Allahabad High Court
Girdhari Lal And 3 Others vs State Of U.P. on 12 November, 2025
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 1
HON'BLE RAJAN ROY, J.
HON'BLE MANJIVE SHUKLA, J.
(Per: Rajan Roy, J.)
(1) Heard Sri Rajendra Singh Chauhan and Ms. Jyoti Rajpoot, learned counsel for the appellants and Sri Ravish Chandra Mishra, learned A.G.A. for the State.
(2) This is an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 08.04.2019 passed by Additional Session Judge/ F.T.C (New), Lakhimpur Kheri in Session Trial No.83/2015 (State vs. Girdhari Lal & Ors.) arising out of Case Crime No.C-543 of 2014 lodged at Police Station-Esa Nagar, District-Lakhimpur Kheri. The appellants herein have been convicted for the offence of murder punishable under Section-302 I.P.C. and sentenced to undergo rigorous imprisonment for life and fine of Rs.20,000/-, failing which, they will have to undergo two years' additional simple imprisonment. They have also been convicted of the offence punishable under Section-498-A I.P.C. and sentenced to undergo rigorous imprisonment for two years and fine of Rs.2000/-, failing which, they will have to undergo six months additional simple imprisonment.
(3) The prosecution case in nutshell is that his daughter was married to son of appellant no.1 Late Vikram three years prior to the incident. Vikram died within two years of his marriage. The appellants subjected the deceased to physical and mental torture/ trauma and also harassed her financially. They used to beat her up. On 31.03.2014 at 07:00 A.M., all the appellants set the deceased on fire by pouring kerosine oil on account of which she died albeit subsequently in the hospital.
(4) The incident is said to have taken place on 31.03.2014 at 07:00 A.M. Inquest was conducted on 01.04.2014. Inquest report is Ex.Ka.7. Post-mortem was conducted on the body of the deceased on 01.04.2014 at 05:30-06:00 P.M. The post-mortem report is Ex.Ka.2. Dying declaration of the deceased was recorded on 31.03.2014 at 5:15 P.M. Ex.Ka.11 is the dying declaration. Ex.Ka.3 is the siteplan. An application was filed by the informant on 11.04.2014 under Section 156(3) Cr.P.C. The F.I.R. was lodged at 12:30 A.M. on 18.09.2014 after six months of the incident under the orders of A.C.J.M. dated 11.09.2014 passed under Section 156(3) Cr.P.C. on the application filed by the informant on 11.04.2014. The First Information Report is Ex.Ka.5. Distance of the scene of crime and police station is thirteen and a half kilometers. Six accused were named in the F.I.R., namely, Girdhari Lal (father-in-law), Smt. Shyamkali (Mother-in-law), Visheswar (Jeth), Smt. Sunita (Jethani), Sobran (Dewar) and Mantuna (Nanad). The police did not lodge the F.I.R. earlier allegedly because on inquiry it was stated by the villagers that appellants were not present at the scene of crime but were elsewhere and that the deceased had set herself on fire as her marriage with her Dewar had not been agreed upon.
(5) The police conducted the investigation and ultimately filed chargesheet on 14.11.2014 against four out of the six accused, namely, Girdhari Lal (father-in-law), Smt. Shyamkali (Mother-in-law), Visheswar (Jeth) and Smt. Sunita (Jethani). No evidence was found against two of the accused, namely, Sobran (Dewar) and Mantuna (Nanad).
(6) The C.J.M., Lakhimpur Kheri committed the trial to the Sessions Court on 24.01.2015. On 25.04.2015, charges were framed against the accused-appellants under Sections 498A, 304B I.P.C. and Section 4 Dowry Prohibition Act. In the alternative, a charge under Section 302 I.P.C. was also framed against the appellants. As the accused-appellants denied the charges, they were put to trial.
(7) The prosecution produced seven witnesses. P.W.-1 Mukut is brother of the deceased; P.W.2-Kalawati is aunt of the deceased; P.W.3-Sakru is uncle of the deceased; P.W.4 -Dr. C.S. Singh is the Autopsy Surgeon; P.W.5-Sri Manoj Kumar Yadav is the Circle Officer who conducted the investigation; P.W.6 is another brother of the deceased; P.W.7-Dr. Amit Singh is Emergency Medical Officer who was posted at District Hospital-Lakhimpur Kheri and had examined the deceased before her death on 31.03.2014, before and after recording of the dying declaration i.e. before her death.
