Saudan Singh And Anr. vs State Of U.P.
2015 Latest Caselaw 352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 24.03.2015
 
Delivered on 05.05.2015
 
Court No. - 46
 
AFR
 
Case :- CRIMINAL APPEAL No.- 4395 of 2011
 

 
Appellant :- Saudan Singh And Anr.
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- Anvir Singh, Pramod Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.This appeal has been preferred against the judgment dated 01.07.2011 passed by Addl. District Judge, Court no.-16, Bulandshahar in S.T. No. 297 of 2009, State Vs. Raj Kumar and four others, case crime no. 655/ 2008, under sections 498A, 304-B IPC and 3/4 of D.P. Act, p.s. Khurja Nagar, district Bulandshahr.

2.Sri Anvir Singh, Advocate appeared on behalf of appellants, and for respondent side AGA appeared. Heard rival contentions and perused the records.

3.The prosecution case in brief was that marriage of Neeraj Kumari daughter of Ram Swarup (complainant) resident of village Sabtaj Nagla p.s. Akrabad, Aligarh was solemnized with Raj Kumar son of Saudan Singh, resident of Bilkhaura p.s. Sashani, district Hathras in the year 2006. In this marriage, complainant Ram Swarup had spent Rs. 1.25/- lacs and given dowry, but Raj Kumar (husband of Neeraj Kumari), Saudan Singh (father-in-law), Sri Devi (mother-in-law), Shiv Kumari (Sister of Raj Kumar), Angoori Devi (Sister of Raj Kumar), Kanchan Singh (husband of Angoori Devi), Bablu, Mukesh, Pappu (Son of Kanchan Singh) were unhappy with dowry. These persons used to harass Neeraj Kumari for the demand of additional dowry in the form of one motor-cycle and Rs. 20,000/- cash. Earlier, they had expelled Neeraj Kumari from their house for demand of dowry, but on persuasion by complainant, they had permitted Neeraj Kumari to come in their house. On 24.06.2008 at about 11.00 a.m, in the day, these persons had sprinkled kerosene oil on Neeraj Kumari and burnt her, due to which, she was seriously injured. This incident was informed to the complainant on 25.06.2008, then he alongwith his brother Rajpal visited Ram Singh Bara, Khurja to see his daughter Neeraj Kumari. There Neeraj Kumari told that above named persons of her husband's house had sprinkled kerosene oil and burned her for demand of dowry of motor-cycle and Rs. 20,000/- cash . Then brother of complainant went his village and came with 14-15 persons and taken Neeraj Kumari by a vehicle to Khurja Hospital, from where, Neeraj Kumari was referred to Aligarh Medical College. When complainant went to report the matter in police station Khurja, he was asked to report the matter in district Aligarh, then complainant Ram Swarup had given an application dated 14.07.2008 to S.S.P. Aligarh informed that his daughter is still under treatment in Aligarh Medical College. On the basis of this type of written report of complainant, Ram Swarup Jatav, FIR was lodged in Aligarh and thereafter investigation was transferred to p.s. Khurja of district Bulandshahr. It is noteworthy that when Neeraj Kumari was admitted in Aligarh Medical College, her dying-declaration was recorded by Additional City Magistrate, Aligarh on 25.06.2008, thereafter, Neeraj Kumari had succumbed to burn injuries and died on 08.08.2008. After investigation, investigating officer had submitted charge sheet against five persons, namely, Raj Kumar, Saudan Singh, Sri Devi, Kanchan Singh and Angoori Devi for offences under Section 498, 304 B and 3/4 D.P.Act. All five accused persons were charged for offences under Section 498, 304B IPC and 3/4 D.P.Act, they had denied charges and claimed for trial. Later on alternative charge of Section 302 read with Section 149 IPC was framed by the Court against all accused persons, they denied the charges and claimed the trial.

4.In support of charge, in oral testimony, prosecution side had examined PW-1 Ram Swarup, PW-2, Rajpal (complainant's brother), PW-3 Vijay (complainant's son), PW-4 Dr. Sudhir Kumar Verma, PW-5 Constable Rajpal Singh, PW-6 Ramkala Singh, (C.O/I.O), PW-7 Udai Raj Singh- Additional City Magistrate, PW-8 Constable Chhatrapal Singh, PW-9 Dr. Mohd. Sahjan Niyamat, PW-10 Constable Ram Autar Singh, PW-11 Dr. Naresh Kumar, PW-12 Constable Sahabuddin. These witnesses had proved documentary prosecution evidence from Exhibit Ka-1 to Exhibit Ka-16.

5.After closer of prosecution evidence statement under Section 313 Cr.P.C, of all accused persons were recorded, in which they pleaded not guilty and stated that prosecution evidence is incorrect and false. The defence side had not adduced any oral or documentary evidence in defence.

6.After affording opportunity of hearing, learned Sessions Judge had passed judgment dated 01.07.2011, by which two accused persons namely, Saudan Singh and his wife Smt. Sridevi were convicted for the charge of Section 302 read with 34 IPC. All other accused were acquitted from all other charges. Then after hearing the accused Saudan Singh and Smt. Sridevi and their counsel on point of quantum of sentence, the trial court had passed sentence against them by which, Saudan Singh and Smt. Sridevi, each were awarded imprisonment for life with fine of Rs. 5,000/- (in default of payment of fine 5 months additional imprisonment). Aggrieved by this judgment and sentence dated 01.07.2011, accused Saudan Singh and Smt. Sridevi had preferred the present appeal.

