Fakir Chandra & Another vs State Of U.P.
2018 Latest Caselaw 1738 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 4
 
Case :- CRIMINAL APPEAL No. - 3251 of 2016
 
Appellant :- Fakir Chandra & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Surendra Nath Tripathi,Ali Hasan,Ashok Gupta
 
Counsel for Respondent :- G.A.
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 3524 of 2016
 
Appellant :- Raghuveer
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Surendra Nath Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana, J. 

Hon'ble Mrs. Vijay Lakshmi, J.

Heard learned counsel for the appellants and learned A. G. A. for the State.

These two criminal appeals have been filed by Fakir Chandra and Smt. Rammurti, appellants in Criminal Appeal No. 3251 of 2016 and Raghuvir, appellant in Criminal Appeal No. 3524 of 2016 against the judgement and order dated 27.5.2016 passed by the Additional Sessions Judge, Fast Track Court No. 1, Rampur in S. T. No. 12 of 2013; State Versus Fakir Chandra and two others, arising out of Case Crime No.1353 of 2011, under Sections- 498A, 304B and 307 I. P. C. and Sections-3/4 of D. P. Act by which the appellants have been convicted and sentenced to imprisonment for life u/s 302/34 I.P.C.

Briefly stated facts of this case are that marriage between

Renu, D/o the first informant, Smt. Kusum, widow of late Dara Singh, R/o Gram-Mathurapur Kalan, P. S.-Patwai, District-Rampur was solemnized with one Bhagwat Saran, S/o Fakirchandra, R/o Dolsar Matwali, P. S.-Palwai, District-Rampur about two years before the occurrence, which had taken place on 3.11.2011, according to Hindu rites and customs. P. W. 1 informant Smt. Kusum had given sufficient dowry at the time of marriage of her daughter comprising of Splendour Motorcycle, coloured television, fridge, ornaments and Rs. 1,00,000/- in cash. The attitude of her husband and his relatives towards her daughter remained normal for sometime after the marriage. In the interregnum, she gave birth to a male child, who was about eight months old on the date of incident. Thereafter her husband, Bhagwat Saran, father-in-law Fakirchandra, mother-in-law Smt. Rammurti, brother-in-law (jeth) Raghubir, sister-in-law (jethani) Maldei and sister-in-law (nanad) Kusum started demanding Rs. 50,000/- cash and one buffalo as additional dowry. Her daughter communicated their demands, on which P. W. 1 informant Smt. Kusum tried to make her daughter understand that she was not in a position to fulfil the additional demands of dowry and that with the passage of time, things will normalise and she then sent her daughter back to her matrimonial home but there was no change in the attitude of her husband and his relatives and they started torturing her daughter for non-fulfilment of the demands of additional dowry. Informant's daughter Renu informed her on 1.11.2011 that her husband and his other relatives were threatening her with dire consequences in case, their demands were not fulfilled. She again expressed her inability to fulfil their demands. On 3.11.2011, his son-in-law and his other relatives informed him that her daughter had received burn injuries at about 12.00 hours mid-night and she was being taken to Sadar Hospital,

Rampur. On receiving the aforesaid information, P. W. 1 informant Smt. Kusum reached Sadar Hospital, Rampur along with her relatives and when she enquired from her daughter about how she had received burn injuries, she told her that her husband, Bhagwat Saran, father-in-law Fakir Chandra, mother-in-law Smt. Rammurti, brother-in-law (jeth) Raghubir, sister-in-law (jethani) Maldei and sister-in-law (nanad) Kusum on account of non-fulfilment of additional demands of dowry had set her ablaze after pouring kerosene oil on her.

