Pintu & Another vs State Of U.P.
2015 Latest Caselaw 2623 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
	       	            Judgment reserved on : 10.9.2015                   
 
				      Judgment delivered on : 24.9.2015.
 

 
Case :- CRIMINAL APPEAL No. - 7204 of 2011
 

 
Appellant :- Pintu & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Babu Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
		CONNECTED WITH 
 

 
Case :- CRIMINAL APPEAL No. - 6966 of 2011
 

 
Appellant :- Ravindra Gupta And Anr.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Babu Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
			AND
 

 
Case :- CRIMINAL APPEAL No. - 7203 of 2011
 

 
Appellant :- Mukesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Babu Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Om Prakash-VII,J.

1. All the three aforementioned connected appeals have been filed against the judgment and order dated 26.11.2011 passed by Additional Sessions Judge, Court No.8, Budaun in Sessions Trial No.702 of 2010 (State Vs. Mukesh and others) arising out of case crime no.143 of 2009 under Sections 498-A, 304-B, 302 of the Indian Penal Code (In Short 'IPC') and Section 3/4 Dowry Prohibition Act, Police Station Hajratpur, District Budaun.

2. Since these appeals have been heard together, as such they are being decided by a common judgment and order.

3. Accused-appellants Mukesh, Pintu, Poonam, Ravindra Gupta and Smt. Kamla were convicted under Section 498-A IPC and were sentenced to undergo two years rigorous imprisonment and a fine of Rs.5000/- each and in default of payment of fine, six months additional imprisonment was ordered. They were also convicted for the offence under section 4 Dowry Prohibition Act and were sentenced to undergo one year rigorous imprisonment and a fine of Rs.5000/- each and in default of payment of fine, they have to undergo six months additional imprisonment. Accused-appellants Mukesh, Pintu and Smt. Poonam were also convicted under section 304-B IPC and were sentenced to undergo ten years rigorous imprisonment. All the sentences were directed to run concurrently.

4. The prosecution story, as unfolded in the first information report, in brief are as under.

The informant Mahesh Chand Gupta (P.W.1) son of Komal Ram resident of village Nawada, P.S. Jaitipur, District Shahjahanpur gave a written report (Ex.Ka.-1) at P.S. Hazratpur, District Budaun that two years back the informant performed the marriage of his daughter Sushma with Mukesh son of Ravindra resident of village Pipra, P.S. Hazratpur, District Budaun according to hindu rites and rituals. According to his status, he spent a sum of Rs.2.5 lacs on marriage. When his daughter reached her matrimonial home, her husband Mukesh, mother-in-law Kamla Devi, father-in-law Ravindra, jeth Pintu and jethani Poonam started harassing her daughter on account of demand of dowry. When the informant visited her matrimonial home for vidai ceremony, her daughter narrated the entire episode and told that her in-laws were demanding Rs.1 lac and a motorcycle as dowry. When the informant tried to pacify the matter with her in-laws', they remained adamant on their demand and used to extend cruelty and harassment to his daughter. Lal Bahadur Gupta, the brother-in-law (sala) of the informant and Shivam Gupta, son of the informant along with Shyamcharan Gupta again visited her in-laws' place to conciliate the matter, but the accused persons were adamant on their demand. On 28.5.2009 at 9:30 P.M., her husband Mukesh, mother-in-law Kamla Devi, father-in-law Ravindra, jeth Pintu and jethani Poonam all of them poured kerosene oil on the daughter of the informant and set her ablaze. When his daughter screamed, then Lal Bahadur, Shivom and Sanjeev of village Pipla reached there and saw that Mukesh has tightened the hands of his daughter and her mother-in-law Kamla Devi, father-in-law Ravindra, Jeth Pintu and Jethani Poonam standing nearby were saying to Mukesh that today Sushma should not be spared, she shall be set on fire. The information of this incident was given by Sanjeev Kumar Gupta resident of village Pipla to the informant, on which the informant reached village Pipla, managed the vehicle and took his daughter to Ishan Hospital, Bareilly for treatment from where she was shifted to Saran Hospital for better treatment. On the advice of the doctor, the informant admitted his daughter in the District Hospital, Bareilly, where, during treatment, his daughter Sushma died on 23.6.2009. After performing the last rites and rituals of his daughter, the informant came to the police station to lodge the F.I.R.

5. On the basis of written report, case was registered at police station concerned on 27.6.2009 at 18:45 hours through chick F.I.R. (Ex.Ka.6) and G.D. Entry was also made in this regard.