7.The first prosecution witness PW-1 Ramswarup, the complainant is resident of village Nagla Sartaj p.s. Akrabad, district Aligarah. He stated that marriage of her daughter Neeraj Kumari was solemnized with Raj Kumar in the year 2006, in which, he had spent Rs. 1.25 lacks. He had given Rs. 40,000/- cash , dresses, utensils, gold ring, gold chain, colour T.V. Almira and dressing table; but accused Raj Kumar, Saudan Singh, Sridevi, Kanchan Singh, Angoori Devi, Rajveer were not happy with dowry given by him and had been demanding motor-cycle and Rs. 20,000/- cash. This fact was informed to him by his daughter Neeraj Kumari. These accused persons used to harass Neeraj Kumari for the demand of dowry. After marriage Raj Kumar and Neeraj Kumari had resided in mohalla Bara Ram Singh, p.s. Khurja, district Bulandshahr with family. On 24.06.2008 at about 11:00 a.m. accused, Raj Kumar, Saudan Singh, Sridevi, Angoori Devi, Kanchan Devi, Rajveer @ Ramveer had harassed Neeraj Kumari for the demand of dowry and burnt her after sprinkling kerosene oil. Any person informed this incident on 24.04.2008 to Gopal, resident of village Nagla Sartaj, then he (PW-1) and his brother immediately rushed to see Neeraj Kumari in Khurja, where Raj Kumar were used to reside in a rented accommodation, and there they found that whole body of Neeraj Kumari was burnt and her condition was serious. His daughter Neeraj Kumari informed him that all accused persons had burnt him after sprinkling kerosene oil because her father could not fulfill dowry demand of motor-cycle and Rs. 20,000/- cash. At that time no accused was available as they had absconded. Then he (PW-1) sent his brother to his village on 25.06.2008 and he took Neeraj Kumari to Khurja Hospital, from where she was referred to Medical College, Aligarh. In Medical College, Aligarh the Neeraj Kumari succumbed to injuries during course of treatment. Then he (complainant) came to police station Khurja, but his report was not lodged, so he approached police station Akrabad, but FIR was not lodged; then he gave type written application to S.S.P. Aligarh, on which the case was lodged in p.s. Police Lines, Aligarh. This witness had proved his written report as exhibit Ka-1.

8.During cross-examination of PW-1 Ram Swarup had stated that accused Raj Kumar started living in Khurja one month earlier to the incident, but he does not know the name of his land-lord. When he visited from his daughter in Khurja on the date of incident, she was in unconscious state. He admitted his daughter on 25.06.2008 in unconscious state and on same day she was referred from Khurja to Aligarh Medical College. After two hours they reached Aligarh at about 05:00 p.m. where doctors started her treatment; and her husband Raj Kumar remained with Neeraj Kumari in hospital. During further cross-examination P.W.1 (complainant) stated that he had never visited the rented house of Raj Kumar in mohalla Ram Singh Bara, Khurja, and Raj Kumar had started treatment of Neeraj Kumari in his house where her wounds were bandaged. Firstly, Raj Kumar had started treatment of Neeraj Kumari and after him he (PW-1) had carried out her reatment. In cross-examination PW-1 admitted that Neeraj Kumari and Raj Kumar had good relations. One year before the incident Raj Kumar had gone to Faridabad in connection with his job, and during that period Neeraj Kumari remained with him. This witness had denied suggestion of defence side that he had taken his daughter Neeraj Kumari to his house from Medical College.He had also denied suggestion of defence side that he instigated Raj Kumar to take his share of land from his father and live separately. He had also denied the suggestion of defence side that Raj Kumar used to reside in Khurja with his wife Neeraj Kumari because his father had not given him separate land.

9.At several places during statement PW-1 stated that he himself had admitted his daughter Neeraj Kumari in Medical College, Aligarh, where she remained till 08.08.2008, that is till her death; but at other places during cross-examination PW-1 stated that when he visited Ram Singh Bara, Khurja on information of incident, then he found Raj Kumar there, and Raj Kumar had accompanied with Neeaj Kumari and had admitted her in Khurja Hospital, and also that it was Raj Kumar who took Neeraj Kumari to Aligarh Medical College where she was admitted under signature of Raj Kumar. PW-1 had admitted that he asked Raj Kumar to bear expenses of treatment of Neeraj Kumari, then Raj Kumar left him on pretext of arrangement of money but had not come back and never sent money, therefore, he named Raj Kumar in his report.

