Krishna Gopal Bajpai @ Gopal ... vs State Of U.P.
2017 Latest Caselaw 4171 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- CRIMINAL APPEAL No. - 615 of 1998
 

 
Appellant :- Krishna Gopal Bajpai @ Gopal Krishna
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.P.Pathak,Gopesh Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. Instant criminal appeal has been filed against the judgment and order dated 17.11.1998 passed by First Additional Sessions Judge, Raebareli, in Sessions Trial No.312 of 1989 - State v. Krishna Gopal Bajpai and others, whereby and whereunder accused/appellants Krishna Gopal Bajpai alias Gopal Krishna, Smt. Vidyawati Devi and Raghvendra Kumar Bajpai were found guilty and were sentenced to undergo rigorous imprisonment for a period of two years under Section 498-A IPC and ten years' rigorous imprisonment under Section 304-B IPC. Both the sentenced were directed to run concurrently.

2. Brief facts giving rise to filing of the present criminal appeal are that one Smt. Sarla, sister of the complainant Surendra Kumar Misra, was married to accused/appellant Raghvendra Kumar Bajpai in the year 1986. Accused/appellants Krishna Gopal Bajpai and Smt. Vidyawati are father and mother of appellant Raghvendra Kumar Bajpai while Shailendra Kumar, Yadvendra Kumar and Maya, who have been acquitted by the learned trial court, are brothers and sister of accused/appellant Raghvendra Kumar Bajpai. It is reported that on 28.04.1989, Sarla was injured due to fire while she was working in the kitchen. She was admitted in the hospital and her treatment was done by Dr. A.K. Singhal but unfortunately she could not be saved and expired at about 01.35 AM on 29.04.1989 . The complainant Surendra Kumar Misra communicated the police station by means of Ext. Ka-1 that the husband and his family members were continuously demanding dowry and for non-fulfillment of demand of dowry, they caused dowry death. On the basis of this information, a case was registered against all the accused/appellants including brothers and sister and after investigation charge sheet was submitted against all persons including the present appellants. The accused persons were summoned before the Court and charges were levelled against them for which they pleaded not guilty and claimed for trial.

3. In order to prove the prosecution case, PW-1 Surendra Kumar Misra, PW-2 Saral Singh, PW-3 Smt. Sarvesh Misra, PW-4 Dr. R.K. Gupta, PW-5 Dr. A.K. Singhal, PW-6 Constable Bhragun Prasad and PW-7 D.K. Rai, Investigating Officer, were examined.

4. In the statement recorded under Section 313 Cr.P.C., the accused/appellants had stated that they have been falsely implicated in this case. There was neither any demand of dowry nor any injury was caused on the body of the deceased. It was an accidental death due to fire in the kitchen while the deceased was cooking food. It was also narrated in defence that dying declaration was recorded by the Executive Magistrate in which the deceased had stated that her clothes caught fire due to which she got injured. The doctor had given fitness certificate. The dying declaration Ext. Kha-3, the fitness certificate Ext.Kha-1, medical report of Shailendra Kumar who had come to rescue the deceased and got injured during the fire Ext. Kha-2 and the envelop sent by Tehsildar Magistrate who had recorded the dying declaration of the deceased Ext. Kha-4 were also placed before the Court.

5. In defence, Sri Ram Prasad Verma, Tehsildar Magistrate, was examined as DW-1 and Ram Kumar Soni was examined as DW-2.

6. In order to appreciate the evidence and the facts of the case, it would be necessary to narrate the injuries found on the body of the deceased. It is admitted case that there was superficial burn injuries which were on the part of the body of the deceased and the cause of death as narrated by PW-4 Dr. R.K. Gupta was burning. Dr. A.K. Singhal was examined as PW-5, who had stated that he had also examined the injuries found on the body of Shailendra Kumar, brother of husband of the deceased and found burn injuries 16 cm x 8 cm in the right hand side in the middle part and also septic burn injuries 18 cm x 6.5 cm in the area in the left hand with blackening. There was also burn injuries on the face of Shailendra Kumar.