Narrating the aforesaid facts, P. W. 1 informant Smt. Kusum gave a written report (Ext. Ka 1) at P. S.-Palwai, District-Rampur on 6.11.2011 at about 7.50 A. M. on the basis of which, Case Crime No. 1353 of 2011 under Sections-498A, 304B and 307 I. P. C. and Sections-3/4 of D. P. Act was registered against the deceased's husband Bhagwat Saran, father-in-law Fakir Chandra, mother-in-law Smt. Rammurti, brother-in-law (jeth) Raghubir, sister-in-law (jethani) Maldei and sister-in-law (nanad) Kusum. Chek F. I. R. Ext. Ka 10 and the corresponding G. D. entry vide rapat No. 13, dated 6.11.2011 (Ext. Ka 11) were prepared by P. W. 6 Rajendra Singh. The deceased Renu was examined by P. W. 11 Dr. Arvind Kumar on 6.11.2011 at 8.37 P. M. in the emergency ward of District Hospital, Rampur. Considering her serious condition, she was referred for specialized treatment to higher centre. From 3.11.2011 to 4.11.2011, she remained under treatment there and when she showed signs of improvement, on 5.11.2011 she was admitted in Ishan Hospital, Bareilly at 11.10 P. M. where she died during treatment on 6.11.2011 at about 12.30 A. M. Information about her death was sent to P. S.-Kotwali, Bareilly. After the death of Renu, P. W. 1 informant Smt. Kusum gave another written application (Ext. Ka 2) to S. H. O., P. S.-Palwai, district-Rampur on 9.11.2011 reiterating the facts narrated by her in her written report (Ext. Ka 1) with the addition that her daughter had died as a result of the burn injuries received by her in her matrimonial home on 2.11.2011.

It is noteworthy that pursuant to the F. I. R. registered at P. S.-Palwai, district-Rampur on the basis of the written report given by P. W. 1 informant Smt. Kusum at the same police station on 3.11.2011, the investigation had already commenced and the Investigating Officer after inspecting the place of occurrence, had prepared the site plan of the place of occurrence and recorded the statements of the deceased Renu and her husband Bhagwat Saran and P. W. 1 informant Smt. Kusum. On the basis of the application dated 9.11.2011 (Ext. Ka 2), the case was converted from 307 IPC to 304 B I. P. C. Dying declaration of the deceased was also recorded on 3.11.2011 (Ext. Ka 13). The inquest on the body of the deceased was conducted by P. W. 4 Ajai Kumar Upadhyay at Ishan Hospital, Bareilly in the night of 6.11.2011. The inquest report (Ext. Ka 3) and other related documents namely letter addressed to R. I., police form 13, photo lash, letter addressed to C. M. O. and specimen seal (Ext. Ka 8), were written by P. W. 7 Murari Lal Verma on the dictation of P. W. 4 Ajai Kumar Upadhyay. Thereafter the dead body of the Renu was sealed and dispatched through Constable 576 Arvind Singh and Home Guard 299 Awadesh Kumar for post mortem. Post mortem on the dead body of Renu was conducted by P. W. 5 Dr. Surendra Kumar Johry on 6.11.2011 at 4.00 P. M. who also prepared her post mortem report (Ext. Ka 9). After the case was converted to one under Section 304 B I. P. C., investigation thereof was entrusted to P. W. 8 Circle Orficer, Anil Kumar Yadav who after completing the investigation, submitted charge-sheet against the appellants before the C. J. M., Rampur. Since the offences mentioned in the chargesheet were triable exclusively by the Court of Sessions, C. J. M., Rampur committed the accused for trial to the Court of Sessions Judge, Rampur where it was registered as S. T. No. 12 of 2013; State Versus Fakir Chandra and two others and made over for trial from there to the Court of Additional Sessions Judge, Fast Track Court No. 1, Rampur who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as defence framed charge under Sections-498A, 304 B I. P. C. and Sections-3/4 of D. P. Act. On 21.10.2015 additional charge was framed against all the appellants under Sections-302/34 I. P. C. The accused-appellants abjured the charge and claimed trial.