(8) The defence produced four witnesses. D.W.1 to D.W.4 are residents of the same village in which the appellants and the deceased resided.
(9) Statement of all the accused were recorded under Section 313 Cr.P.C. on 08.01.2019.
(10) The case of the defence is one of denial and false implication. In the statement under Section 313 Cr.P.C., they have taken the plea of alibi that they were not present in the house when the incident occurred. The deceased had set herself on fire on being peeved by settlement of marriage of her Dewar-Sobran elsewhere and not with her. She had committed suicide.
(11) On a consideration of facts and evidence on record, the trial court convicted the appellants herein of the offences as noticed in the opening paragraph of this judgment.
(12) The contention of learned counsel for the appellants in nutshell was that the case is based on circumstantial evidence. None of the prosecution witnesses have seen commission of the crime. Trial court has based its conviction entirely on dying declaration of the deceased and the opinion of the medical expert. From the statement of the witnesses itself, it is amply proved that Sobran did not want to marry the deceased who was his widow Bhabhi, therefore, entire story cooked up by the prosecution is untenable. The appellants have not been convicted under Section 3 of the Dowry Prohibition Act nor under Section 304B I.P.C., Therefore, the very basis of the prosecution case that the crime was committed as demand of dowry was not met has no legs to stand. The scribe of the dying declaration has not been examined. The statement of the prosecution witnesses itself proves that the deceased was peeved by settlement of marriage of Sobran with whom she wanted to re-marry, elsewhere. It is also proved that the appellants had taken the deceased to the hospital and had ensured proper treatment to her. If the crime had been committed by the appellants then they would not have done so. Defence evidence was led to show that none of the appellants were present at the scene of crime but the same has been cursorily rejected by the trial court. It has also come in the statement of prosecution witnesses that final rites of the deceased daughter-in-law were performed by the appellants and not by the maternal family members of the deceased who did not even participate in the funeral. F.I.R. has been lodged belatedly that too through an order of the Magistrate under Section 156(3) Cr.P.C. The police did not lodge the F.I.R. because there was evidence in the form of affidavit of the villagers to the effect that the appellants-accused were not present at the scene of crime. The Jeth and Jethani i.e. appellant nos.2 and 4 respectively used to reside separately, they have been falsely implicated so have the other appellants. There is no evidence to prove the presence of the appellants at the scene of crime. The trial court has proceeded on conjectures and surmises to convict the appellants who are innocent. The motive for committing the crime is itself highly suspect.
(13) Per contra, Sri Ravish Chandra Mishra, learned A.G.A for the State submitted that there is a dying declaration which does not suffer from any flaw and that by itself is sufficient for conviction of the appellants. The law is settled that dying declaration can by itself be made a ground for conviction without requirement of corroboration by other evidence. Dying declaration was recorded on the day of death of the deceased barely two hours prior to it, therefore, it has great evidentiary value. There were serious inconsistencies in the statement of defence witnesses as mentioned by the trial court making the same unreliable as such the trial court based on the dying declaration and medical evidence has rightly convicted the appellants. P.W.1 to P.W.7 have supported the prosecution case. The recording of dying declaration has been proved by the doctor who had examined the deceased prior and after recording of the dying declaration, therefore, the fact that scribe of dying declaration i.e. Naib Tehsildar was not examined is inconsequential. The prosecution has proved its case beyond reasonable doubt, therefore, there is no reason for interference with the trial court's judgment in this appeal.
(14) As per post-mortem report, the following ante-mortem injures were detected:-
"(1) Superficial to Deep Burn all over body except head forehead Perineum Region front and back of both leg foot at sole. Skin peeled off and Blackened. Line of Redness present at Places."
(15) No other ante-mortem injury was detected. The cause of death was mentioned as shock as a result of Ante-mortem burn injuries. P.W.4 is the Autopsy Surgeon who has proved the post-mortem report and he has reiterated the ante-mortem injuries as mentioned in the post-mortem report. He has stated as under:-
"मृतका के शरीर पर निम्नलिखित एन्टी मार्टम इन्जरी पायी गयी।
सिर माथा पेरी नियम रीजन दोनों पैर के सामने व पीछे एवं तलवे को छोड़कर सुपुरफीसियल एवं डीप बर्न मौजूद था। चमड़ी कही-कही उधड़ी थी और काली पड़ गयी थी लाल रेखा शरीर पर कही-2 मौजूद थी।"
(16) P.W.4 has stated that deceased did not have any clothes on her body. In cross-examination, he has stated that she was 85 percent burnt. She did not have any clothes sticking on her.
