Banwari Lal vs State Of U.P.
2019 Latest Caselaw 4998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.7
 
Criminal Appeal No.774 of 2006
 
Banwari Lal 		...   ...   ...		      Appellant 
 
vs.
 
	State of Uttar Pradesh	...   ...   ...		     Respondent
 

 
For Appellant		:	Shri Durgesh Kumar Singh
 
					
 
For Respondent/State	:	Shri Amit Sinha, AGA for the State
 
---
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J.

(24.05.2019)

1. This appeal arises out of impugned judgment and order dated 30.11.2009 passed by the Additional Sessions Judge, FTC No.1, Mathura in Sessions Trial No.103 of 1994 (State Vs. Banwari Lal), convicting the appellant under Sections 304-B and 498-A of IPC and sentencing him to undergo imprisonment for life and to undergo one year Rigorous Imprisonment, with a fine of Rs.1000/-, in default thereof, two months imprisonment, with a direction that both the sentences shall run concurrently.

2. In the present case, name of the deceased is Chameli Devi, wife of accused-appellant Banwari Lal. Their marriage was solemnized about eight months prior to the date of incident i.e. 28.10.1991. It is said that on 28.10.1991, there was some hot talk between appellant and the deceased, appellant poured kerosene oil on Chameli Devi and set her ablazed. Injured was taken to Methodist Hospital, Jaisinghpura, Mathura, where she was medically examined, vide Ex.Ka.7, on 25.10.1991 and 60% burn injuries were noticed on her body. At Mathura dying declaration of Chameli Devi was recorded on 3.11.1991 by R.S.Bhatngar (PW-10), Sub Divisional Magistrate, wherein she has stated as to the manner in which she was burnt by the appellant. Considering serious condition of Chameli, her parents took her to Delhi and hospitalized her at Guru Teg Bahadur Hospital, Shahdara, New Delhi, where she succumbed to burn injuries on 4.11.1991. In the meanwhile, on 3.11.1991, on the basis of report, Ex.Ka.1, made by Saudan Singh (PW-2), father of the deceased, FIR, Ex.Ka.9 was registered on 3.11.1991 against the appellant under Sections 498-A and 307 of IPC.

3. Postmortem on the dead body was conducted on 5.11.1991, vide Ex.Ka.4, by Dr. R.K. Barua (PW-7). As per Autopsy Surgeon, following injuries were found on the body of the deceased:-

External examination:

1. Right hand from middle of arm and anterior axillary fold upto fingers burnt 1st and 2nd degree anterior and posteriors.

2. Left hand from middle of arm burnt 1st and 2nd degree.

3. Front of upper part of abdomen and lower part 1st and 2nd degree and presence of pus on it.

4. Both legs and thigh burnt 2nd degree, toes and soles spared.

5. Back of chest on lower part burnt 1st degree

Internal Examination:

Scalp intact, cranial bones intact, brain congested bone of the skull intact. Soft tissues of the neck is normal. hyoid bone, thyroid, tracheial rings are normal, chest shows normal, bony cage. Ribe intact. Both lungs and heart NAD.

The cause of death of the deceased was 'due to septicemia resulting from burn'.

4. While framing charge, the trial Judge has framed charge against accused appellant under Sections 498-A and 304B of IPC.

5. So as to hold accused appellant guilty, prosecution has examined ten witnesses, whereas two defence witnesses have also been examined. Statement of accused appellant was also recorded under Section 313 of Cr. PC in which, he pleaded his innocence and false implication.

6. By the impugned judgment, the trial Judge has convicted and sentenced the accused-appellant as mentioned in para 1 of this judgment.

7. Learned counsel for the appellant submits:-

(i) that deceased suffered burn injuries accidentally while she was cooking food, but unfortunately, accused appellant has been falsely implicated.

(ii) that initially it was not the case of prosecution that there was any demand of dowry, however, subsequently father of the deceased while lodging the report has made an absolutely false allegation against the appellant for demand of dowry.