10.Other witness P.W.2, Raj Pal is real brother of complainant Ram Swarup. He has stated that after marriage of Neeraj Kumari and Raj Kumar in the year 2006, accused persons had been demanding motor-cycle and Rs. 20,000/- in dowry and used to manhandle the Neearj Kumari for it. Accused Saudan Singh and Sridevi, Kanchan Singh, Angoori Devi, Raj Kumar, Mukesh, Pappu and Bablu had started residing in Ram Singh Bara, Khurja. On 24.06.2008, these accused had burnt Neeraj Kumari in Ram Singh Bara and killed her. On information he and Ram Swarup (complainant PW-1) came to Khurja and found Neeraj Kumari in burnt state. They found that accused were absconding, then he and his brother Ram Swarup and other persons had taken Neeraj Kumari to Khurja Hospital, but due to her serious condition she was referred to Medical College, Aligarh, where she died after 40-45 days during treatment. After her death inquest report was prepared in Aligarh and thereafter dead body of Neeraj Kumari was taken to his village, where she was cremated. In cross-examination PW-2 had stated that Raj Kumar used to residing in Faridabad with his wife, but he came Khurja about 20 days prior to the incident. When he (PW-2) got information of burning of Neeraj Kumari and went to Khurja, then landlord informed them that Raj Kumar is in Khurja for 18-20 days. He was informed by landlord of Raj Kumar about the incident, then he reached Khurja at about 2:00 p.m. and found Neeraj Kumari in unconscious state. Then they took Neeraj Kumari to Khurja hospital at about 11:30 O'clock in the noon. In the hospital Raj Kumar came after half an hour. Neeraj Kumari was not treated in Khurja hospital and was referred to Medical College, Aligarh where she remained admitted for 40 days. Doctor had told them to go to the police station, but they had not gone there. In cross-examination PW-2 had admitted that Sridevi and Saudan Singh are aged about 70-75 years and are resident of village Bilkhaura, and the distance of Bilkhaura from Khurja is about 100 kms, and this village is within district Hathras. In cross-examination PW-2 had stated that deceased Neeraj Kumari and Raj Kumar had been living in Faridabad (Haryana) for about 2-3 months prior to the date of incident. In cross-examination PW-2 had also stated that they had managed the discharge of Neeraj Kumari from Aligarh hospital on 19.07.2008 and she died on 08.08.2008. PW-2 had denied this suggestion of this defence side that Ram Swarup had brought the dead body of Neeraj Kumari in Medical College, Aligarh on 08.08.2008 at about 6:50 a.m. At the end of this cross-examination, PW-2 had stated that treatment of Neeraj Kumari lasted 20-25 days in Aligarh Hospital. They became short of money, so they had taken Neeraj Kumari to their house, but when condition of Neeraj Kumari deteriorated again, then after 15-16 days she was again taken to Aligarh Hospital where she died. PW-2 had denied the suggestion that Neeraj Kumari had died at her parental home due to lapse in treatment and care and body was brought to hospital. PW-2 had also admitted in cross-examination that he had not personally seen Sridevi and Saudan Singh residing in Khurja, and his statement in this regard was based on information received from Neeraj Kumari. PW-2 had admitted that Kanchan Singh and Angoori Devi are resident of village Banail, where they reside and carry on farming and the age of Kanchan Singh was 65 years.

11.PW-3 Vijay Pal is younger brother of deceased Neeraj Kumari and son of complainant Ram Swarup. His age was 23 years in the year 2010 at the time of his statement, therefore, his age was approximately 18-19 years at the time of incident in question. In his cross-examination, PW-3 had stated that his sister Neeraj Kumar was married to Raj Kumar. In this marriage Rs. 1.5 lacs were spent, but accused were not happy with it and used to manhandle the Neeraj Kumari for payment of motor-cycle and Rs. 20,000/- cash. Raj Kumar and Neeraj Kumari lived in Delhi for about two months and then came to village Banail. Thereafter, they remained in mohalla Ram Singh Bara of district Khurja on rent. On 24.06.2008 all accused persons had killed his sister in mohalla Ram Singh Bara. They had taken Neeraj Kumari for treatment in Khurja Hospital, from where she was referred to Aligarh Medical College and there she died. In cross-examination, PW-3 had stated that he had never visited rented room where Raj Kumar was living with his wife Neeraj Kumari. He does not know as to who was the landlord of that room. He had not seen the incident in question and he was informed about it by neighbors, but he does not remember the name of any of them. PW-3 had specifically stated that after Neeraj Kumari was admitted in Aligarh Medical College, he remained with his sister there in hospital. After admission in Medical College Aligarh,he remained there continuously till her death and during this period, she was never taken from hospital to her house. PW-3 had denied this suggestion that Saudan Singh and Sridevi had not given the share of land to Raj Kumar, so he had gone to NOIDA, Delhi and Khurja with his wife. On the next date of cross-examination PW-3 Vijay Pal had stated that Raj Kumar had never visited in Aligarh Hospital during treatment of Neeraj Kumari. He had further stated that after 24-25 days of being there in Aligarh Hospital, Neeraj Kumari was taken her house where she remained 2-3 days; but when her position deteriorated she was again taken to Aligarh Medical College; but before admission in Medical College and visit of doctors, she died. He denied the suggestion that Neeraj Kumari had died on her house and her dead body was taken to hospital. He also denied the suggestion of this defence side that Raj Kumar had been bearing the expenses of treatment of Neeraj Kumari in Aligarh Hospital, and also that when heavy amount was not given by Raj Kumar then this false case was registered. PW-3 had admitted this suggestion of defence side that age of Sridevi and Saudan Singh is 70-75 years respectively and they are old persons who reside in gram Bilkhaura. He had also accepted this suggestion of defence side that Kanchan Singh and Angoori Devi are residing in village Banail and their age is 60-65 years. He denied this suggestion of defence side that Neeraj Kumari was not burnt by accused person and under stress of being issueless she had committed suicide.

