some illicit intimate relationship with Mamta as a result of which he accompanied with her.

It is also contended that in F.I.R. there was story that Shiv Shankar came to her house at 8:00 p.m., subsequently during the course of trial in a court, the story was changed and it is said hat that they came to her house at 8:00 p.m. and then went for walking and then again returned at 12:00 p.m. and thereafter Shiv Shankar had talked with Mamta in a room where there was no one except Mamta and Shiv Shankar the incident had taken place.

So far as these contradictions are concerned, there is no contradiction in the contention of both the prosecution witnesses that at 12:00 p.m. Shiv Shankar accompanied Mamta in a room of her father's house for some talk with her and from that room Mamta came out in a burning condition and it also coupled with the dying declaration statement of Mamta that Shiv Shankar poured some watery liquid on her person and which started ablazing and burning. So the basic fact that Shiv Shankar had accompanied Mamta in a room all alone and Mamta got burning and came out of the room and crying shows that it was Shiv Shankar who had caused burn injuries to Mamta. There is no contradiction in the statement of both these witnesses on this material point and it also stands supported by the statement given as dying declaration by Mamta before Magistrate regarding cause of her death. So the basic fact that Shiv Shankar has caused burn injuries to Mamta at her father's house on that particular date and time stands duly proved.

In this connection, it is also worth while to note that the subsequent conduct of the accused appellant Shiv Shankar had it been a wrong version given by the prosecution. Then the subsequent conduct of accused appellant Shiv Shankar ought to have been to lodge an F.I.R. on receiving the information of burn injuries on the person of Mamta inside of the house of her father, if he was not present as alleged by the prosecution, it was natural on his part to have approached the father-in-laws house and must have attended to Mamta in Hospital for her proper treatment.

It was also natural on his part to have lodged F.I.R. and have participated in the investigation from the side of prosecution in the matter but all these omissions on the part of the accused appellant Shiv Shankar in this regard also shows that it was no one else except Shiv Shankar who had caused burn injuries as alleged by the prosecution witnesses as also by Mamta in her dying declaration. This subsequent conduct of omissions on part of the accused appellant Shiv Shankar also goes to show his culpability in the matter as alleged by the prosecution witnesses. On the basis of the aforesaid discussions, it comes out that the prosecution has satisfactorily proved its contention against the accused appellant Shiv Shankar.

Learned Sessions Judge has rightly relied on the prosecution witnesses and material as well as dying declaration and convicted the accused appellant Shiv Shankar under Sections 498-A /304-B I.P.C. and no error has been committed by the learned Sessions Judge in appreciation of evidence as well as the appreciation of dying declaration and the subsequent demeanour of the accused appellant Shiv Shankar which is relevant under Section 8 of Indian Evidence Act, no intervention in the appreciation of evidence is required at this stage.

Lastly, it is submitted by the learned counsel for the appellant that the accused appellant Shiv Shankar has been in jail since more than 11 years and he has undergone sufficient mental agony and pain in the matter. He has also a feeling of repentance in the matter and requested that he be released on punishment which has already been undergone by him.

Similarly it was also submitted by learned counsel for the appellant that the accused Pramod Kumar who has been punished by the trial court under Section 498-A I.P.C read with section 4 D.P. Act has been alleged and held to be guilty of mental torturing not soon before death but otherwise at different times. So he has also undergone sufficient mental agony and pain in the matter for the numbers of years and a feeling of repentance in the matter and requested that punishment be minimised and he be directed to be released on punishment already undergone by him.

On hearing learned counsel for the appellant on the point of sentence and considering the entirety of circumstance as well as long period during which they have been facing trial and as the pendency of the appeal, We think it expedient that it will be sufficient to punish accused appellant Shiv Shankar a period of 12 years R.I. under Section 304-B I.P.C. and three years R.I. and fine of Rs. 5000/- each for offence under Section 498-A I.P.C. and section 4 D.P. Act and in default of payment of fine the accused Shiv Shanker shall undergo simple imprisonment for six months more. The sentence imposed shall run concurrently.

So far as accused Pramod Gupta is concerned, and as has come out in the judgement of the Sessions court by material evidence on record that he was held guilty of mental torturing for additional demand of Rs. 2 lakhs and there was no torturing on his part soon before death as he had not come along with Shiv Shankar it will be expedient that Pramod Gupta be sentenced to three months R.I. and fine of Rs. 15,000/- under Section 498-A I.P.C. and further three months R.I. and fine of Rs. 15,000/- under Section 4 D.P. Act and in default of payment of fine in both sections, he shall undergo simple imprisonment for six months more. All the sentences the appellant shall run concurrently.

The order of learned Sessions Court is accordingly modified to the extent of the sentences imposed. The period of imprisonment already undergone by accused Pramod shall be set off against the period of imprisonment imposed upon him.

Accused appellant Shiv Shankar is sentenced to three years R.I. and Rs. 5000/- as fine under Section 498-A I.P.C. and section 4 D.P. Act and in default of payment of fine, he shall undergo simple imprisonment of six months more. Accused Shiv Shankar is sentenced to 12 years R.I. under Section 304-B I.P.C. and fine of Rs.5000/- and in default of payment of fine, he shall undergo simple imprisonment of six months more.

Accused Pramod Gupta is sentenced to three months R.I. for offences under Section 498-A I.P.C. and a fine of Rs. 15,000/- and to three months R.I. for offence under Section 4 D.P. Act and fine of Rs. 15,000/-. and in default of payment of fine in both sections, he shall undergo simple imprisonment for six months more. All the sentences shall run concurrently.

The period of imprisonment already undergone by the accused appellants shall be set off against the period of imprisonment imposed upon them.

The appeals are partly allowed.

Date : 21.10.2011.

Monika/Cri. Appeal No. 974/09 connected with Cri. Appeal No. 4508/04