(iii) that basic ingredients of 304 B of IPC are not made out against the appellant.

(iv) that dying declaration of the deceased is not trust worthy and reliable. Likewise, so called oral dying declaration made before some of the witnesses is also not reliable.

(v) that in the dying declaration, deceased has nowhere stated that she was subjected to cruelty for demand of dowry and, therefore, appellant could not be convicted under Section 304 of IPC.

(vi) that the appellant is in jail since last 14 years, life sentence is not mandatory under Section 304-B of IPC and, therefore, his sentence be reduced to the period already undergone by him after directing the appellant to pay suitable compensation to the family of the deceased. In support of his submission, counsel for the appellant has relied upon the following judgments of the Supreme Court:- (i) Shamnsaheb M. Multtani Vs. State of Karnataka [2001 (2) SCC page 577 (Paras 14 to 36)]; (ii) Major Singh and another Vs. State of Punjab [2015 (5) SCC page 201 (Paras 16 to 19)]; and (iii) Sultan Singh Vs. State of Haryana [2014 (14) SCC page 664 (Para 8)].

8. On the other hand, supporting the impugned judgment, it has been argued by State Counsel:

(i) that conviction of the appellant is in accordance with law and there is no infirmity in the same.

(ii) that looking into the facts and circumstances of the case, appellant ought to have been charged under Section 302 of IPC in addition to Section 304-B of IPC.

(iii) that though charge under Section 302 of IPC has not been framed against the appellant, language of the charge is very clear wherein the appellant was well aware that he is defending himself for committing the murder of the deceased and therefore the High Court has enough power to convict the appellant under Section 302 of IPC, even without remanding back the matter to the trial court.

(iv) that inhuman act of the appellant does not deserve any leniency to him and, if the conviction is upheld under Section 304 of IPC, no orders could be made on the sentence awarded to him.

9. Rajvir Singh (PW-1), is a neighbour of the appellant and the deceased. He has stated that on the date of occurrence at about 5:30 PM when he was sitting at the platform of his house, he heard the cries from the house of appellant and when he reached there, he saw one stove, mixed flour and the deceased and at that time the deceased was in a burning condition. He states that accused-appellant was also present. He extinguished the FIR by throwing quilt on the deceased and the accused-appellant also helped him in doing so. He further states that the accused appellant also suffered burn injury on his fingers. He further states that injured Chameli Devi was taken to Methodist Hospital and that he had not seen any quarrel between the couple.

10. Saudan Singh (PW-2) is the father of the deceased and the informant. He has stated that marriage of the deceased was solemnised with the appellant about 8 months prior to the date of occurrence and in the said marriage, sufficient dowry was given by him. He states that the accused appellant was not happy with the dowry and was demanding Rs. 10,000/- from his daughter. He further states that about a week prior to the incident, deceased came to his house and after about three days of her going back, the incident occurred. He states that the deceased used to complaint him that she was being subjected to cruelty by the appellant. He further states that as soon as he came to know about the incident, he reached to Methodist Hospital, Jaisinghpura, Mathura, where he met the deceased and the appellant, and in the hospital, deceased informed him that it is the appellant who burnt her and thereafter the accused appellant and his parents fled away from the hospital. He further states that he took the deceased at Guru Teg Bahadur Hospital, Delhi where she succumbed to her burn injuries. In the cross-examination, but for minor contradiction, this witness remained firm and his statement regarding demand of dowry by the accused appellant and illtreatment to the deceased remained intact. He has further reiterated that at Methodist Hospital, Mathura, the deceased made oral dying declaration before him.

11 Dr. R.A. Gautam (PW-3) attended the injured when she was brought at Guru Teg Bahadur Hospital, Delhi. He noticed about 57% burn injuries on her body.