(17) From the medical evidence on record, it is evident that death of the deceased was not natural.
(18) P.W.1-Informant is brother of the deceased. He has testified that after the death of deceased's husband, she used to tell him that the appellants demanded motorcycle for her Dewar (Sobran) and on the said demand not being fulfilled, they used to beat her. They had beat her up in front of him, however, he has admitted that he had not lodged any complaint or report in this regard but had complained to the Gram Pradhan. When the appellants beat her up, he took her to his house i.e. his maternal house. At that time, marriage of Sobran (Dewar of the deceased) was being arranged. The appellants had deceived them (maternal side of the deceased) which they did not like. On receiving news of settlement of marriage of Sobran, the deceased again went to her in-laws house and six days thereafter, she was burnt to death. No information was given on the mobile which was available in his house, instead, the Gram Pradhan of the village Sundar Singh was informed. He reached the District Hospital, Lakhimpur Kheri on information and saw her. She had given her statement before death that six persons had burnt her. Hands and legs of her sister had been tied and then burnt. Her sister had told him about it and also that after burning her, they had poured one bucket of water and then took her to the hospital. He has denied the suggestion in cross-examination that he had lodged a false report being peeved by arrangement of Sobran's marriage elsewhere and not with the deceased. He has admitted that in-laws of the deceased had admitted her in the hospital. He has also admitted that last rites of the deceased were performed by the in-laws and that he had not attended the last rites. He has denied the suggestion that deceased had gone to in-laws to complain against settlement of Sobran's marriage elsewhere and that she felt cheated on account of it.
(19) P.W.2 is aunt of deceased. The deceased was daughter of P.W.2's Jethani. According to her, marriage of deceased with Vikram son of appellant no.1 had been solemnized two years prior to her death. She has deposed about having reached the District Hospital, Lakhimpur Kheri on receiving information of the incident. She has testified that the appellants used to demand motorcycle as dowry for settling the deceased's marriage with her Dewar-Sobran and on non-fulfillment of the demand, they burnt her. According to her, the deceased had told her that six accused had burnt her. In cross-examination, she has stated that after death of her husband, it was decided to marry her with her Dewar Sobran. The deceased went to her maternal house and during this period, secretly, Sobran's marriage was settled elsewhere. On coming to know, Pinki came back to her in-laws. She was ready to marry Sobran. She was hurt and pained on knowing that Sobran's marriage had been settled elsewhere. She used to say that she will live in the same house (in-laws). The in-laws said that they had settled his marriage elsewhere and nothing could be done. She has stated that initially appellant no.-1 Girdhari Lal talked about taking the injured to Lucknow for treatment but after recording of the statement of Pinki, he did not take her. Pinki was adamant that she would not go unless her statement is recorded. She did not know when doctors had referred the patient to Lucknow. Pinki had told appellant no.1-Girdhari Lal that he had cheated her. Pinki's condition worsened in the evening and she died. She stated that all of them have cheated her. She also said that she will not spare anyone. She has testified that nobody had advised in her presence that the patient was required to be taken to Lucknow and if not taken she would die. She has categorically mentioned that in-laws of the deceased were present in the hospital at the time of treatment and it is they who used to arrange the medicines for the patient. She has also stated in cross-examination that father-in-law i.e. appellant no.1 had offered to take the patient to Lucknow for further treatment and not the maternal side. She has denied the suggestion that she was badly burnt and unable to speak. She has accepted that on account of settlement of Sobran's marriage elsewhere she was in great pain though she has denied the suggestion that she committed suicide on account of the aforesaid fact.
(20) P.W.3 is a witness of inquest and nothing more. He has proved his thumb impression on the inquest. He is nephew of the deceased.