12.PW-4 Dr. Sudhir Kumar Varma has been posted in Medical College Hospital of Aligarh as physician. He proved during his examination that on 09.08.2008 at 05:00 p.m. he had performed the post-mortem of dead body of Neeraj Kumari, daughter of Ram Swarup complainant and prepared post-mortem report (Ex-Ka-2). In post mortem report he had noted the cause of death of Neeraj Kumari as septic shock due to ante-mortem injuries. In cross-examination PW-4 had stated that some documents were brought with the body of the Neeraj Kumari in the form of confidential memo, in which "brought dead" was written, the meaning of which is that deceased Neeraj Kumari was brought in hospital in dead condition and she had died before coming to hospital.

13.PW-6 Ramkala Singh is the investigating officer of this case who had conducted the investigation in very careless and recklessness manner. He had not prepared any important documents relating to investigation in his hand-writing; and on different dates case diary was written in hand-writing of different persons subordinate to him. In cross-examination PW-6 investigating officer had stated that at the time of spot inspection he had not found any burnt cloth. Complainant (PW-1) had not given any evidence to him that may indicate that complainant had admitted the Neeraj Kumari in Khurja hospital or Aligarh Medical College Hospital. Complainant had not shown him burnt cloth of Neeraj Kumari.

14.PW-7 Uday Raj Singh was posted as Additional City Magistrate- IInd Aligarh on 25.06.2008. He stated that he was authorized for recording the dying-declaration of Smt. Neeraj Kumari on that day, so he went in J.N. Medical Hospital, Aligarh, where he found Neeraj Kumar in conscious state and she was able to talk. Then he had recorded the statement of Neeraj Kumari and taken her thumb impression over it. Chief Medical Officer had also issued certificate and after statement of Neeraj Kumari. This witness had proved statement of dying-declaration of Neeraj Kumari as Ex.-Ka-6. In cross-examination this witness had stated that Neeraj Kumari had not named Kanchan Singh and Angoori Devi as accused in her statement.

15.PW-9, Dr. Mohd. Sahjane Niyamat was posted in J.N. Medical College, Aligarh on 25.06.2008. He stated that on that day Uday Raj Singh, Addl. City Magistrate 2nd, Aligarh had called him for knowing the condition of Neeraj Kumari. He visited with City Magistrate at 05.08 p.m. and found that though Neeraj Kumari was burnt, but she was in conscious state and her mind was alert and she was able to give her statement of dying-declaration, so he had issued certificate to that effect. Thereafter dying-declaration statement was recorded. After completion of said statement he had checked that she was mentally alert and then he issued Ex-Ka-9 certificate. This doctor has admitted in cross examination that medical report of Neeraj Kumari was not before him at the time of court proceeding, therefore, he is unable to told as to when she was admitted in hospital on 25.6.2008. His duty was in causality ward from 3 pm to 10 pm.

16.Other prosecution witnesses namely PW-5, PW-8, PW-10 and PW-12 are police personnel and formal witnesses. PW-11 Dr.

17.Naresh Kumar was posted as Chief Medical Officer in J.N. Medical College Hospital, Aligarh on 08.08.2008 and in his statement told that on that day Neeraj Kumari was brought in this hospital at 06:50 p.m., but she had already died before coming to hospital. On 8.8.2008, while on duty he had examined the patient and found her dead and informed the Police Station, Civil Lines by information letter Ex-Ka-15.

18.Other prosecution witnesses namely, Constable Chhatrapal Singh (PW-8), Constable Ram Autar Singh (PW-10), and Constable Shahabuddin (PW-12) are normal witnesses. PW-5 and C.O. Ram Autar Singh (PW-6) had proved GD. PW-8 had proved Chick, PW-12 had proved GD. PW-10 had proved second document relating to inquest in his secondary evidence and PW-6 was I.O. of the case.

19.After closer of prosecution evidence statement of accused persons under section 313 Cr.P.C. was recorded. All accused had denied incident of charge against them. Raj Kumar, husband of deceased Neeraj Kumari, had stated that even after passing of 2 years after marriage Neeraj Kumari had no issue due to which she was stressed and had burnt herself. When he got information of this incident he came home, informed the family members of his wife (Neeraj Kumari) and taken her to doctor for treatment. Later on Neeraj Kumari was taken her to Aligarh Medical College. He also remained with his wife in medical college. Father and mother of Neeraj Kumari used to demand five lakh rupees from him, and when he had not given this amount they had lodged false report. Kanchan Singh is husband of sister of Raj Kumar. In his statement u/s 313 CrPC he told that he was falsely implicated for demand of money. Sridevi is mother-in-law of deceased told that Neeraj Kumari was stressed because she had no child, and for this reason she had burnt herself. Later on father of Neeraj Kumari had demanded Rs. 5 lakhs from her husband and when this amount was not given they have lodged false report. Sridevi had stated that she had never visited Khurja where Raj Kumar and Neeraj Kumari used to live. Saudan Singh is father-in-law of the deceased who had stated in his statement u/s 313 CrPC that he had never visited Khurja where Neeraj Kumari and Raj Kumar were living. Neeraj Kumari was stressed due to inability to become mother, so she had burnt herself. Father of Neeraj Kumari demanded Rs. 5 lakhs from them and when the amount was not given they lodged false report. Angoori Devi is sister of Raj Kumar, who had pleaded not guilty and stated that she has no connection with this incident.