6. Deceased (injured) was initially medically examined on 29.5.2009 at 1:30 A.M. at District Hospital, Budaun and injury report (Ex. Ka.-2) was prepared, in which it was mentioned that the injured (deceased) was brought by her husband Mukesh and the following injuries were found on her body :

"Superficial to deep burns present on whole of neck, upper limbs, chest, abdomen and back and some parts of face, head and lower limbs. No smell of kerosene oil was present. Scalp hair of back burnt. Skin peeled off at places."

In the opinion of the doctor, about 70% burn injury was present over the body. The injury was caused by dry head burns. Duration was fresh about 4 - 5 hours.

7. Doctor referred the deceased for better treatment to District Hospital, Bareilly where she took her last breath on 23.6.2009 during treatment. Information regarding death of the deceased was sent to the local police, who prepared the inquest report and other police papers. Keeping the dead body in a sealed cloth, it was sent for postmortem to district mortuary.

8. The postmortem on the body of the deceased Sushma Gupta was conducted by P.W.7 Dr. S.K. Sagar on 24.6.2009 at 4:50 P.M. Time of death in the postmortem report was shown as 10:40 A.M. on 23.6.2009. The deceased was of average built. Eyes and mouth were partially opened. Rigor mortis was present. No sign of decomposition was present. Dr. S.K Sagar (P.W.7), who conducted the postmortem, found the following ante mortem injuries on the body of the deceased :

"First to third degree burn injuries, infected, present on the whole chest, abdomen, whole back, neck and cheeks. Anterior aspect of mid thighs, both sides legs, mid of leg and both feet."

On internal examination, membranes and brain were congested. Lungs were congested. Pus was present on cutting the lungs. Right part of heart was full and left part was empty. Peritoneum was congested. 50 ml. of fluid water was found in the stomach. Fluid and gases were present in small intestines and faecal matter and gases were found in last intestines.

In the opinion of the doctor, cause of death was due to septicemia as a result of ante mortem burn injuries. Doctor, after conducting the postmortem, prepared the postmortem report Ex.Ka-3.

9. The investigating officer visited the place of occurrence and prepared the site plan. He also recorded the statements of the witnesses under section 161 Cr.P.C.

10. During treatment, on 4.6.2009, dying declaration of the deceased was also recorded by P.W.10 Ratnakar Mishra, Naib Tehsildar, Tehsil Sadar, Bareilly. After completing the formalities, the investigating officer submitted the charge sheet against the accused-persons.

11. The case being exclusively triable by the Court of Sessions was committed to the Court of Sessions.

12. Accused persons appeared before the Court and charges were framed against them for the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act. Again on 11.3.2011, alternative charge under section 302 IPC was also framed against all the accused persons. The accused-persons denied from the charges and pleaded themselves innocent and claimed their trial.

13. In order to prove its case, prosecution examined as many as ten witnesses. Out of them, P.W.1 Mahesh Chandra Gupta is the informant and father of the deceased, P.W.2 Shashi alias Neetu is the mother of the deceased, P.W.3 Shiv Om, the brother of the deceased, P.W.4 Sanjeev Kumar Gupta, the Sadoo (husband of the sister of informant's wife) and P.W.5 Lal Bahadur. Here it is pertinent to mention that all the prosecution witnesses named above were declared hostile.

Prosecution has also examined P.W.6 Dr. Sudhakar Agarwal, E.M.O., District Hospital, Budaun, who initially examined the injured (deceased) and noted the injuries found on her body, P.W.7 Dr. S.K. Sagar, who performed autopsy on the body of the deceased, P.W.8 Chandra Sen Gautam, the then Circle Officer, Dataganj, P.W.9 H.C.P 46 Mahendra Pal Singh, the scribe of the F.I.R and P.W.10 Ratnakar Mishra, Naib Tehsildar, who recorded the dying declaration of the deceased.

14. After closure of the prosecution evidence, statements under section 313 Cr.P.C. of the accused-persons were recorded in which they stated the prosecution evidence to be false and pleaded that the prosecution launched against them on the basis of false facts.

15. No documentary or oral evidence was adduced by the prosecution. The trial Court, after hearing the parties, vide impugned judgment and order, convicted and sentenced the accused-appellants. Hence, this Appeal.

16. I have heard Sri Ram Babu Sharma, learned counsel for the appellants, Sri Zafeer Ahmad, learned A.G.A. for the State and perused the record.