7. Learned counsel for the appellants has submitted that the deceased was cooking food in the kitchen. Her clothes caught fire and the brother of the husband of the deceased Shailendra Kumar came to rescue because at that point of time he was sitting at the door and he immediately tried to save her by means of available things and covering her body through blanket or other clothes. For this purpose, PW-7 Dy. Superintendent of Police was examined before the Court who had stated that after recording the statement of the complainant he approached on the spot with SI Girish Chandra Tiwari, who prepared map and found three quilts (Rajai) and half burnt carpet. It is submitted by learned counsel for the appellants that by means of all three quilts and carpet, Shailendra Kumar tried to save the deceased and they immediately took her to the hospital for medical treatment. PW-7 had further stated that he had also recorded the statement of R.P. Verma, the then Telsildar Magistrate, who had recorded the statement of the deceased. Mr. R.P. Verma, the then Tehsildar Magistrate was examined as DW-1, who had stated on oath that on 28.04.1989 he was posted as Tehsildar Magistrate Raebareli and at about 09.02 PM he was communicated to immediately rush to the hospital for recording the statement of one burnt person and after reaching there, he, in the presence of the doctor and after his certificate that the person is in a fit condition to give statement, had recorded her statement in which she had narrated that she was cooking food and her clothes caught fire due to which she got injured. He had further stated that the fitness certificate was given by Dr. A.K. Singhal and the statement was recorded in his presence. The statement Ext. Kha-2 finds the impression of the deceased. He had further stated that the dying declaration with medical certificate was kept in an envelop Ext. Kha-1 and was sent to Superintendent of Police. He had further submitted that the name of the person making the statement and her address were written on the envelop which was exhibited as Ext. Kha-4. The witness was cross examined who had stated that he had verified the name of the person with bed register and by the indication of the doctor who was present there. Mr. R.P. Verma, the then Tehsildar Magistrate had further stated that he had not seen as to whether there was any other injury on her face or not.

8. Learned counsel for the State has submitted that if the person making the statement was not in a fit condition of making any declaration, it cannot be treated as a dying declaration and cannot be acted upon.

9. The Executive Magistrate/Tehsildar Magistrate, who was deputed to record the statement had stated that she was in a fit state of mind to give statement and it was certified by the then doctor present there. Dr. A.K. Singhal was examined as PW-5, who had stated that on 28.04.1989, he was posted as Emergency Medical Officer in District Hospital Raebareli and examined the injuries found on the body of Sarla and there were burn injuries of third degree and there was dehydration and the injuries were caused due to burn. He had proved Ext. Ka-5. He had further stated that in his presence Tehsildar Magistrate had visited the spot for recording dying declaration and after perusal of the certificate and dying declaration, he had stated that he had given fitness certificate before the Magistrate that the injured was in a fit condition to make a statement and Ext. Kha1, dying declaration, was recorded before him which bears his signature. He had further stated that he had also examined Shailendra Kumar Bajpai and there were burn injuries on his body. He had also proved injury report of Shailendra Kumar Bajpai as Ext. Kha-2. The witness was cross examined in which he had stated that what he is stating on oath is based on documentary evidence and since there is a certificate of dying declaration with regard to fitness of her mind in the presence of Tehsildar Magistrate, the statement was given on the basis of records.

10. Now, the question is relevancy of dying declaration. Dealing with the relevancy of dying declaration, Hon'ble the Apex Court in the case of Laxman v. State of Maharashtra reported in MANU/SC/0707/2002 has held as follows:-

"3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a Rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

11. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:

22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the 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 corroborated. 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 infirmity 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 eyewitness 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 true and 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 the basis of conviction, even if there is no corroboration.

12. The dying declaration given by the deceased disclosing therein about the manner in which she got burn injuries could not be disbelieved. Specially when such dying declaration has been recorded in the presence of doctor, who certified the mental state and condition of deceased to give statement before and after recording the dying declaration by a Magistrate. It has been recorded by the independent person. The rejection of such dying declaration by the trial court on the ground that deceased died after 8 days and she was not in critical condition when dying declaration was recorded, is not proper. Moreover suppression of this material evidence, admittedly available with prosecution, creates serious doubt about the prosecution story and an adverse inference is bound to be drawn against the prosecution.

13. Learned counsel for the appellants relying upon the judgement of the Apex court in Kishan Lal Vs. State of Rajasthan, (2000) 1 SCC 310 , has submitted that the Supreme Court discussed the manner of appreciating evidence of dying declaration in the light of English law and Indian Law and held that in Indian law there is no legal necessity before accepting a dying declaration that it should be recorded when maker of it was in imminent danger of death or expecting his death.