(21) P.W.5 is the then Circle Officer, Dhurahara who had investigated the crime and filed the chargesheet. He has testified that Gram Pradhan of appellant's village had informed Gram Pradhan of Informant side about the incident. He has testified that informant had not told him anything about any beating of the deceased by the appellants before Pradhan. He has accepted that he had not recorded the statement of Pradhan. He had not collected any such evidence that marriage of deceased had been solemnized with Sobran. In cross-examination, he has stated that Rohit Singh, Khusiram, Shiv Kumar, Sundarlal, Kailash, Munna Singh, Chandrika Prasad, Harishankar, Satish Yadav, Naresh Yadav all residents of Village-Khanwapur that is village of the appellants, had given affidavit to the S.S.P. that at the time of the incident all the accused were working in the agricultural fields along with others and he had recorded their statements.
(22) P.W.6 is another real brother of the deceased. He has stated that deceased was married to Vikram son of appellant no.1 two years prior to her death. Information about the incident had been received by Gram Pradhan of his village from Gram Pradhan of the appellants' village. He along with others reached Primary Health Centre, Lakhimpur Kheri, Khamariya. Her sister was then taken to District Hospital, Lakhimpur Kheri where she died while under treatment. He and his brother have given information to the police which got post-mortem conducted as also inquest report prepared. He is also a witness to inquest. He has stated in examination-in-chief that he had informed the police officials at the time of inquest that his sister had died due to burn injuries. In cross-examination, he has stated that Vikram the husband of the deceased never demanded any dowry till he was alive. He has also stated that father-in-law, mother-in-law, Jeth, Jethani, Dewar etc of the deceased had also not demanded any dowry till Vikram was alive. After the death of Vikram, his sister came to live in her maternal house. After the death of Vikram, the deceased Pinki used to go to her in-laws some times. As she had a daughter from her marriage, she wanted to marry Sobran. They (maternal side) were also agreeable to this. Sobran did not want to marry his sister Pinki. Girdhari Lal and Smt. Shyamkali i.e. father-in-law and mother-in-law also did not want to solemnize marriage of their son Sobran with Pinki. Pinki used to visit her in-laws house in the hope and with the intent that she could get married with Sobran. One and a half years after the death of Vikram, Sobran's marriage was settled elsewhere by his parents. On coming to know of it, they (maternal side of the deceased) went to her in-law's house and asked the in-laws as to why they have settled Sobran's marriage elsewhere whereupon they told that if they give a car (Gadi) then they would settle the marriage with Pinki. Inspite of being cajoled and told about their poverty, they did not accede which troubled them. The pradhan had also accompanied them during these talks but the appellants did not pay heed to Pradhan also. All this disturbed Pinki. Girdhari Lal had beat up Pinki in front of panchayat. He had slapped her two or three times. Pinki was humiliated and started crying. They (maternal side) brought her back to their house. She said that they would kill her. He has testified that they did not lodge any F.I.R. in this regard in the hope that the matter would be sorted out. One month after the incident, Pinki died in her in-laws house. On being asked as to why inspite of the aforesaid incident involving beating and humiliation, the deceased went back to her in-laws house, the witnesses testified that she went back so that her marriage could be solemnized with Sobran. He then stated that initially the deceased was not troubled by the appellants but then she herself said that they used to harass her. The house of in-laws of the deceased was 5Km from her maternal house. He has testified that Pinki was critical but not unconscious. He has in his cross-examination testified that appellant no.1-Girdhari Lal and other accused were present in the hospital. It is they and their family members who had taken Pinki to Khamariya Hospital on a 108 Ambulance. After being referred by the doctors at P.H.C., Khamariya, he along with the appellant-Girdhari Lal took Pinki to District Hospital, Kheri and reached there at about 01:00 P.M. Pinki died at 07:00 P.M. The body of the deceased was taken by Girdhari Lal (appellant no.1) and others to their Village-Khanwapur and her last rites were performed there. He has stated that they (maternal side) had gone along with them and had participated in the last rites. He has denied that Pinki wanted to forcibly marry Sobran and that she was stubborn. He has denied the suggestion that she committed suicide when Sobran refused to marry her. She has also denied the suggestion that she had stated about teaching a lesson to her in-laws for not settling her marriage with Sobran. He has denied the suggestion that no report was lodged by them as they were merely wanting money from in-laws side.