17. Submission of the learned counsel for the appellants is that prosecution could not prove its case beyond reasonable doubt. All the witnesses of fact examined on behalf the prosecution have not supported the prosecution story. They were declared hostile. There is no evidence to connect the appellants with the present offence. The trial Court only on the basis of dying declaration, drawn the presumption under section 113-B of the Evidence Act. It was further submitted that the dying declaration, said to have been recorded on 4.6.2009, can not be relied upon, as the cause of death shown in the dying declaration is not supported from the medical evidence. It was further argued that husband of the deceased himself received injuries in the said incident. No injuries, said to have been caused by the other accused-appellants, were found on the body of the deceased, which also creates doubt in the prosecution story. In fact, the deceased received burn injuries while she was cooking food. If the appellants poured kerosene oil over the body of the deceased, certainly the doctor, who examined the deceased on the very same day of the incident, would have found the smell of kerosene oil. It was further submitted that there is no any persistent demand made by the appellants regarding dowry and also there is no evidence regarding cruelty, harassment for or in connection with demand of dowry which be taken to be caused soon before the death of the deceased. Thus, the prosecution could not connect the appellants with the cause of the death of the deceased.

18. On the other hand, learned A.G.A. argued that the witnesses, who turned hostile, themselves have admitted that the deceased died within seven years of her marriage. Death of the deceased is due to burn injuries and the same is not accidental or natural. Therefore, burden lies on the accused-appellants to explain that under what circumstances she received burn injuries. The burden was not discharged by the accused-appellants. The trial Court, placing reliance upon the dying declaration of the deceased, has rightly convicted and sentenced the accused-appellants. The findings recorded by the trial Court are in accordance with evidence and law.

19. I have considered the rival submissions made by the learned counsel for the parties and have also gone through the entire record carefully.

20. In this matter, offence is said to have been committed on 28.5.2009 in the night at 9:30 P.M. Allegation is that the accused-appellants poured kerosene oil over the body of the deceased and set her ablaze. She received burn injuries and was admitted in the hospital. She died on 23.6.2009 due to septicemia as a result of burn injuries. It is also the case of the prosecution that the deceased, during treatment, had made a dying declaration on 4.6.2009, which was recorded by P.W.10 Ratnakar Mishra, the Naib Tehsildar. Prosecution witnesses i.e. P.W. 1 Mahesh Chandra Gupta, P.W.2 Shashi alias Neetu, P.W.3 Shiv Om, P.W.4 Sanjeev Kumar Gupta and P.W.5 Lal Bahadur have not supported the prosecution case. The trial Court convicted the accused-appellants Mukesh, Pintu and Smt. Poonam for the offence under sections 304-B IPC, 498-A IPC and 4 Dowry Prohibition Act and accused-appellants Ravindra Gupta and Smt. Kamla for the offence under sections 498-A IPC and 4 Dowry Prohibition Act on the basis of dying declaration made by the deceased.

21. Doctor, who examined the deceased at initial stage at District Hospital, Budaun, admitted that he examined the deceased on 29.5.2009 in the night at 1:30 A.M. and she was brought by her husband Mukesh - the accused-appellant. He found deep burn injuries over the body of the deceased, but he did not find any smell of kerosene oil. Skin was peeled off at different parts of the body. Doctor opined that the burn injuries were the result of dry fire and she suffered about 70% burn injuries and duration of injuries was about 4 to 5 hours. He also admitted that no other injuries, except the burn injuries, were found on the body of the deceased. P.W.7 Dr. S.K. Sagar, who performed the autopsy on the body of the deceased, clearly opined that the deceased died due to septicemia as a result of ante mortem burn injuries. He also not found any other injury except the burn injuries on the person of the deceased. P.W.1 Mahesh Chandra Gupta, P.W.2 Shashi @ Neetu wife of Mahesh Chandra Gupta, P.W.3 Shiv Om son of Mahesh Chandra Gupta, P.W.4 Sanjiv Kumar Gupta all have stated that the deceased died within seven years of her marriage. It is also established from the prosecution evidence that the deceased received burn injuries in the house of the accused-appellants. Prosecution has to establish all the essential ingredients to attract the offences under sections 498-A and 304-B IPC, then and then only presumption under section 113-B of the Evidence Act could be drawn.