12. Bharat Singh (PW-4), is a brother of the deceased, has made almost similar statement as has been made by his father Saudan Singh (PW-2). He also states that the deceased was subjected to cruelty for demand of dowry and that in the Methodist Hospital, Mathura, she made oral dying declaration before him informing as to the manner in which she was burnt by the appellant. In the cross examination, this witness also remained firm and nothing could be elicited from him.

13. Nand Kishore (PW-5), is an uncle of the deceased, has stated that when he met the deceased in the hospital, she made oral dying declaration before him.

14. Lilawati (PW-6), is a step mother of the deceased and witness of demand of dowry made by the appellant and oral dying declaration made by the deceased before her at Methodist Hospital.

15. Dr. R.K. Barua (PW-7) has conducted postmortem on the body of the deceased and found 60% burn injury.

16. Rajveer Singh (PW-8) is an Investigating Officer, who has duly supported the prosecution version.

17. R.S. Bhatnagar (PW-10) is a Sub-Divisional Magistrate, who recorded the dying declaration of the deceased. He states that while recording the dying declaration of the deceased, she was fully conscious and due certificate was given by the doctor. In the dying declaration, deceased informed him that accused appellant after pouring kerosene oil, set her ablazed. He has also stated that after recording the dying declaration, he read over the same to the deceased and since her hands were bandaged, therefore, he obtained right toe impression of the deceased.

18. Damodar (DW-1) is the father of the appellant. He states that on 28.10.1991 at about 5:00-6:00 PM, while cooking food, the deceased got burnt accidently, he and his son immediately hospitalised her, information was sent to her parents and it is he who born the expenses of treatment of the deceased at Methodist Hospital, Jaisinghpura, Mathura.

19. Zubair Ahmad (DW-2) has not stated anything.

20. Before we proceed to discuss the evidence adduced by the parties, it would be appropriate to see the dying declaration, vide Ex.Ka.8, recorded by the Executive Magistrate (PW-10). The said dying declaration reads as under:-"

"Jherh pesyh nsoh iRuh cuokjh yky fu0 tudiqjh eFkqjk vk;q yxHkx 20 o"kZ us c;ku fd;k fd fn0 28&11&91 dks esjs ifr cuokjh yky tks lqcg 4 cts dgha ls vk;k Fkk vkSj fnu esa 12 cts tkxk Fkk] us eq>ls dgk fd ikuh dh ckYVh ugkus ds fy;s Hkj nsA eSaus ckgj uy ls ikuh dh ckYVh Hkj nhA fQj mlus dgk ckYVh vUnj yk eSa vUnj ugkÅWxk vkSj [kkuk cukA eSa [kkuk cukus dh rS;kjh djus yxh rks mUgksaus dgk er cuk [kkukA mUgksaus eq>s xkyh nsdj ilfu;k dgk vkSj dgk fd rqels lqUnj eq>s vkSjrs fey jgh gSA eSaus tckc fn;k fd ;fn eSa ilfu;k Fkh rks igys eq>ls 'kknh D;ksa dh Fkh bl ij mUgksaus xqLls esa vkdj eq>s pIiy ls [kwc ihVk fQj ?kwWlksa o ykrksa ls ihVkA fQj [kijSy ls ykfB;k fudky yk;s vkSj pkj ikap ykfB;kW esjs ekjhA fQj dgk lkyh rq>s tyk nwWxk vkSj ;g dgdj feV~Vh ds rsy dh dV~Vh mBk yk;s vkSj eq> ij rsy fNM+d dj uhps /kksrh ls vkx yxk nh ekfpl lsA ml le; ?kj esa esjs ifr ds vykok vkSj dksbZ ugha FkkA vkx yxus ij eSa ckgj dks HkkxhA esjs dks 'kksj lqudj ckgj iM+kslu dsyk o esok vkSj dsyk ds nsoj us jtkbZ eq> ij Mky nh vkSj vkx dks cpk;kA eq>s dsyk o mldk nsoj ';ke rFkk esjs ifr vLirky ys x;sA vLirky esa esjs ifr o lkl us eq>ls dgk fd ;fn dksbZ iwNs rks dg nhft;s fd vkx rq>s vpkud LVkso ls yx x;hA eq>s esjs ifr ilUn ugha djrs Fks vkSj ges'kk dgrs jgrs Fks fd rw ilfu;k gSA esjh lkl eq>ls dqN ugha dgrh FkhA esjk fookg yxHkx nl ekg iwoZ cuokjh yky ls gqvk FkkA og Bsy yxk Fkk vkSj vc [email protected]& :0 jkst ij fdlh gyokbZ ds ;gka dke dj jgk FkkA