14. On the contrary, learned counsel appearing for the State submitted that there is ample evidence on record to disbelieve the dying declaration recorded and relied upon the judgement of the Hon'ble Supreme Court reported in Sudhakar Vs. State of Maharastra,(2012) 7 SCC 569 and Devinder Alias Kala Ram and others Vs.State of Haryana, 2012)10 SCC763. It was further submitted that it is the privilege of the prosecution to adduce evidence in support of its case. Neither court nor accused could insist prosecution to produce the evidence which the prosecution does not want to adduce.

26. Before dealing with the aforesaid questions for consideration, this court must keep in mind the cautions which were reminded from time to time by the Apex Court in dealing with the criminal cases based on dying declaration.

27. It is settled principle of law that prosecution has to prove its case beyond all reasonable doubt while the defence has to prove its case on the touchstone of preponderance and probabilities as held in Sudhakar Vs. State of Maharastra,(2012) 7 SCC 569 .

28. Prosecution should not conceal the facts which were in its knowledge or collected during investigation that could materially effects the issue under consideration of the court to arrive at a truth. If prosecution concealed such fact an adverse inference should have been drawn under section 114 of Indian Evidence Act .

29. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted, as held in Mohanlal Gangaram Gehani vs. State of Maharashtra ,AIR 1982 SC 839.

30. In Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310, Apex Court has examined the principle of evaluation of dying declaration in para 18 at page 315 of the judgement:

"18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given of course depending on other relevant facts and circumstances of the case."

31. In Chirra Shivraj v. State of A.P., (2010) 14 SCC 444, the Hon'ble Supreme Court expressed a caution that 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 and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.

32. In Shudhakar v. State of M.P., (2012) 7 SCC 569 the Hon'ble Supreme Court dealing with the situation of multiple dying declaration has held at page 581 :

"21.Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters."

33. In Lakhan vs. State Of M.P.,(2010) 8 SCC 514 the Apex Court provided clarity, not only to the law of dying declarations, but also to the question as to which of the dying declarations has to be preferably relied upon by the court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under: (SCC pp. 518-19 , paras 9-10)

"9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means ''a man will not meet his Maker with a lie in his mouth'. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as ''the Evidence Act') as an exception to the general rule contained in Section of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.

10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.{Vide Khushal Rao v. State of Bombay, AIR1958 SC 22, Rasheed Beg v. State of M.P. (1974) 4 SCC 264, K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618, State of Maharashtra v. Krishnamurti Laxmipati Naidu,1980 Supp SCC455, Uka Ram v. State of Rajasthan,(2001) 5 SCC 254, Babulal v. State of M.P.,(2003) 12 SCC 490, Muthu Kutty v. State,(2005) 9 SCC 113 State of Rajasthan v. Wakteng,(2007) 14 SCC 550,and Sharda v. State of Rajasthan,(2010) 2 SCC 85.}"

34. In Nallam Veera Stayanandam v. Public Prosecutor, (2004) SCC 10 SCC 769, the Supreme Court, while declining to accept the findings of the trial court, held that the trial court had erred because in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit so as to appreciate its evidenciary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.

35. Tested on the anvil of the aforesaid authorities, this Court is of the view that there is no reason to disregard the dying declaration. The dying declaration has been certified by the doctor attending the patient that the person making the statement was in a fitness of mind. The law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition that he/she could not have made a dying declaration to a witness, there is no justification to disregard the same. Learned court below has not relied the dying declaration only on the basis that the prosecution had not produced this document before the court and it was placed before the court by the defence. It is settled proposition of law that the prosecution should place the facts before the court with all evidence, oral or documentary, and if it was not placed before the Court, it is the duty of the Court to summon that record and even if that was not summoned, the defence has every right to disclose this fact and produce in defence. The recording of dying declaration by the Tehsildar Magistrate on the fitness certification of the doctor is a public document recorded by a person authorized to record it and was sent to the authorities concerned in official duty.

36. Learned counsel for the State has submitted that the case is covered by the provisions contained in Section 306 IPC.

37. The next aspect which is required to be addressed is whether Section 306 Indian Penal Code gets attracted. Submission of the learned Counsel for the Appellant is that even assuming the allegation is accepted to have been proved, it would not come within the ambit and scope of Section 306 Indian Penal Code as there is no abetment.