22. In the instant case, the father, mother and the brother of the deceased have not supported the prosecution case regarding the demand of dowry, cruelty, harassment caused to the deceased, but they have supported the prosecution case to the extent that death of the deceased occurred within seven years of her marriage. Medical evidence clearly suggests that the death of the deceased is due to burn injuries. Thus, the two essential ingredients, as required, for drawing the presumption of dowry death were established by the prosecution from the statements of P.W.1, P.W.2 and P.W.3 itself. The submission of the learned counsel for the appellants is that these witnesses were declared hostile, therefore, inference drawn on the basis of their statements is illegal. I am not in agreement with the submission of learned counsel for the appellants. It is the settle legal principle that if any fact stated by the prosecution witnesses, who were declared hostile, is supported from any other evidence, the same can be taken into consideration in the matter.

23. As has been mentioned here-in-above that the dying declaration of the deceased was recorded on 4.6.2009. The trial Court has convicted and sentenced the accused-appellants on the basis of said dying declaration, therefore, it is to be seen whether the findings recorded by the trial Court are in accordance with law.

24. Now the law is settled on this issue that a conviction can be held solely on the basis of dying declaration, if it inspires confidence and is free from any pressure, advice, threat, tutoring etc. Court dealing with the matter has to see the physical and mental condition of the deceased for giving the dying declaration. If the dying declaration is recorded in question-answer format, it could be safely relied on. Even if the dying declaration is not recorded in question-answer format, the same could also be relied on.

25. Here I would refer to the following case laws on this point :

Satish Chandra and Another Versus State of Madhya Pradesh, (2014) 6 Supreme Court Cases 723, relevant paragraph of which is quoted below.

"34. Simply because the statement is not recorded in the form of questions and answers, is no reason to discard it once. It is otherwise found to be trustworthy and can be treated as the dying declaration admissible under Section 32 of the Evidence Act. No doubt, it is emphasised by this Court that recording of such a statement in the form of question and answer is more appropriate method which should generally be resorted to. However, that would not mean that if such a statement otherwise meets all the requirements of Section 32 and is found to be worthy of credence, it is to be rejected only on the ground that it was not recorded in the form of questions and answers. As pointed out above, all the requisite precautions were taken before recording the statement by the Executive Magistrate (P.W.2). It has come on record that Sunita remained conscious even after concluding her statement and during the period when her statement was being recorded, certificate to this effect was also obtained by P.W.2."

In Umakant and Another Versus State of Chhattisgarh, (2014) 7 Supreme Court Cases 405, the Hon'ble Supreme Court has held in paragraph 22 as under.

"22. The legal position about the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Government of NCT of Delhi - 2010 (9) SCC 1, taking into consideration the earlier judgments of this Court in Paniben v. State of Gujarat - 1992 (2) SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamilnadu - 2008 (17) SCC 190 has given certain guidelines while considering a dying declaration:

(i) Dying declaration can be the sole basis of conviction if it inspires full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) 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 corroborative. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmities, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration."

26. Before dealing with this situation, I would also refer to the dying declaration said to have been made by the deceased, which is as follows :

e`R;q iwoZ c;ku Jherh lq"kek [email protected] eqds'k vk;q yxHkx 23 o"kZ fu0 xzk0 ihiyk Fkkuk] gtjriqj cnka;wA

"eSa ;g c;ku djrh gWw fd esjs 'kknh dks 6 tqykbZ dks nks o"kZ gks tk,xsA 'kknh ds nks eghus ckn ls gh esjh lkl vkSj vU; ?kj okys ,d yk[k :i;s dh eakx djus yxsA esjs ek;ds okyksa ds ikl bruk iSlk ugha FkkA ugha fn;k x;kA blh dkj.k ls eq>s izrkfM+r djrs jgrs gSaA o`gLifrokj dh jkr dks] fiNyh o`gLifrokj dh jkr dks esjs llqj] tsB] lkl vkSj tsBkuh eq>s ekjus yxsA ,d yk[k :i;s ds fy, ekjus yxsA esjs tsB fiUVw us esjs mij rsy fNM+dk vkSj tsBkuh iwue us vkx yxk fn;kA ftl le; eq>s ekj&ihVk tk jgk Fkk] ml oDr esjs ifr vakxu esa cSBs FksA esjs ifr eq>s ekjrs ugha Fks] ysfdu cpkrs Hkh ugh FksA vkx yxkus ds ckn eSa Hkkxdj vius ifr ds mij fxj xbZA blds ckn eq>s gks'k ugaha jgkA ;g c;ku eSa gks'kks&gok'k esa fcuk fdlh ncko dss ns jgh gWwA"""