The prosecution in order to prove its case examined as many as thirteen witnesses of whom P. W. 1 Informant Smt. Kusum, mother of the deceased Renu, P. W. 2 Shanker Dayal, brother of the deceased Renu and P. W. 3 Karan Singh, maternal uncle of the deceased were produced as witnesses of fact while P. W. 4 Ajai Kumar Upadhyay who had conducted the inquest and prepared the inquest report and other related documents, P. W. 5 Dr. Surendra Kumar who had conducted the post mortem on the dead body of Renu and prepared her post mortem report (Ext. Ka 9), P. W. 6 Rajendra Singh who had prepared the chek F. I. R. and corresponding G. D. entry and proved the same as Ext. Ka 10, P. W. 7 Murari Lal Verma who had scribed the inquest report and other related papers on the dictation of P. W. 4 Ajai Kumar Upadhyay, P. W. 8 C. O. Anil Kumar Yadav, the second I. O. of the case, who after completing the investigation had filed charge-sheet against the appellants, P. W. 9 S. I. Ravi Prakash, the first I. O. of the case who had investigated the case from 6.11.2011 to 9.11.2011, P. W. 10 Ram Bharose who had recorded the dying declaration of the deceased Renu on 3.11.2011, P. W. 11 Dr. Arvind Kumar who had examined the burn injuries received by Renu on 1.11.2011 in the emergency ward of District Hospital, Rampur and advised her to be shifted to a hospital having facilities of specialized treatment of burn injuries, P. W. 12 Dr. Mohd. Ahmad who had certified that the deceased at the time of recording of her dying declaration was in a fit mental condition and P. W. 13 Dr. Kaushal Kumar who had treated the deceased in Ishan Hospital, Bareilly in his capacity as a plastic surgeon, where she had died on 6.11.2011 at about 12.30 P. M. during treatment and proved the memo of information (Ext. Ka 15) given by him to P. S.-Kotwali Bareilly about the death of Renu and the treatment chart (Ext. Ka 16) of the deceased, were examined as formal witnesses.

The appellants in their statements recorded under Section 313 Cr. P. C. denied the prosecution case and further stated that they had neither demanded any dowry from the deceased or her mother nor they had set her ablaze.

The Additional Sessions Judge, Fast Track Court No. 1, Rampur after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record both, oral as well as documentary, convicted the appellants under Section-302/34 I. P. C. and awarded the aforesaid sentences to them. The appellants were however acquitted of all the other charges.

Hence, this appeal.

Learned counsel appearing for the appellants in both the appeals has vehemently submitted that the prosecution having failed to prove the charge framed against the appellants under Section-302/34 I. P. C. by leading any cogent evidence worth of any evidence for establishing the charge under Sections-302/34 I. P. C. against the appellants except the dying declaration (Ext. Ka 13) of the deceased which neither appears to be trustworthy nor reliable, neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them under Sections-302/34 I. P. C. can be maintained. Moreover, P. W. 1 informant Smt. Kusum, mother of the deceased had failed to support the prosecution case during trial. There is no credible evidence on record showing that at the time of recording of the alleged dying declaration of the deceased, she was in a fit mental condition to give her statement. The omission on the part of P. W. 1 informant Kusum to mention about the dying declaration of the deceased in the F.I.R. although the same was lodged by her after about three days of the occurrence and after recording of the so-called dying declaration further casts a deep shadow of doubt over the genuineness and the authenticity of the deceased's dying declaration on which extensive reliance has be placed by the trial court for the purpose of convicting the appellants under Sections-302/34 I. P. C. He has lastly submitted that the findings recorded in the impugned judgement and order are based upon surmises and conjunctures rather than on any tangible evidence and the same deserve to be set-aside.

Per contra, learned A. G. A. has submitted that admittedly the deceased having received burn injuries in her matrimonial home and she in her dying declaration having categorically assigned the role of pouring kerosene oil on her to the appellant Raghuvir and that of setting her ablaze to her mother-in-law appellant Smt. Rammurti and also to her father-in-law appellant Fakirchandra and disclosed the motive for her being set ablaze in her matrimonial home by the appellants Raghuvir and Fakirchandra, it would be fallacious to argue that the recorded conviction of the appellants under Sections-302/34 I. P. C. is not based upon any reliable or trustworthy evidence. From the evidence of P. W. 10 Tehsildar Ram Bharose and P. W. 11 Dr. Arvind Kumar, it is fully established that the deceased Renu at the time of recording of her dying declaration was fully conscious and in a fit mental condition to get her dying declaration recorded and her dying declaration was recorded on 3.11.2011 in Sadar Hospital, Rampur. No suggestion was given either to P. W. 12 Dr. Mohd. Ahmad by defence counsel in his cross examination that the deceased was not in a position to give her statement after she was brought to the District Hospital, Rampur with 100% burn injuries and hence the testimony of P. W. 11 Dr. Arvind Kumar on this point goes unchallenged and it is not at all open to learned counsel for the appellants to argue before this Court that the deceased was neither mentally nor physically fit for giving her statement on 3.11.2011. Hence this appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties and perused the impugned judgement and order as well as the entire lower court record. The only question which arises for our consideration is whether the prosecution has been able to prove the charge u/s 302/34 I. P. C. against the appellants beyond all reasonable doubts or not ?