(23) P.W.7 is the doctor who had examined Pinki before and after recording of dying declaration by Naib Tehsildar i.e. before her death. He has stated that he was working as Emergency Medical Officer on 31.03.2014 in the evening. On the same day, Naib Tehsildar (Sadar) came to record the statement of Pinki in the hospital. He had examined Pinki and found her to be in her senses and in a position to give her statement. She was in her senses prior to recording of her statement and thereafter. He has proved his certification and signature on dying declaration. In cross-examination, he has stated that Naib Tehsildar had recorded her statement after her examination, on 31.03.2014 at 04:45 P.M. The relatives of patients had been sent away at the time of recording of the statement. The patient was in a critical state but was in her senses at the time of recording of statement. He has denied the suggestion that he was not present by the side of the patient when Naib Tehsildar was recording the statement.
(24) The Naib Tehsildar who recorded the statement was not examined by the prosecution nor any reason has been put forth by the prosecution for not producing him for examination.
(25) The defence examined four witnesses. D.W.1-Chandrika Prasad is resident of the same village as the appellants. He has deposed that his agricultural field is adjacent to that of Rohit Singh-D.W.2. On the fateful day, the appellants were harvesting 'Masoor' crop since 05:00 A.M. At about 7:30-08:00 A.M., information was received from the village that Pinki had committed suicide by setting herself on fire after pouring kerosine oil. He along with the appellants and others who were working in their agricultural field reached the scene within half an hour. Prior to it, villagers had broken down the door of the room and taken out Pinki. The ambulance was parked outside the house. He has stated that appellants were not at the scene of crime but were in the agricultural field of Rohit Singh. He has testified that police had not lodged the report because on inquiry it was found that appellants were innocent and several persons including him (D.W.1), Rohit Singh, Khusiram, Shiv Kumar, Sundarlal, Kailash, Munna Singh, Harishankar, Satish Yadav, Naresh Yadav had given affidavits before the Superintendent of Police in this regard. In cross-examination, he has stated that appellants had tilled the filed of Rohit Singh and were cutting Masoor. Pinki was taken to the hospital by the appellant-Girdhari Lal and other villagers on an ambulance. He has stated that Pinki and her father-in-law resided in the same house whereas accused Smt. Sunita and Visheswar resided separately. He has also stated that Pinki did not work in the agricultural field.
(26) D.W.2- Rohit Singh is owner of the agricultural field where the appellants are alleged to have been working in the morning of fateful day. He has also stated that appellants along with other labourers were working in his field and were cutting/ plucking Masoor. On receiving information, Girdhari Lal and others reached the scene of crime. He i.e. D.W.2 was also with them. Villagers broke down the door of the room and took out Pinki. False report had been lodged against the appellants-accused. He has stated that the maternal family of Pinki had not come to attend the last rites. Appellants had never demanded dowry as both the families were poor. In cross-examination, he has denied the suggestion that he was testifying on the tutoring of the appellant-Girdhari Lal. He has reiterated that appellants were present in his field cutting/ plucking Masoor in the morning when the incident happened in the house. He has also stated that Pinki did not work in the agricultural field. The agricultural field where the appellants were cutting/ plucking 'Masoor' is about 1Kms away from the village. He has testified that Girdhari Lal had told him that he will not marry his other son Sobran with Pinki as he had lost his earlier son (husband of the deceased). He has also spoken about affidavits being given about innocence of the appellants to Superintendent of Police.
(27) D.W.3-Khushi Ram is the tenure holder of an agricultural field adjacent to Rohit Singh. He has testified that he was tilling his Ganna crop on the fateful day at about 08:00-08:30 A.M. He has also testified about presence of the appellants in the agricultural fields of Rohit Singh along with several other labourers when information was received about the incident pertaining to Pinki that she has committed suicide. He along with other villagers and the appellants rushed to the village but by then the door of the room had been broken and Pinki had been taken out from the room. He has stated that appellants-Girdhari Lal, Smt. Shyamkali, Visheswar and Smt. Sunita were not present at the scene of crime. Pinki wanted to marry Sobran but appellants were not agreeable to it on account of activities of Pinki. Pinki was annoyed because of settlement of Sobran's marriage elsewhere that is why she committed suicide. She has given her statement only to teach a lesson to the appellants a fact which she has stated even in the hospital. He has testified about giving affidavit to the Superintendent of Police about innocence of the appellants. He has stated that it is appellant no.1-Girdhari Lal who had got Pinki treated at the hospital after the incident. Her last rites were also performed the appellants and not by the maternal family members of Pinki. He has testified about being present at the time of funeral/ last rites of Pinki. He has also stated that appellants never demanded dowry from the family members of Pinki. In his cross-examination, he has reiterated about presence of the appellants in the agricultural field of Rohit Singh cutting 'Masoor'. He has stated that he reached the hospital later and not with the appellants. He has reiterated having submitted affidavits about innocence of the appellants.