c;ku lqudj rLnhd fd;kA

27. P.W.10, Ratnakar Mishra, the Naib Tehsildar, who recorded the aforesaid dying declaration of the deceased, stated that before recording the dying declaration, doctor certified the physical and mental condition of the deceased and thereafter he recorded the statement of the deceased. In his cross-examination, this witness stated that the doctor, who certified the physical and mental condition of the deceased, was remained present during the entire period when the dying declaration was being recorded. Besides the doctor, there were no other person present there, even the family members. He also admitted that oath was not administered to her at that time. Trial Court finding on this point is that the deceased was in a fit condition to speak at the time of recording the dying declaration and P.W.10, the concerned Naib Tehsildar has obtained the certificate before recording the statement and the same is not tutored or recorded under pressure. It may be noted here that the dying declaration was recorded following the procedure prescribed under the law and there is no requirement under the law to administer oath to a person of whom the statement in the form of dying declaration is being recorded. Thus, the submission raised by the learned counsel for the appellants in this respect is not acceptable. The dying declaration is free from any suspicion and the trial Court has rightly placed reliance on it. The deceased died thereafter on 23.6.2009. Though there is a gap between the date on which the dying declaration was recorded and the death of the deceased, but this fact is not sufficient to discard the veracity or truthfulness of the dying declaration.

28. So far as the delay in lodging the first information report is concerned, offence is said to have been committed on 28.5.2009, deceased died on 23.6.2009 and the first information report was lodged on 27.6.2009. The informant himself has mentioned in the first information report that after performing the last rites and rituals of his daughter, he reported the matter at the police station concerned. If the entire evidence adducted in the matter are minutely analyzed, then it emerges that the deceased was under treatment from the date of offence. The informant and his family members were also busy in the treatment of the deceased. It is probable and believable that during the period of treatment, they would have not thought to lodge the first information report regarding the incident. The priority of the informant was to save the life of his daughter. When the deceased could not survive, then after doing the last rites and rituals, the informant lodged the first information report. Thus, the delay in lodging the first information report has been properly and satisfactorily explained by the informant. The trial Court finding on this point is correct and requires no interference.

29. Now the question is that on the basis of said dying declaration, whether all the appellants could be held guilty for committing the offence, as has been held by the trial Court.

30. If the contents of the dying declaration are minutely perused, the deceased has not stated anything regarding direct involvement of the accused-appellant Mukesh in committing the present offence. It is apparent from the dying declaration itself that when the accused-appellant Pintu, who is the jeth of the deceased, poured oil on the deceased and the other accused-appellant Smt. Poonam, jethani of the deceased, set her ablaze and at that time, accused-appellant Mukesh, who is the husband of the deceased, was sitting in the courtyard. Deceased specifically stated in her dying declaration that her husband never beat her, but he never tried to save her. The trial Court held guilty to the accused-appellant Mukesh on the basis that he was duty bound to save the life of his wife (the deceased). Since he remained silent and did not respond, therefore, implied participation of the accused-appellant Mukesh appeared in the matter. It is worth mentioning here that the witnesses of fact have not supported the prosecution case. There is only dying declaration of the deceased. Deceased has not uttered anything about demand of dowry, cruelty, harassment, beating, maltreatment etc. against her husband Mukesh, therefore, in my considered opinion, presumption drawn by the trial Court on the basis of maintaining silence, keeping mum and non-responding of the accused-appellant Mukesh is illegal and is not tenable. Accused-appellant Mukesh cannot be held guilty when there is no any proximate live link of the demand of dowry, harassment, cruelty, maltreatment caused to the deceased with the death against the accused-appellant Mukesh. Thus, the finding recorded by the trial Court holding guilty of the accused-appellant Mukesh is not liable to be sustainable for the offence under sections 304-B IPC, 498-A IPC and 4 Dowry Prohibition Act.

31. As far as finding recorded by the trial Court regarding conviction and sentence of the accused-appellant Smt. Poonam and Pintu is concerned, the deceased in her dying declaration (Ex.Ka.-14) clearly stated that Pintu poured oil over the body and Poonam set her afire. The submission of the learned counsel for the appellants is that the doctor, who examined the deceased at initial stage and the doctor who performed the autopsy of the deceased, have clearly opined that no smell of kerosene oil was found coming out from the body of the deceased. The trial Court finding is that there were 70% burn injuries on the body of the deceased. If the argument advanced is taken into consideration, then 70% burn injuries could only come when the deceased suffered burn injuries inside the room and the door of the room was bolted and there was no occasion for the deceased to come out from the room.