38. Section 306 Indian Penal Code reads as under:

Section 306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

39. The word 'abetment' has not been explained in Section 306 Indian Penal Code. In this context, the definition of abetment as provided Under Section 107 Indian Penal Code is pertinent. Secton 306 Indian Penal Code seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element. Such a requirement can be perceived from the reading of Section 107 Indian Penal Code. Section 107 Indian Penal Code reads as under:

Section 107. Abetment of a thing.--A person abets the doing of a thing, who--

First. -- Instigates any person to do that thing; or

Secondly. --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. -- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration-- A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

"Abetment", thus, means certain amount of active suggestion or support to do the act.

40. Analysing the concept of "abetment" as found in Section 107 Indian Penal Code, a two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of Delhi) MANU/SC/1453/2009 : (2009) 16 SCC 605 has held:

13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence Under Section 306 Indian Penal Code.

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15. As per Clause Firstly in the said section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in Indian Penal Code. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhattisgarh MANU/SC/0654/2001 : (2001) 9 SCC 618.

In the said authority, the learned Judges have referred to the pronouncement in Ramesh Kumar v. State of Chhattisgarh.

41. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or may be by (implied) conduct.

42. The word "urge forwards" means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to "goad" or "urge forward" the latter with the intention to provoke, incite or encourage the doing of an act with a latter. In order to prove abetment, it must be shown that the Accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as "abetment".

43. Analysing further, in Randhir Singh and Anr. v. State of Punjab MANU/SC/0881/2004 : (2004) 13 SCC 129, the Court has observed thus:

12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence Under Section 306 Indian Penal Code.

[emphasis supplied]

44. In Praveen Pradhan v. State of Uttaranchal and Anr. MANU/SC/0812/2012 : (2012) 9 SCC 734, it has been ruled:

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. ...

[emphasis is ours]

45. In Amalendu Pal alias Jhantu v. State of West Bengal MANU/SC/1808/2009 : (2010) 1 SCC 707, the Court, after referring to the authorities in Randhir Singh (supra), Kishori Lal v. State of M.P. MANU/SC/7815/2007 : (2007) 10 SCC 797 and Kishangiri Mangalgiri Goswami v. State of Gujarat MANU/SC/0096/2009 : (2009) 4 SCC 52, has held:

12. Thus, this Court has consistently taken the view that before holding an Accused guilty of an offence Under Section 306 Indian Penal Code, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the Accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.

46. A two-Judge Bench in Netai Dutta v. State of W.B. MANU/SC/0165/2005 : (2005) 2 SCC 659, while dwelling the concept of abetment Under Section 107 Indian Penal Code especially in the context of suicide note, observed:

6. In the suicide note, except referring to the name of the Appellant at two places, there is no reference of any act or incidence whereby the Appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the Appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from the suicide note, there is no allegation made by the complainant that the Appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the Appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the Appellant. The prosecution initiated against the Appellant would only result in sheer harassment to the Appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the first information report against the Appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the Appellant herein. We find that this is a fit case where the extraordinary power Under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the Appellant and accordingly allow the appeal.

47. At this juncture, I think it appropriate to reproduce two paragraphs from Chitresh Kumar Chopra (supra). They are:

16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the Accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

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19. As observed in Ramesh Kumar (supra), where the Accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the Accused abetted commission of suicide by a person, it has to be established that:

(i) the Accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the Accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

This Court again observed:

20. ... The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.

48. The offence of "dowry death" was incorporated in the Indian Penal Code and corresponding amendment made in the Evidence Act by way of insertion of Section 113B vide Act No. 43 of 1986. In fact the Dowry Prohibition Act, 1961 being Act No. 28 of 1961 was enacted on 20th May, 1961 with an object to prohibit to giving or taking the dowry. The insertion of Section 304B of the Indian Penal Code and Section 113B in the Evidence Act besides other circumstances was also referable to the 91st Report dated 10th August, 1983 of the Law Commission. In the Statement of Objects and Reasons to Act No. 28 of 1961 it was stated:

The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time enures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament, Hence, the present Bill.