The record shows that charge under Sections-498A, 304 B I. P. C. and Sections-3/4 of D. P. Act was framed against the accused-appellants on 31.1.2013. However, on 21.10.2015 alternative charge under Sections-302/34 I. P. C. was also framed against the appellants. The learned trial Judge after critically scrutinizing the evidence on record held that the prosecution had failed to prove the charge framed against the appellants under Sections-498A, 304 B I. P. C. and Sections-3/4 of D. P. Act. However, the learned trial Judge found that on the basis of the facts deposed by the deceased in her dying declaration (Ext. Ka 13), the charge under Sections-302/34 I. P. C. stood fully proved against the appellants and accordingly after convicting the appellants under Sections-302/34 I. P. C., the trial Judge proceeded to award life sentences to each of them.

The medical evidence on record comprising of the statements of P. W. 5 Dr. Surendra Kumar who had conducted the post mortem on the body of the deceased on 6.11.2011 and prepared her post mortem report which was brought on record and proved by him as Ext. Ka 9, indicates that the deceased was of average built at the time of the post mortem. Rigor mortis was present on the upper and lower part of the dead body. There were superficial as well as deep burns on the body of the deceased except on feet and head. Entire body was burnt, burnt parts were reddish. Both the lungs of the deceased were congested and on dissection, pus oozed out. Upper jaw of the deceased had fifteen teeth while the lower jaw had fourteen teeth. 100 ml. water was present in the stomach of the deceased and the internal membrane was normal. Liver was normal, weight whereof was 1150 gms. The gall bladder of the deceased was full of gall and her spleen was congested and it weighed 110 gms. and on dissecting the kidney of the deceased, pus came out and weight whereof was 220 gms. 2.50 c.m. long dead foetus was found in her uterus. The cause of the death was stated to be septicemia due to ante mortem burn injuries. Thus from the medical evidence on record, it is proved that the death of the deceased was homicidal and not natural. As we have already noted that the prosecution in order to prove its case had examined three witnesses of fact namely P. Ws. 1, 2 and 3. However, none of them being the eye-witnesses, nothing turns upon their evidence for the purpose of examining whether the appellants were authors of the burn injuries found on the body of the deceased.

Thus, the only and most important piece of evidence left on record against the accused is the dying declaration of the deceased which was recorded by P. W. 10 Tehsildar Ram Bharose on 3.11.2011 at about 6.20 P. M. in the emergency ward of District Hospital, Rampur, which has been brought on record and proved as Ext. Ka 13.

The question which arises for our consideration in this appeal is that whether the conviction of the appellants recorded by the learned trial Judge by placing implicit reliance upon the dying declaration of the deceased can be maintained or not ?

A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentire). Matthew Arnold said, "truth sits on the lips of a dying man". 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 Indian Evidence Act, 1872 (hereinafter called as, 'Evidence Act') as an exception to the general rule contained in Section 60 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.

In Criminal Appeal no. 2297 of 2009 Lakhan Vs State of M.P. decided on 9.8.2010, the Apex Court in para-9 has held -

"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 scrutinize 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."

In para-11 of the report the Apex Court has highlighted the importance of recording of dying declaration by an Executive Magistrate in the following words:

"11. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case. [ vide Ravi Chander & Ors. v. State of Punjab, (1998) 9 SCC 303; Harjit Kaur v. State of Punjab (1999) 6 SCC 545; Koli Chunilal Savji & Anr. v. State of Gujarat, (1999) 9 SCC 562; and Vikas & Ors. v. State of Maharashtra, (2008) 2 SCC 516.]"