32. As far as the opinion expressed by the doctor regarding absence of smell of kerosene oil from the body of the deceased is concerned, inflammable liquid was poured by the accused-appellant Pintu over the body of the deceased. Whatever the deceased perceived, she stated in the dying declaration. It might be possible that some other sort of inflammable liquid would have been used by the accused. Only on this score, the finding of the trial Court could not be turned down. Date and time of the injuries are clearly supported by the medical evidence. Medical evidence also supports this fact that the deceased received 70% burn injuries. The accused-appellant Mukesh himself has admitted that he also received burn injuries in the said incident. The deceased in the dying declaration stated that when her jethani Smt. Poonam set her afire, she ran and fell on her husband and thereafter she became unconscious. If this is the factual situation, then the finding recorded by the trial Court on this point cannot be said to be illegal or perverse. The deceased received burn injuries in the said incident caused by the accused-appellants Poonam and Pintu. There is clear evidence that these two accused-appellants used to cause cruelty, harassment and maltreatment to the deceased in regard to demand of dowry. The submission of the learned counsel for the appellants that except on the date of incident, there is no evidence that the deceased was subjected to cruelty and harassment prior to the incident. Therefore, the essential ingredients to constitute the offence under section 304-B IPC are not attracted in the matter.

33. This Court, after close analysis of the finding of the trial Court and the dying declaration of the deceased and the submission of the learned counsel for the appellants, is of the opinion that the cruelty and harassment caused by the accused-appellants comes under the purview of cruelty and harassment caused for or in connection to demand of dowry soon before her death. No straight jacket formula has been laid down by the legislature to fix the time gap between the cruelty based on demand and death, as has been held by the Hon'ble Supreme Court in the case of Sultan Singh Versus State of Haryana (2014) 14 Supreme Court Cases 664.

34. Thus, finding recorded by the trial Court regarding guilt of the accused-appellants Pintu and Poonam for the offence under sections 304-B IPC, 498-A IPC and 4 Dowry Prohibition Act need no interference. These two accused-appellants were involved in demand of dowry, cruelty and harassment caused to the deceased.

35. So far as the conviction of the accused-appellants Ravindra Gupta and Smt. Kamla is concerned, they have been convicted and sentenced for the offence under sections 498-A IPC and 4 Dowry Prohibition Act. There is only evidence of the dying declaration of the deceased. Deceased had made statement that her mother-in-law and other family members were making demand of Rs.1 lac after the marriage and they were causing harassment to her in this regard. She also stated that in the night of Thursday, her father-in-law, jeth, mother-in-law and jethani were beating her. Doctor, who examined the deceased at initial stage, did not find any injury on the body except the burn injuries, which occurred on 28.5.2009.

36. If the facts regarding involvement of these two appellants stated by the deceased in her dying declaration are taken into consideration, when the doctor did not find any injury on the body of the deceased caused by these appellants and there is general allegation against them, this Court is of the view that conviction of these two appellants on the strength of averment made in the dying declaration only is not safe and both these appellants i.e. Ravindra Gupta and Smt. Kamla are liable to be acquitted for the charges under sections 498-A IPC and 4 Dowry Prohibition Act.

37. Thus, on the basis of foregoing discussions, the criminal appeal no. 7203 of 2011 filed on behalf of the appellant Mukesh as well as criminal appeal no.6966 of 2011 filed on behalf of the appellants Ravindra Gupta and Smt. Kamla, having merit, deserve to be allowed and accordingly both the appeals are allowed whereas the criminal appeal no.7204 of 2011 filed on behalf of the accused-appellants Pintu and Smt. Poonam, has no merit, and is accordingly dismissed.

38. The conviction and sentence imposed upon the appellant Mukesh by the trial Court under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act and the conviction and sentence imposed upon the appellants Ravindra Gupta and Smt. Kamla by the trial Court under Section 498-A IPC and Section 4 of the Dowry Prohibition Act are liable to be set-aside and are hereby set-aside. Appellants Mukesh, Ravindra Gupta and Smt. Kamla are acquitted from the charges levelled against them, as above.

Appellant Mukesh is in jail, he be set at liberty forthwith if not required in connection with any other case.

So far as appellants Ravindra Gupta and Smt. Kamla are concerned, they are already on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability.

39. The conviction and sentence of accused-appellants Pintu and Smt. Poonam held by the trial Court under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act is affirmed. As the accused-appellants Pintu and Smt. Poonam are in jail, they shall serve out the remaining period of their sentence.

40. The record of the trial Court along with copy of the judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

Dated : 24th September, 2015.

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