20.The defence side had not examined any defence witness. In the Sessions Trial, learned Sessions Judge had charged Raj Kumar. Saudan Singh, Sridevi, Kanchan Singh and Angoori Devi for offence punishable under section 304-B, 498-A, and 3/4 Dowry Prohibition Act. Later on these accused were charged with alternative charge of offence punishable u/s 302/149 IPC. After affording opportunity of hearing to prosecution and defence side and after receiving their evidences and hearing their arguments, learned Addl. Sessions Judge, Court No.-16, Bulandshahr had given judgment dated 01.07.2011 by which all accused were acquitted for the charges of section 304-B, 498-A and 3/4 Dowry Prohibition Act. Learned Additional Sessions Judge has also acquitted Raj Kumar, Kanchan Singh and Anguri Devi from the charge u/s 302/149 IPC. Accused Saudan Singh and Sridevi were convicted for the charge of offence u/s 302/34 IPC. After hearing Saudan Singh and Sri Devi and their counsel on the point of quantum of sentence, Court below had punished each accused Saudan Singh and Sri Devi with imprisonment of life and Rs. 5000/- each as fine. Aggrieved by this impugned judgment dated 01.07.2011 the present appeal has been preferred by Saudan Singh and Sridevi.

21.Learned counsel for the appellants pointed out that in this case it is established from evidence that Raj Kumar was expelled by his father Saudan Singh. He started living with his wife in Delhi, Noida and in Khurja. He had no concern with appellants who had never visited his place in Delhi, Noida or Khurja. No one had ever seen appellant residing with Raj Kumar or deceased. It was also pointed out that FIR has been lodged on basis of incorrect and wrong facts. It is never established as to when Neeraj Kumari was actually burnt because neither any prosecution witnesses had seen the incident of burning nor it is proved from any evidence. He had also contended that prosecution witness of fact had deliberately concealed relevant facts, especially that a few days after getting admitted Neeraj Kumari in Medical College Hospital, Aligarh the complainant had taken her to his house against the medical advice of doctors; and when her condition deteriorated and she died then her dead body was brought to Medical College Hospital again on 08.08.2008. His main contention was that cause of death of Neeraj Kumari was not burning, but the fact that she was not properly treated due to which septicemia had developed resulting in death of Neeraj Kumari. FIR has been lodged on basis of incorrect facts and false evidence was given. He has also pointed that without any proper evidence judgment of the conviction has been passed by the trial Court. Therefore, the appeal deserves to be allowed and the appellants are liable to be acquitted.

22.Learned AGA had contended that there is no factual or legal error in the impugned judgment. There is no occasion for complainant to implicate the appellants falsely. There is no doubt in correctness of dying-declaration. Therefore the said declaration should be believed and appeal against judgment passed on dying-declaration is liable to be dismissed.

23.It is admitted case that none of the prosecution witnesses had seen the incident of burning of Neeraj Kumari. The complainant had lodged report for offence u/ss 498-A,323 IPC and 3/4 Dowry Prohibition Act in which after death of Neeraj Kumari section 304-B was added and for this offence charge sheet was submitted by Investigation Officer.

24.PW-6 Ramkala Singh, (C.O/I.O) is the Investigation Officer of the case. His statement reveals that he has been throughly incompetent in discharging his duty as Investigation Officer and had never applied his mind in investigation of the case. He had never written any parcha of case diary. Every entry of case diary during period of his investigation is written by some other person and he had tried to explain that at the time of every entry he was not fit to write case diary. Even charge sheet was not in his handwriting. The only thing in his writing was statement of Saudan Singh and Sridevi which are very small. The main evidence of this case was dying-declaration of Neeraj Kumari. PW-6 (I.O.) had never read the same. He had admitted in cross-examination that he has not seen dying-declaration of Neeraj Kumari.

25.The Investigation Officer had prepared charge sheet for offence under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act in which accused were charged but acquitted. It was the court who had framed alternative charge of section 302 read with 149 IPC against accused persons suo motu. For this offence two accused Saudan Singh and his wife Sridevi (father-in-law and mother-in-law) of the deceased were convicted.

26.From evidence adduced by witnesses of fact, namely, Ram Swarup (PW-1) complainant, Raj Pal (PW-2) brother of complainant and Vijay Pal (PW-3) (son of complainant) it is proved that deceased Neeraj Kumari was never subjected to cruelty for the demand of dowry. Even in dying-declaration (Ex-K-6) of deceased Neeraj Kumari there is no averment regarding demand or harassment for dowry. On many point statement of three witnesses of fact were found unbelievable. Therefore it was rightly disbelieved by trial court which had acquitted all accused persons from the charges of offence under section 498-A, 304 B IPC and 3/4 Dowry Prohibition Act. Learned trial Court has written detailed judgment on charges framed under sections 304-B, 498-A IPC and 3/4 D.P. Act and after discussion and analysis has rightly found evidence relating to it unbelievable and not proved.

27.The trial Court had convicted two appellants only on the basis of dying-declaration of Neeraj Kumari, but unfortunately learned Additional Sessions Judge had not discussed facts and circumstances relating to dying-declaration in the light of defence case. It had not discussed as to why defence case should be disbelieved for conviction u/s 302/34 IPC. Learned Additional Sessions Judge has noted that there is a dying-declaration (Ex-Ka-6) of deceased Neeraj Kumari and there is no evidence that may prove that she had burnt herself and committed suicide, so on the basis of available evidence the appellant Saudan Singh and Sridevi are held guilty of murder.