(28) D.W.4-Satish Yadav has testified that his house is not very far from the house of appellant no.1. He is a neighbor of Girdhari Lal-appellant no.1. The appellants had never demanded dowry before the marriage of Pinki with Vikram or thereafter. Pinki used to leave her in-law's house for her maternal house as and when she wanted and return accordingly. The appellants never demanded dowry from the family members of Pinki. Pinki wanted to marry Sobran but appellants were not ready for it. Pinki was annoyed on account of settlement of Sobran's marriage elsewhere. He has testified about his presence and that of the appellants in the agricultural fields when the incident occurred in the village. The village is about 2Km from the agricultural fields. He has testified that last rites of Pinki were performed in the village of the appellants and that Sobran had never married Pinki. In his cross-examination, he stood his ground about presence of the appellants in the agricultural field where he was also present.
(29) We have heard learned counsel for the appellants and learned A.G.A. for the State.
(30) Learned trial court has acquitted all the appellants of the offence punishable under Section 304 I.P.C. and Section 4 Dowry Prohibition Act.
(31) The appellants have been convicted only for the offence punishable under Section 498A I.P.C. and Section 302 I.P.C. Charge No.1 against the appellants was as under:-
"प्रथमः
यहकि घटना दिनांक 31-03-2014 से करीब 3 वर्ष पूर्व वादी मुकदमा मुकुट ने अपनी बहन श्रीमती पिंकी देवी की शादी विक्रम के साथ की थी, को आपने वादी द्वारा अतिरिक्त दहेज न दे पाने के कारण शारीरिक व मानसिक रूप से प्रताड़ित किया। इस प्रकार आपने भा०द०सं० की धारा 498ए के अधीन दण्डनीय अपराध किया जो मेरे प्रसंज्ञान में है।"
(32) As regards the offence punishable under Section 498A I.P.C., P.W.1 has supported the prosecution case and stated that after the death of husband of the deceased-Vikram, the appellants (in-laws etc.) used to harass the deceased physically, financially and mentally. They did not give her proper food and used to beat her. However, this statement is of very general nature. No details as to when all this happened and how P.W.1 came to know about it. It has not been stated by him that any such incident happened in his presence. It is not the case of prosecution that any prior complaint was lodged regarding any offence punishable under Section 498A I.P.C. i.e. prior to the incident dated 31.03.2014. Further, when we scrutinize the testimony of P.W.2, who happened to be aunt of the deceased, therein also we do not find any such statement that in her presence any such atrocity punishable under Section 498A I.P.C. had been committed by the appellant nor any such details have been given. Only general statements have been made in this regard that too allegedly based on information provided by the deceased, therefore, P.W.2's evidence in this regard is purely hearsay. P.W.3 is only a witness of inquest, therefore, his testimony is not relevant at all in this context. This leaves us with the testimony of P.W.6 who is brother of the deceased. While in his examination-in-chief, he has made similar generalized allegation of atrocities having been committed by the appellants upon the deceased while she was alive after the death of her husband without giving any details, he has nowhere mentioned that any such atrocity was committed in his presence or he saw the appellants committing such atrocities. Such generalized statements, therefore, have no evidentiary value especially as prior to 31.03.2014 and prior to filing of the application under Section 156(3) Cr.P.C., no such allegations were made nor any complaint or report was lodged by any of the family members of the deceased. Such allegations have been made by prosecution witnesses only after death of the deceased. In our opinion, it is not safe to convict the appellants for the offence punishable under Section 498A I.P.C. based on such generalized statements without any details and without there being any such statement by any of the prosecution witnesses of having seen any such atrocity having been committed by their own eyes and without mentioning any such details.