Realising the ever increasing and disturbing proportions of the evil of dowry system, the Act was again amended by Act No. 63 of 1984 taking note of the observations of the Committee on Status of Women in India and with a view to making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity, the Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth in its proceedings and after noting the observations of Pt. Jawaharlal Nehru, recommended to examine the working of Act No. 28 of 1961 and after considering the comments received on the Report from the State Governments, Union Territories, Administrations and different administrative Ministries of the Union concerned with the matter, decided to modify the original definition of "dowry" with consequential amendment in the Act. Again finding that the Dowry Prohibition Act, 1961 has not been so deterrent, as it was expected to be, the Parliament made amendments in the Act vide Act No. 43 of 1986. In the Statement of Objects and Reasons of the said Act it was stated:

The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act 1984 to give effect to certain recommendations of the Joint Committee of the House of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women's voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amended.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:

(a) The minimum punishment for taking or abetting the taking of dowry under Section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.

(c) The statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(f) Provisions has also been made for appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the CrPC, 1973 and in the Indian Evidence Act, 182 have also been proposed.

3. The Bill seeks to achieve the aforesaid objects.

49. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

50. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr. Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were riot admissible in evidence on account of intervening period between the date of making the statement and her death.

51. Section 32 of the Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in Sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. The phrase "circumstances of the transaction" were considered and explained in Pakala Naraycma Swami v. Emperor MANU/PR/0001/1939:

The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular persons, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "registered". Circumstances must have some proximate relation to the actual occurrence; though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant's) death comes into question.

52. The death referred to in Section 32(1) of the Evidence Act includes suicidal besides homicidal death. Fazal AH, J. in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984 : 1984CriLJ1738 after referring to the decisions of this Court in Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952 : 1953CriLJ129 , Dhararnbir Singh v. State of Punjab [Criminal Appeal No. 98 of 1958, decided on November 4, 1958], Ratan Gond v. State of Bihar MANU/SC/0054/1958 : 1959CriLJ108 , Pakala Narayana Swami (supra), Shiv Kumar v. State of Uttar Pradesh [Criminal Appeal No. 55 of 1966, decided on July 29, 1966], Mannohar Lai v. State of Punjab 1981 Crl. LJ 1373 (P&H).

53. In Onkar v. State of Madhya Pradesh 1974 Crl. LJ 1200 while following the decision of the Privy Council in Pakala Narayana Swami case, the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by Section 32 of the Evidence Act thus:

The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused.... Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.

54. In Allijan Munshi v. State MANU/MH/0095/1960:(1959)61BOMLR1620 the Bombay High Curt has taken a similar view.

55. In Chinnavalayan v. State of Madras 1959 Mad LJ 246 two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances' observed thus:

The special circumstances permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstances permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as (I) that the statement must be made after the transaction has taken place, (2) that the person making it must be at any rate near death, (3) that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.

Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English Law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of Section 32, viz., "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State MANU/PH/0137/1960 where the following observations were made;

Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead...are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question.... It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under Expectation of death.

In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.

Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:

(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

56. In Ratan Singh v. State of Himachal Pradesh MANU/SC/0177/1997 : 1997CriLJ833 this Court held that the expression "circumstances of transaction which resulted in his death" mean that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstance can become admissible if it has nexus with the transaction which resulted in death. Relying upon Sharad Birdhichand Sarda's case (supra) the Court held that:

It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.

57. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long before the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances sowing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be soon before death' if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

58. No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned Counsel for the respondents on Sham Lai v. State of Haryana 1997(9) SCC 579 is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which Panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a Panchayat was shown to have held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end.

59. Learned counsel for the appellants has submitted that the material evidence was suppressed by the Investigating Officer to falsely implicate the accused/appellants and in this way true facts were not recorded during the investigation and it can be said that it was a faulty investigation.

60. It is an admitted fact that the dying declaration recorded by the Executive Magistrate was in the knowledge of Investigating Officer and he has not submitted the report on the basis of it. Later on investigation was entrusted to another I.O, who was also aware about it as admitted by him during his examination in court as PW7. But despite of it he did not make any efforts to know the genuineness and correctness of dying declaration recorded by the Executive Magistrate/Tehsildar. Why he did so could not be properly explained and submitted charge sheet on the basis of oral evidence. This shows that prosecution wilfully suppressed the material piece of evidence from the court.

61. The Apex Court in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, at page 183 and 192 in para 35 and 56 has observed :

"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice -- often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."