28.We have considered the facts and circumstances relating to dying-declaration and death of deceased Neeraj Kumari in the light of available evidences. First thing to be noted is that it must be ascertained as to when Neeraj Kumari was actually burnt. None of the prosecution witnesses had seen the occurrence. Complainant and his family members were living separately in another district at the time of incident and came Khurja only when they were informed after the incident. It was never proved that this prosecution case is correct that Neeraj Kumari was actually burnt on 24.6.2008. She was burnt anytime and taken to doctor at Khurja from where complainant and husband of Neeraj Kumari, namely, Raj Kumar had taken victim to Medical College Hospital, Aligarh. Prosecution side had examined three witnesses who are connected with this case. Out of them Dr. Sudhir Kumar Verma (PW-4) who had conducted post-mortem of the deceased on 9.8.2008. He had not stated anything about time of burning of Neeraj Kumari. Dr. Naresh Kumar (PW-11) had only stated that on 8.8.2008 the dead body of Neeraj Kumari was brought in the Medical College Hospital, Aligarh. He had also not said anything about time of burning of the Neeraj Kumari. Dr. Mohd. Sahjane Niyamat (PW-9) was present on 25.6.2008 in the evening at the time of recording of dying-declaration by Magistrate but he had not stated anything about time of burning of Neeraj Kumari. In his cross-examination PW-9 Dr. Mohd. Sahjane Niyamat had stated that he cannot tell as to when Neeraj Kumari was admitted in hospital. On 25.6.2008 when he came on his duty in causality ward then he found Neeraj Kumari admitted there. In these circumstances only statement of dying-declaration is there that may cast light on time of burning of the victim.

29.Additional City Magistrate Sri Uday Raj Singh (PW-7) recorded the statement of dying-declaration, who had stated that he has not asked Neeraj Kumari as to when she was burnt and Neeraj Kumari had also not told this thing. But the perusal of dying-declaration (Ex-K-6) itself shows that date of 22.6.2008 and time of 11.00 am for burning is written in it. She had stated that on 22.6.2008 at about 11.00 am she was burnt by his brother-in-law Rajveer (Jeth) and father-in-law in absence of his husband. This fact reveals that this prosecution side is incorrect that Neeraj Kumari was burnt on 24.6.2008. Either time of her burning is altogether not proved or she was burnt on 22.6.2008 as mentioned in her dying-declaration. In any case 24.6.2008 as the date of burning of the victim as mentioned in the charge is not proved.

30.PW-1 Ram Swarup complainant had stated that he had lodged FIR on the basis of information given to him by his daughter Neeraj Kumari, but facts of FIR lodged by him have been proved to be incorrect. He had written in his FIR that his daughter's husband Raj Kumar and his family members used to harass Neeraj Kumari and treat her with cruelty for demand of dowry. But in her dying-declaration Neeraj Kumari had never stated any word about alleged cruelty for demand of dowry. She had told that her husband loved her, which is against the statement of PW-1 and FIR. In the FIR the complainant Ram Swarup had named Kanchan Singh, Anguri Devi, Mukesh, Bablu and Raj Kumar for being unhappy with Neeraj Kumari and treating her with cruelty due to demand of dowry but nothing of this sort was stated by Neeraj Kumari in her dying-declaration Ex-K-6. On the contrary Neeraj Kumari had stated that her husband Raj Kumar loved her very much and never showed anger with her. It appears that after admitting Neeraj Kumari in medical college hospital, Aligarh, complainant Ram Swarup had some afterthought motives due to which he has lodged FIR for many persons but till that time he had no information as to what actually was stated by Neeraj Kumari in her dying-declaration. Time of burning of Neeraj Kumar is not proved, but it appears that she was burnt any time on 22.6.2008 (as mentioned in dying-declaration) or any other time and after that she admitted in Khurja Hospital from where she was taken to Medical College Hospital, Aligarh. During this period Neeraj Kumari had consultation with the complainant Raj Kumar and due to which dying-declaration was given by Neeraj Kumari because of her father. PW-7 has stated that she was conscious and alert at the time of dying-declaration. At that time victim Neeraj Kumari appears to have confidence that she would not die from the burn injuries (which were about 42%). This fact was proved by Dr. Mohd. Sahjane Niyamat, (PW-9). It is admitted fact that before dying-declaration, she was in company of her father Ram Swarup. During cross-examination Ram Swarup had admitted that husband Raj Kumar had accompanied with Neeraj in Khurja Hospital. He had also admitted that Raj Kumar had accompanied with Neeraj Kumari in Medical College Hospital, Aligarh and from signatures of husband Raj Kumar, Neeraj Kumari was admitted there. He also admitted that Raj Kumar initiated treatment of Neeraj Kumari in Khurja hospital, and also that got the victim admitted in Aligarh Medical College hospital. PW-1 also admitted that Raj Kumar remained there in medical college hospital for some days, then he had asked Raj Kumar to arrange money for treatment of Neeraj Kumari. Thereafter Raj Kumar went from there on pretext of arrangement of money and did not come back nor sent money. PW-1 had admitted that when Raj Kumar had not come back after going from hospital and had not sent money so he lodged report against him in which Raj Kumar's sister and brother in law were also named. This facts clearly indicate that from the time of burning till sometime after admission and treatment of Neeraj Kumari in medical college hospital, Aligarh the husband Raj Kumar was there and was taking care of her. From statement of PW-1 Ram Swarup it appears that when treatment of Neeraj Kumari had become expansive and financial problem arose and Raj Kumar had not arranged money then he had lodged report against Raj Kumar and his family members. It is also admitted by PW-1 that he had never visited Ram Singh Bada, Khurja, house of Raj Kumar. No witness had ever seen appellants in Khurja at any point of time neither there is any such evidence. Therefore prosecution case about alleged taking of Neeraj Kumari from mohalla Ram Singh Bara by complainant to Khurja Hospital has been proved wrong. It is proved from available evidence that Raj Kumar had started treatment of Neeraj Kumari in Khurja Government Hospital from where on advice of complainant, he had taken her to Medical College Hospital, Aligarh where during treatment the statement of Neeraj Kumari was recorded. Had Neeraj Kumari stated anything to complainant about alleged burning by appellants in Khurja, complainant would have lodged FIR then and there in Khurja, but this was not done. Problem arose when she was taken to Medical College Hospital, Aligarh for her treatment and due to financial problem when Raj Kumar was unable to bear expenses of treatment in Medical College Hospital, Aligarh he left the place and Neeraj Kumari remained there with her father Ram Swarup and after that her statement/ dying-declaration was recorded. At time of said statement Neeraj Kumari was conscious and no apprehension of death. During this period, as per doctor, Neeraj Kumari was conscious and mentally alert, therefore, this possibility cannot be ruled out that her alleged dying-declaratory statement had came under influence of her father Ram Swarup. Since she was mentally alert and conscious on 25.6.2008 and her condition was not bad so that she may speculate her death so there is every probability that she would have given her statement on 25.6.2008 before the Magistrate under influence of her father, the complainant, who was dissatisfied with his son-in-law due to non arrangement of money for treatment of Neeraj Kumar by him. From available evidences it is proved that at the time of recording of her statement dated25.06.2008, which is alleged dying-declaration, victim was conscious enough to know that there was no threat to her life, and she had no apprehension of her death. In fact there is evidence to the effect that neither her burn injury was such as to give her apprehension of death nor doctors at Khurja found them such that the death may be possible. That is why they had not resorted for dying-declaration. But when she was taken to Aligarh police was informed in a routine manner and said statement dated 25.06.2008 of victim was recorded. Even after that there was no threat to her life. But she died after about one and a half moth of her burning, because due to financial reasons her treatment was stopped and she was removed from hospital without consent of the doctors.