(33) As regards statement of P.W.1 that deceased was beaten up in the presence of Gram Pradhan, firstly, this is in the context of non-settlement of marriage of the deceased with Sobran (her Dewar) and such beating had taken place on account of failure of the informant's side to fulfill the demand of motorcycle in that context. Apart from the fact that the offence punishable under Section 3 of the Dowry Prohibition Act has not been proved, this again is a vague statement without any date as to when this incident happened and any other detail being given. No independent witness, who may have been present in the panchayat, nor the Gram Pradhan have been examined by the prosecution. The beating of the deceased in the presence of P.W.1 has also been mentioned in this very context, in the presence of Pradhan. Likewise, generalized allegations have been made by P.W.6 the other brother of the deceased that she was beaten up by the appellants in the presence of Pradhan who has not been examined. These testimonies cannot by themself form the basis for conviction u/s 498A I.P.C. Most important, P.W.-6-Ramesh who is brother of the deceased has stated that "मेरे बहनोई विक्रम की मृत्यु के बाद मेरी बहन पिंकी हमारे घर चली आयी थी। पिंकी व विक्रम की एक लड़की हुयी जो इस समय 6 साल की है और हमारे साथ ही रहती है। पिंकी देवी अपने पति के मरने के बाद कभी-कभी ससुराल से मायके व मायके से ससुराल आती जाती रहती थी।" If it was so, and Pinki went to her in-laws house on and off, then, there was hardly any occasion for the appellants to have harassed or ill-treated her or to commit any offence punishable under Section 498A I.P.C. There is no evidence to prove marriage of deceased with Sobran (Dewar), in fact, this is not the case of the prosecution. The offence punishable under Section 498A I.P.C. has thus not been proved by the prosecution beyond reasonable doubt.
(34) As regards alternative Charge No.2 of murder, it was framed as under:-
"द्वितीयः
यहकि दिनांक 31-03-2014 को समय 7.00 बजे बहद ग्राम खनवापुर थाना ईसानगर, जिला खीरी में आपने विवाह के सात वर्ष के भीतर असामान्य परिस्थितियों में श्रीमती पिंकी देवी की दहेज की मांग को लेकर मिट्टी का तेल डालकर जला कर साशय मृत्यु कारित करके हत्या की, और मृत्यु से पूर्व आपने श्रीमती पिंकी देवी के साथ दहेज की मांग के लिए क्रूरतापूर्वक व्यवहार किया। इस प्रकार आपने भा०द०सं० की धारा 304बी के अधीन दण्डनीय अपराध किया जो मेरे प्रसंज्ञान में है।"
(35) In this context, while it is true that dying declaration can be made the basis for conviction even without corroboration by other evidence, it depends on facts and evidence of a case and there cannot be any hard and fast rule in this regard. In this case, no doubt, Pinki has stated about two hours before her death on 31.03.2014 at about 07:00 P.M. that her husband had expired a year ago, after his death, her in-laws used to trouble her. She has named appellant no.1-father-in-law, appellant no.3-Jeth, appellant no.4-Jethani and her dewar Sobran. She has stated that today her mother-in-law and father-in-law said that let us set her on fire. She wanted to marry her dewar after her husband's death, on account of which, they were annoyed and wanted to settle Dewar's marriage elsewhere. Today, her mother-in-law caught her by the waist and father-in-law poured kerosine oil. The Jeth and Jethani also set her on fire. They were also present in the room at the time of setting her on fire. She herself doused the fire. Everybody went out. After the fire had been dowsed, mother-in-law and father-in-law took her to the hospital.
(36) There is no recovery of any inflammable material such as kerosine oil or any container from the scene of crime nor has the autopsy surgeon testified about smell of kerosene from the body nor is their any mention in this regard in the post-mortem report. The room where the incident is said to have taken place is mentioned in the siteplan Ex.Ka.3 as being three and a half paces in breadth and six paces in depth, meaning thereby, it was a small room which could apparently not have accommodated all the accused and the deceased. The scribe of the dying declaration has not been produced nor any reason has been put forth by the prosecution for his non-production. We may refer to the law enunciated in this regard in the case reported in (2019) 8 SCC 779 'Jagbir Singh vs. State (NCT of Delhi)' ; 1993 Suppl (3) SCC 343 'Govind Narain and Anr. vs. State of Rajasthan'; (2000) 6 SCC 671 'Sudhakar vs. State of Maharastra'; (2023) SCC Online SC 1421 'Manjunath & Ors. vs. State of Karnataka' ; (2013) 9 SCC 800 'Panchanand Mandal @ Pachan Mandal & Anr. vs. State of Jharkhand' & (2023) SCC Online 1060 'Irfan @ Naka vs. State of Uttar Pradesh', regarding requirement of examination of scribe of dying declaration and in its absence the denial of opportunity to the defence to cross-examine him.