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"56. As pithily stated in Jennison v. Baker8: (All ER p. 1006d)

"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003)7 SCC 749)"

62. It is true that in case of suppression of evidence from Court an adverse inference should have been drawn against the party concerned but at the same time Courts should not only act on presumption under section 114 of Evidence Act but also examine the suppressed material and its evidentiary value before coming to a definite opinion with a view whether suppressed evidence materially effect the case of such party which suppressed the evidence. Therefore this Court is under an obligation to see whether the suppressed dying declaration recorded by Executive Magistrate/ Tehsildar can be used for any purpose either for strengthening the prosecution case or to rebut the presumption under section 113-B of Evidence Act by the appellants.

63. It is not in dispute that Executive Magistrate recorded the dying declaration of the deceased after taking certificate of the doctor attending her in hospital, regarding her mental and physical condition to give statement. These certificates have been obtained before and after recording dying declaration as is evident from the dying declaration mentioned herein above.

64. The prosecution has not come with the case that dying declaration was an outcome of tutoring or undue influence of in-laws or has been obtained by other means. If the prosecution would have come with specific case that dying declaration so recorded was based on tutoring or undue influence of in-laws or otherwise obtained, the matter would be viewed with such angle and in different way. But here in this case prosecution virtually suppressed this first dying declaration recorded by the Executive Magistrate after obtaining certificate of mental and physical fitness . The prosecution did not rely upon it because the deceased had not given statement involving any of the appellants for causing her death. It was virtually suppressed with a view to seek conviction of the appellants on the basis of other alleged oral dying declarations. It was in the knowledge of the prosecution, was not denied by the I.O. On the basis of the dying declaration of the deceased, a closer report was also submitted by the police to his high ups during investigation of this case.

65. In view of the above facts and circumstances of the case the prosecution cannot take any advantage of this dying declaration rather it demolished the whole prosecution story. The prosecution did not take any plea or adduce any evidence that this dying declaration is procured or tutored one.

66. The Apex court in Devendar alias Kalaram and others Vs. State of Haryana, (2012 )10 SCC 763 found that accused has rebutted the presumption under section 113-B of Indian Evidence Act on the basis of fact that the deceased stated to the Doctor that fire caught her while preparing tea on stove. In this case the evidence of Doctor examining the deceased in hospital was to the effect that patient (deceased) herself told that she sustained burn injuries while cooking meal on stove. This statement of the deceased was found to be relevant under section 32(1) of Indian Evidence Act and the presumption under section 113-B of the Indian Evidence Act thus, found rebutted and accused persons were given benefit of it and acquitted under the charges levelled against them under section 304B IPC.

67. In a recent judgement the Apex Court in Vipin Jaiswal Vs. State of Andhra Pradesh (2013) 3 SCC 684 held that after relying upon suicide note produced by the accused and proved to be written in hand of the deceased, exonerated the accused from charges. In the suicide note, the deceased mentioned that no body is responsible for her death and her parents and family members have harassed much to her husband, therefore, she is taking this steps as she is fed up with her life. In the light of this judgement the Court observed that the accused has successfully rebutted the presumption under section 113-B of the Indian Evidence Act and prosecution has failed to establish necessary ingredients of section 498A IPC and 304B IPC and held in Para 16 of the judgement reproduced herein below:-

"16. In our considered opinion, the evidence of DW1(the appellant) and Ext. D- 19 casts a reasonable doubt on the prosecution story that deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on prosecution to prove beyond reasonable doubt the ingredient of section-498-A IPC and essential ingredients of offence under section 498-A IPC is that the accused, as a husband of the deceased, has subjected her to cruelty as defined in the explanation to section 498-A IPC. Similarly, for the Court to draw the presumption under section 113-B IPC of the Evidence Act that the appellant had caused dowry death as defined in Section 304-B IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of cruelty, neither of the offences under section 498-A IPC and 304-B IPC has been made out by the prosecution."

As such in the case in hand in view of first dying declaration recorded by the Executive Magistrate, which was found to be truthful, reliable and admissible in evidence. The reason assigned by the trial court to reject this dying declaration is not sustainable .

68. When this Court examined the prosecution witnesses then the Court found that PW-1 Surendra Kumar had only narrated that the amount fixed for band in the marriage amounting to Rs.1300/- was not paid by the husband side and on communication by the complainant it was paid by the husband side later on. The complainant has taken the plea that this was a case of demand of dowry. In ordinary practice and behaviour it is not a demand of dowry. An amount of Rs.1300/- was to be paid to Bandwala. It is not directly affecting anybody. Thus, it is no ground to prove the case of demand of dowry. There was another incident when a demand of Rs.10,000/- was made by the accused Raghvendra which were never paid.