31.In ruling Shudhakar v. State of M.P., (2012) 7 SCC 569 Hon'ble Apex Court had held :

"20. The "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement."

32.In 'Bhajju v. State of M.P., (2012) 4 SCC 327' Hon'ble Supreme Court had held :

"23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.

24. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence."

33.The theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the victim is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. In case of dying-declaration a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying-declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons.

34.But in present case the trial Court had not considered anything like this. It appears that since the statement of victim was recorded as 'dying-declaration' so the learned Sessions Judge accepted it as gospel truth, ignoring that all other prosecution version and evidences had been proved wrong. Learned Sessions Judge had not even considered that most of the facts mentioned in alleged 'dying-declaration' has not only been not supported by evidences but had been proved incorrect. The real cause of death was not discussed or appreciated by trial Court in the circumstances when there was considerable delay between burning and death, and in between this period lapse in treatment was committed. Even it was not considered as to whether author of the apprehension alleged 'dying-declaration' had any serious or real apprehension of death at the time of making it on 25.06.2008 and whether she had been expecting her survival or not. Thus it is explicitly clear that the trial Court had failed to apply its judicial mind at the time of relying on it and had acted with material error and irregularity.

35.So far as cause of death is concerned, the prosecution case in this regard has not been proved. Prosecution case is that after alleged burning on 24.6.2008 Neeraj Kumari was admitted in Medical College Hospital, Aligarh on 24.6.2008 and remained there till 8.8.2008, that is, till time of her death; and she had died in Medical College Hospital, Aligarh during treatment. But PW-2 Raj Pal had specifically stated during his cross-examination that Neeraj Kumari remained in Medical College Hospital, Aligarh for 20-25 days. During this period much money had spend so she was taken back to home, but when her condition deteriorated then she was again sent to Medical College Hospital, Aligarh where she died on the same day of her admission. PW-2 had admitted that during this period Neeraj Kumari remained at his parental house for 15-20 days. He had denied the suggestion that Neeraj Kumari had died due to slackness in treatment and negligence in her care. Even PW-3 Vijai Pal, who is real brother of deceased and son of the complainant had stated specifically in his cross examination that after 25-26 days in Aligarh Hospital Neeraj Kumar was taken to the house where she remained for few days and when her condition deteriorated she was again taken to Medical College Hospital, Aligarh but she died before the visit of doctor. He had also denied the suggestion that Neeraj Kumari died at his house and was taken to hospital in dead stage. This fact was proved by deposition of doctors. But the factum of Neeraj Kumari being taken off from treatment without permission of doctors and being kept at complainant's house without any evidence of proper treatment is a proof of the fact that when victim was kept in her parental house without treatment for sufficient time then her injuries must have become sceptic that may have resulted in her death. PW-4 Dr. Sudhir Kumar Verma conducted the post-morten of deceased Neeraj Kumari on 9.8.2008 at about 5 pm and prepared post-mortem report Ex-K-2, who had stated that he had found that Neeraj Kumari died about 24 hours earlier to that. At that time she had 42% burn injury. PW-4 had stated that in confidential memo he had noted that body of Neeraj Kumari was 'brought dead'; which means Neeraj Kumari was brought in hospital in dead condition. She had died before coming to hospital. PW-11 Dr. Naresh Kumar had also stated that he was posted as CMO, JN Medical College Hospital, Aligarh on 8.8.2008 and on that date body of Neeraj Kumari was brought in hospital at 6.50 pm. On examination of her body she was found already dead then matter was reported to police through information Ex-K-15. These facts lead to believable conclusion that at the time of recording of dying-declaratory statement on 25.6.2008, that is about one and half month earlier to her death she had no apprehension of her death, therefore under infuence of her father, the complainant, she had given statement before the Magistrate in hospital on 25.6.2008; but actually she had died at her parental house due to slackness and negligence in her treatment.