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21. The Executive Magistrate has categorically stated that before recording the dying declaration of the deceased, certificate was obtained from the Doctor about the fitness of the deceased and thereafter he has proceeded to record the dying declaration. The Doctor, who gave the certificate, has duly signed the same and right toe impression of the deceased was also obtained in the dying declaration. Law in respect of dying declaration recorded by the Executive Magistrate is well settled. In State of Gujarat v. Jayrajbhai Punjabhai Varu1, the Supreme Court held as under:

"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a 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 the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.

16. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW-1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW-1.

17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.

18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.

19. On appreciation of evidence on record, we are of the considered view that the dying declarations of the deceased recorded by the police officer as well as the Executive Magistrate are fully corroborated and there is no inconsistency as regards the role of the respondent herein in the commission of offence. From a perusal of the statement recorded by Bhiku Karsanbhai, P.S.O., the thumb impression of Rekhaben (since deceased) which had been identified by her father-Sri Vala Jaskubhai Suragbhai as also his cross-examination in which he admitted that police had already come there and he had identified her thumb impression and Mamlatdar had gone inside to record statement, there is no reason as to why Rekhaben would give names of her husband and her in- laws in the alleged statement given to her father. A dying declaration is entitled to great weight. The conviction basing reliance upon the oral dying declaration made to the father of the deceased is not reliable and such a declaration can be a result of afterthought. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

20. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."

22. In Gaffar Badshaha Pathan v. State of Maharashtra2,it was held as under:

"5. Dr. A.U. Masurkar was the Chief Medical Officer of the hospital at the relevant time. The High Court has held that the recording of the dying declaration and story stated therein apparently appears to be false and concocted for the various reasons noticed in the impugned judgment. It has to be borne in mind that the fact whether the dying declaration is false and concocted has to be established by the prosecution. It is not for the accused to prove conclusively that the dying declaration was correct and the story therein was not concocted. The fact that the statement of the deceased was recorded at about 9.00 p.m. by the Head Constable cannot be doubted though an attempt to the contrary seems to have been made by the prosecution. The statements of the prosecution witnesses (PW 5 and PW 11) also show that the statement was recorded by the Head Constable. According to PW 5, it was only a show made by the Head Constable of recording statement, since according to the said witness, the deceased was not in a position to speak at that time. Even PW 11, a doctor in the hospital, has deposed about the recording of the statement by the Head Constable though he has not formally proved the dying declaration but has certified the correctness of the endorsement of Dr. A.U. Masurkar on the dying declaration. PW 11 was shown the dying declaration. He has deposed that the certificate recorded on the dying declaration is in the handwriting of Dr. Masurkar, Chief Medical Officer of the hospital. He has further deposed that Dr. Masurkar is in the hospital since the last 12 to 15 years and that he had degree in MS and was estimated to be an honest and expert surgeon of the area. One of the reasons which had strongly weighed with the High Court in rejecting the dying declaration is that the endorsement of the doctor is only about the deceased lady being conscious and not that she was in a fit condition to make the statement. The High Court went into distinction between consciousness and fitness to make statement. On the facts of the present case, we are unable to sustain the approach adopted by the High Court. It is one thing for an accused to attack a dying declaration in a case where the prosecution seeks to rely on a dying declaration against an accused but it is altogether different where an accused relies upon a dying declaration in support of the defence of accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the dying declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of the doctor aforequoted is not only about the conscious state of the lady but is that she made the statement in a conscious state."