69. Learned counsel for the appellants has stated that this is a false story and there was no occasion to demand such amount nor it was paid by the complainant side.

70. Another version has been stated by the State that the information of incident was not communicated to the complainant while learned counsel for the appellants has stated that the same was communicated to the family members of the complainant through Ram Kumar Soni, who was examined as DW-2, who had stated that when he visited in the hospital after the incident, Krishna Gopal Bajpai gave him a letter to handover to Surendra Mishra and he gave it to one Panwala near the house of the complainant with communication that this should be handed over to the complainant.

71. During whole examination of the prosecution witnesses, PW-1 had never narrated that deceased ever communicated him for demand of any dowry or any incident of harassment. Similarly, PW-2 Saral Singh, who is neighbour of the complainant had communicated only the incident of payment of Rs.1,000/- or 1300/- to Bandwala, which has already been discussed that it is not a matter of demand of dowry. This witness has no direct knowledge with regard to any demand of dowry or any harassment. Cross examination was made to the effect that who was responsible to pay the amount of Bandwala but this has no relevancy at all because it depends upon mutual understanding and even if it is not paid by the bride side, it is obligatory to be paid by the groom side and if it is paid by either side, it can never be said to be a demand of dowry. PW-3 Sarvesh Mishra wife of the complainant was examined to the effect that at one point of time Raghvendra Kumar Bajpai, accused/appellant, had demanded Rs.3000/- while the complainant has stated that the demand was of Rs.10000/- and that was for engagement in any work. Thus, there is a contradiction on the point of amount and that too was never paid by the complainant. PW-7 D.K. Rai, Superintendent of Police, was examined as Investigating Officer who had stated that during recording of statement under Section 161 Cr.P.C., the complainant had not narrated him that his sister had ever communicated him about complain from husband side.

72. Learned court below while discussing all the evidence had not relied upon the dying declaration only on the basis that there was no credible evidence that the person making the statement was in a fit condition while doctor and Executive Magistrate who were persons responsible for recording the statement and giving fitness certificate had stated on oath that the declarant was in a fit state of mind and her statement was recorded in which she had stated that the incident had taken place while she was cooking. There is evidence on record that Shailendra, one of the accused during trial who happens to be the brother of the husband of the deceased, immediately rushed for rescue of the deceased, who also suffered burn injuries in the same incident. Three quilts and carpet were recovered from the place of incident which were said to be used to save the deceased. In light of above facts the fact that there was demand of dowry is not found proved beyond all reasonable doubts. The presumption under Section 113-B of the Indian Evidence Act can be raised only on the condition where there is evidence of demand of dowry and harassment. Both the aforesaid ingredients are lacking in this case. There is statement of the deceased to the effect that she got burn injuries while she was cooking. Considering all these relevant facts the charges that there was demand of dowry or dowry death are not proved. Further there is no charge neither evidence that she committed suicide. Three accused persons during trial were acquitted from the charges levelled against them on the ground that demand of dowry was not found proved against them.

73. Considering all discussed above this Court is of the view that the prosecution has not been able to prove the case beyond all reasonable doubts. Even if presumption is drawn, it is rebuttable and the defence has rebutted the presumptions by aid of dying declaration recorded by the Executive Magistrate with the fitness certificate of the doctor and the circumstances by saving the deceased by one of the accused who also suffered burn injuries and got injured. Thus, this Court is of the view that judgment and order dated 17.11.1998 passed by learned court below is erroneous and is not based on the evidence on record. Dying declaration of the deceased has not been taken into consideration and the statements of the witnesses have not been correctly appreciated. Thus, this appeal deserves to be allowed and is hereby allowed. Conviction and sentence passed against the appellants is set-aside.

74. During pendency of this appeal, appellant Krishna Gopal Bajpai @ Gopal Krishna died and thus his appeal stood abated vide order dated 20.07.2016.

75. Appellants Smt. Vidyawati Devi and Raghvendra Kumar Bajpai are on bail. Their bail is cancelled and sureties discharged.

76. Office is directed to send a copy of this order to the court concerned for compliance and also to send back the lower court's record.

Order Date :- 11.9.2017

A. Katiyar