The Hon'ble Court summarizing the law on dying declaration has observed in para-20 as under:

"20. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

Before proceeding to examine the argument advanced by learned counsel for the appellants assailing the genuineness and authenticity of the deceased's dying declaration on the touchstone of the principles expounded by the Apex Court in its various law reports referred to hereinabove, it would be useful to reproduce the dying declaration of the deceased as hereunder:

c;ku Jherh jsuw iRuh Hkxor lju fu0 erokyh rglhy 'kkgckn ftyk jkeiqj mez 19 o"kZ us 'kiFkiwoZd c;ku fd;k esjs ikl ,d yM+dk 9 ekg dk gS esjs tsB j?kqohj us feV~Vh dk rsy Mkyk] esjh lkl jke ewfrZ us ekfpl ls vkx yxk;h gS rFkk esjs llqj us feydj vkx yxk;h gS] >xM+k jksVh idkus ij gqok gS] esjs ifr Hkxor lju us vkx cq>k;h gS] vkx fygkQ Mkydj cq>k;h Fkh] esjs ifr ds ikl eksVj lkbfdy gS esjs tsB j?kqohj us lkbZfdy eksVj ekaxh Fkh esjs euk djus ij eq>s vkx yxk nh] esjh lkal us ngst dh dksbZ ckr ekax ugh dh] vkt esjs lk;a 6 cts dk VkbZe gksxk] fnu eaxyokj dh ckr gSA

It is submitted by learned counsel for the appellants that the facts deposed by the deceased in her dying declaration run contrary to those stated by P. W. 1 informant Smt. Kusum in the first information report in which she had made sweeping allegations against the appellants as well as the other family members of the appellants including her husband Bhagwat Saran regarding demand of dowry from her by them and her maltreatment and torture by them in her matrimonial home on account of non-fulfilment of alleged demands of additional dowry and her being set ablaze by them in the matrimonial home in the intervening night of 2/3.11.2011. He has also submitted that the informant in the F. I. R. had also stated that when on receiving news about Renu having received burn injuries, she had gone to the hospital to see her daughter, she had told her that the appellants as well as her husband, sister-in-law (jethani) and sister-in-law (nanad) had set her ablaze after pouring kerosene oil on her on account of non-fulfilment of additional demands of dowry made by them. However, the dying declaration of the deceased does not refer to any allegation of demands of dowry by the appellant Fakirchandra, his son Bhagwat Saran, husband of the deceased, appellant Smt. Rammurti, mother-in-law of the deceased, Maldei, jethani of the deceased and nanad of the deceased and hence, the same does not reflect the correct and cogent description of the incident. Moreover, from the medical evidence on record, it is proved that at the time of her being brought to the District Hospital, Rampur, she was 100% burnt and in such a condition, it was not at all possible for her either to give her statement or to speak or comprehend anything. Moreover, the evidence of P. W. 10 Tehsildar Ram Bharose and P. W. 11 Dr. Arvind Kumar is wholly insufficient for establishing that the deceased at the time of recording of her dying declaration was in a fit mental condition to depose and she had given her dying declaration voluntarily without any pressure or compulsion.

The dying declaration of the deceased was recorded by P. W. 10 Ram Bharose, the then Tehsildar, Rampur, who in his evidence recorded before the trial court had categorically deposed that on 3.11.2011, he was posted as Naib Tehsildar at Sadar, Rampur and on that date, he had been ordered to go to District Hospital, Rampur where Renu had been admitted in a serious condition with burn injuries all over her body. On the order of the Tehsildar, Sadar, he reached District Hospital and recorded the dying declaration of the deceased in the presence of the doctor who was treating her. He had recorded dying declaration in her own words (verbatim) as deposed by her. He proved her dying declaration recorded on 3.11.2011 at about 6.20 P. M. in District Hospital, Rampur in the presence of the doctor treating her after obtaining his permission as Ext. Ka 13. It is noteworthy that P. W. 10 Tehsildar Ram Bharose was cross examined extensively by learned counsel for the defence during the trial. However, he failed to elicit anything out of him, which may remotely indicate that the deceased was not in a position to depose. Although a suggestion was given to him by defence counsel that the deceased after receiving burn injuries till her death, remained unconscious and as such she was not in a position to give her statement. Such suggestion was denied by him. Similarly, P. W. 12 Dr. Mohd. Ahmad, who in his evidence recorded before the trial court deposed that while he was posted as Emergency Medical Officer in district hospital, Rampur on 3.11.2011, deceased Renu, W/o Bhagwat Saran was brought to the District Hospital, Rampur in a burnt condition and since her condition was serious, it was found necessary to get her dying declaration recorded accordingly, he had sent a memo to the officer incharge of P. S.-Kotwali. Thereafter Naib Tehsildar arrived at district hospital, Rampur on the same date at about 6.20 P. M. for recording dying declaration of Renu. Renu was conscious throughout the recording of her dying declaration and she was in a position to comprehend whatever was asked from her and to give a reply after understanding the questions. He proved the certificate given by him in this regard, which was endorsed on the dying declaration of the deceased (Ext. Ka 13) itself. It is noteworthy that there was no cross examination by the defence counsel of P. W. 12, Dr. Mohd. Ahmad on the point that the certificate given by him regarding mental fitness of the deceased was false and fabricated or that the deceased was fully un-conscious and was not in a position to depose. Thus, the testimony of P. W. 12 Dr. Mohd. Ahmad on the aforesaid point had gone unchallenged. It is fully established that the dying declaration of the deceased was recorded on 3.11.2011 by P. W. 10 Naib Tehsildar Ram Bharose after P. W. 12 Dr. Mohd. Ahmad had certified that she was conscious and mentally fit to give her statement. No suggestion was given to any of the aforesaid witnesses by the defence counsel during trial that the dying declaration of the deceased was not recorded voluntarily or it was a fabricated document.