23. In P. Mani v State of Tamilnadu3, while considering the suspicious dying declaration, it has been held by the Apex Court that the conviction can be based solely on the basis of dying declaration alone, but the same must be wholly reliable and trustworthy. Para 14 of the said judgment reads thus:

"14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused."

24. In Lakhan v. State of MP4, the Supreme Court after discussing number of judgments on the point of dying declarations summarized the law in this regard, 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."

25. In Shudhakar v. State of MP5, the Supreme Court held as under:

"18. In the case of Laxman (supra), the Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows:

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. 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."

26. In Ramakant Mishra v. State of UP6, the Supreme Court observed as under:

"9. Definition of this legal concept found in Black's Law Dictionary (5th Edition) justifies reproduction:

"Dying Declarations - Statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide (and occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is the crime charged to the defendant. Shepard v. U.S., Kan., 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.

Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is admissible on behalf of accused as well as for prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule. Fed. Evid.R. 804 (b) (2).

10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a Dying Declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration."

27. Considering the dying declaration of the deceased, complicity of the accused appellant in commission of offence has been duly proved and this dying declaration is good enough to uphold the conviction of the appellant. The father, brother, step mother and uncle of the deceased have categorically deposed that marriage of the deceased was solemnised with the appellant about eight months prior to the incident and that she was subjected to cruelty for demand of dowry.

Another important aspect of the case is that in the hospital, parents, brother and uncle of the deceased met her and she made oral dying declaration before all of them informing as to the manner in which she was burnt by the appellant. We have no reason to disbelieve the oral dying declaration made by the deceased. All these witnesses remained intact in their cross examination and nothing could be elicited from them in their cross examination. On the basis of evidence, basic ingredients of Section 304B of IPC have been duly proved by the prosecution.

28. We find no substance in the argument of the defence that the deceased suffered burn injuries accidentally. No such evidence is on record to suggest that it was a case of accidental fire. We find no substance in the argument of the defence that in her dying declaration, deceased has not made allegation of any demand of dowry and, therefore, the prosecution has failed to prove the offence against the appellant under Section 304B of IPC. It is not necessary for the deceased to make specific averment about the demand of dowry in her dying declaration. Her dying declaration is very descriptive and she has stated before the Magistrate all the facts and circumstances and as to manner in which she was burnt by the appellant. The contents of the dying declaration is to be seen along with other evidence produced by the prosecution and the other evidence reflects that deceased was subjected to cruelty for demand of dowry resulting her unnatural death.

29. We further find no substance in the argument of the defence that the life sentence imposed upon the appellant is required to be reduced. In fact, considering the dying declaration of the deceased, charge under Section 302 of IPC ought to have been framed against the appellant and he ought to have been tried for the said offence but no charge has been framed in relation to Section 302 of IPC and we do not inclined to remit the matter to the trial Court looking to the fact that the incident is of year 1991. In our considered view, no lienency is required to be shown to the appellant and his sentence cannot be reduced from that of life imprisonment which has been done by the trial court.

30. The trial Court was fully justified in convicting and sentencing the accused appellant. The judgment relied upon by the appellant is of no help to him as the facts and circumstances of the present case are entirely different.

31. The appeal has no substance and the same, is accordingly, dismissed. As the appellant is in jail, no further order is required to be passed.

32. We appreciate the assistance rendered by Sri Durgesh Kumar, learned Amicus, who has argued the appeal on behalf of the appellant. He be paid Rs.10,000/- as his remuneration from the State exchequer.

 
Dt. 24.05.2019
 
nethra/mohit
 

 
                         (Raj Beer Singh, J)                   (Pritinker Diwaker, J)