36.The above mentioned facts it is proved that Neeraj Kumari caught fire and was burnt any time probably on 22.06.2008 at her husband's house where she was treated, then she was admitted on 24.6.2008 in Medical College Hospital, Aligarh by her husband. At that time she came in contact of her father namely Ram Swarup, complainant. After sometime financial problem arose as her husband Raj Kumar accused was unable to bear the expenses of her treatment and he left her with Ram Swarup and gone for arrangement of money. Then Ram Swarup had also financial problem so instead of continuing treatment of his daughter, he had taken her to his house where she remained for several days, at least 15-20 days, without any proper medical treatment and care. During this period the condition of Neeraj Kumari deteriorated and she died while living with her father Ram Swarup; then her dead body was brought to Medical College Hospital, Aligarh on 8.8.2008, and her post-mortem was conducted on 9.8.2008. When her dead body was in hospital, then PW-11 doctor had sent confidential memo to police which is proved in this confidential memo Ex-Ka-15 in which Doctor had noted when she bought dead with old burnt case. Even in post mortem report Ex-Ka-2 the PW-4 Dr. Sudhir Kumar Verma has noted the cause of death as "death is due to septic shock as result of out waist burn injury". In post-mortem report there is mention of 42% septical burn on the part of abdomen, chest and left thigh and right thigh and some other parts of the body. These facts support this contention of learned counsel for the appellants that Neeraj Kumari had sustained some burn injuries on any time and later on she was admitted in Medical College Hospital, Aligarh, from where she was taken to her parental house by Ram Swarup, complainant because of financial inconveniences, but no proper treatment was carried there at home, so she died on 8.8.2008 at her parental house due to deteriorated septic condition of her burn injuries. Then from there she was taken to Medical College Hospital, Aligarh on 8.8.2008. Thus these contention of learned counsel for the appellants cannot be disbelieved that cause of death of Neeraj Kumari was neither due to inflicted of burn injury for demand of dowry nor it was solely because of burn injuries, but it is due to serious negligence in her treatment and complainant had taken her from hospital to his house and kept there without any treatment, so her burn injuries became septic due to which she had died.

37.On the basis of above discussions, we are of the considered opinion that in the present case cause of death of Neeraj Kumari was mainly due to grave, almost criminal negligence in her treatment and she died due to septic shock of earlier burn injuries.

38.It is not believable that her in-laws, the appellants, who used to live about 100 kms away from her residence at Khurja came to her house only for burning because she had not given them grand child, especially when their son used to love and had very good relation with her wife (victim). Therefore there was no occasion or motive for appellants to burn their daughter-in-law without consent of their son. In these circumstances, when no one had given evidence in Court who had ever seen the appellants in Khurja. The only evidence regarding their presence in Khurja is alleged dying-declaration, which was recorded when she had no expectation of her death. On 25.6.2008 at the time of statement she was left for long with her father till 8.8.2008 and died due to negligence in taking care of her injuries.

39.We are also of the considered opinion that dying-declaration statement of deceased was recorded at the time when was not expecting any apprehension relating to her death and was mentally alert and in conscious stage, but was under influence and advice of her biased father when she gave her allegedly dying declaratory statement on 25.06.2008 before Magistrate. These facts were not discussed and considered by learned Additional Sessions Judge at the time of passing of the impugned judgment. The learned Trial Court had lightly taken the statement of Neeraj Kumari as dying-declaration and convicted the appellants on that ground alone without considering the evidences, facts and circumstances. Facts, circumstances and evidences do not inspire confidence in believability of such statement. Therefore such statement cannot be made sole basis of conviction. Therefore judgment of conviction of learned Court below, without considering these facts, is apparently erroneously, unsupported by suitable evidence and cannot sustain.

40.For the reasons discussed above, this appeal is allowed. The judgment of conviction of appellants for charge under section 302/34 IPC in S.T. No. 297 of 2009 (State Vs. Raj Kumar and four others) registered as case crime no. 655 of 2008, p.s. Khurja Nagar, district Bulandshahr is set aside and the appellants are acquitted from the charge of offence punishable under section 302/34 IPC. The appellants be released forthwith from custody of this case. Accordingly release order be sent to jail concerned as well as to Sessions Judge, Bulandshahr for ensuring compliance.

Order Date :- 05.05.2015

Sanjeev