Thus in view of the above, we do not find any reason to discard the dying declaration or hold it to be a suspicious document. The deceased in her dying declaration has although implicated her father-in-law appellant Fakirchandra also as a person who had aided in setting her ablaze but the tenor of her dying declaration reflects that it was the appellant Raghuvir, brother-in-law (jeth) who was demanding a motorcycle from her and it was appellant Raghuvir who had poured kerosene oil on her and thereafter appellant Smt. Rammurti, mother-in-law had set her ablaze. Although the deceased in her dying declaration has also stated that her father-in-law appellant Fakirchandra had also burnt her but she has not disclosed precisely the role of the appellant Fakirchandra. From the dying declaration of the deceased, it is not clear that as to what appellant Fakirchandra had done after appellant Raghuvir had poured kerosene oil on her and her mother-in-law appellant Smt. Rammurti had set her on fire. The reason given by the deceased in her dying declaration for her being set ablaze was that there was a dispute over the issue of cooking food, which in the normal course, could have been between the deceased and her mother-in-law appellant Smt. Rammurti. The reason for her mother-in-law aiding her son appellant Raghuvir, who already had a grouse against her on account of failure of her family members to give him a motorcycle, on account of the aforesaid dispute appears to be plausible but the father-in-law appellant, Fakirchandra could not be said to have any concern with the said dispute.

Thus, we find that although the name of the appellant Fakirchandra does figure in the dying declaration of the deceased but the role of pouring kerosene oil on her and setting her ablaze, has been assigned by the deceased to the appellant Raghuvir and her mother-in-law appellant Smt. Rammurti with a passing reference that her father-in-law had also burnt her, no further specification was made. Moreover, in the last para of her dying declaration, she has ascribed the role of setting her ablaze to appellant Raghuvir on account of non-fulfilment of his demand for a motorcycle by her and her parents.

Thus, in view of the foregoing discussions, we are of the view that as far as the appellant no. 1 Fakirchandra in Criminal Appeal No. 3251 of 2016 is concerned, his recorded conviction and sentence awarded to him by the trial court relying upon the dying declaration of the deceased, cannot be maintained and is liable to be set aside. As regards the appellant no. 2 Smt. Rammurti in Criminal Appeal No. 3251 of 2016 and the appellant Raghuvir in Criminal Appeal No. 3524 of 2016, we do not find any reason to interfere with their recorded conviction and awarding of life sentence to them under Sections-302/34 I. P. C.

Consequently, Criminal Appeal No. 3251 of 2016 is allowed qua appellant no. 1, Fakirchandra. He is acquitted of all the charges. Since he is in jail, he shall be released forthwith unless he is wanted in some other case subject to his complying with the provisions of Section 437-A of Cr.P.C.

Criminal Appeal No. 3251 of 2016, is dismissed qua appellant no. 2, Smt. Rammurti.

Criminal Appeal No. 3524 of 2016 also stands dismissed.

Both the appellants namely appellant no. 2, Smt. Rammurti in Criminal Appeal No. 3251 of 2016 and appellant Raghuvir in Criminal Appeal No. 3524 of 2016 are in jail. They shall serve out the remaining part of their sentences.

There shall, however, be no order as to costs.

Order Date :- 27.07.2018

HR