(37) There is no evidence led by the prosecution, much less reliable evidence that Jeth (Visheshwar) and Jethani (Sunita) appellant nos.2 and 4 resided in the same house as other appellants, in fact, defence witnesses have deposed otherwise which makes their presence at the scene of crime at 07:00 A.M. suspect.
(38) In this context, P.W.2 who is aunt of the deceased has stated as under:-
"पिंकी के पति के मरने के बाद पिंकी का सोबरन के साथ बैठने का तय हुआ था। पिंकी मायके चली गई ये लोग चुपके से दूसरा रिश्ता तय कर लिये। जब पिंकी को यह जानकारी हुई मायके में कि दूसरी जगह रिश्ता तय कर दिया है तब वह यहाँ आई थी। पिंकी भी सोबरन के साथ शादी करने को राजी थी। पिंकी को यह सुनकर बहुत कष्ट हुआ कि सोबरन का दूसरी जगह रिश्ता तय कर दिया है। पिंकी कहती थी कि मैं इसी घर रहूँगी। ससुराल वालों ने कहा कि हमने तय कर दिया है शादी अब कुछ नही कर सकते।.... गिरधारी से उसने कहा था कि तुमने हम को धोखा दिया है। शाम को उसकी हालत बिगड़ गई और वह मर गई। उसने यह भी कहा कि सब जनों ने मिल कर हम से धोखा किया है। वह यह भी कहती थी कि हम किसी को छोड़ेगे नहीं।..... यह कहना सही है कि वह सोबरन से शादी न होने के कारण बहुत कष्ट में थी।"
(39) P.W.1 and P.W.6 who are brothers of the deceased have also stated that appellants had cheated them by arranging Sobran's marriage elsewhere. P.W.6 has also stated that Pinki had a daughter from her marriage with Vikram, therefore, she though that she would marry her dewar Sobran. Sobran did not want to marry her. Appellant nos.1 and 2 i.e. father-in-law and mother-in-law also did not want Sobran to marry Pinki. Pinki used to go to her in-laws house on and off in the hope that she would get married to Sobran. One and a half years after the death of Vikram, Sobran's marriage was settled elsewhere by his parents who told them about it. Prosecution witnesses have stated that Pinki was burnt on account of non-fulfillment of demand of motorcycle for settling marriage with Sobran but Pinki's dying declaration does not contain any such allegation/ statement nor has the offence of demand of dowry under Section 3 of the D.P. Act or the offence punishable under Section 304B I.P.C. found to be proved by learned trial court. There is no appeal by the informant's side or the prosecution against acquittal of the appellants with regard to these charges. The story set up by the prosecution witnesses i.e. P.W.1, P.W.2 and P.W.6 is not believable especially as P.W.6 has categorically stated that no dowry was demanded by the appellants or Vikram while latter was alive. It being so why would it be demanded subsequently for solemnizing marriage of their younger son Sobran with Pinki. Most important, P.W.6 has stated that Sobran did not want to marry his sister, if so, then why would a demand be made for motorcycle and where was the motive to murder Pinki on non-fulfillment of such demand. In fact, Pinki did not say so in her dying declaration. She stated that in-laws were annoyed on her insistence to marry Sobran. It is implied in her statement that for this reason they burnt her but this motive appears to be highly suspect as also a weak motive. It has come in the statement of prosecution witnesses especially P.W.1 and P.W.6 that Pinki had gone away to her parent's house after death of her husband and visited her in-laws house on and off. In fact, she returned to her in-laws house barely six days prior to the incident which occurred on 31.03.2014 on coming to know that marriage of Sobran had been settled elsewhere. As she was not residing with the in-laws (appellants) regularly, there was no occasion for them to burn her merely because she was insisting on marriage with Sobran. The motive is highly suspect and in any case too weak. Further, if the intent was to murder her why would the father-in-law and mother-in-law take her immediately to the hospital and get her treated. Even in the dying declaration, the fact that the father-in-law and mother-in-law took her to the hospital is mentioned. This fact is also mentioned in the testimony of P.W.1, P.W.2 and P.W.6. P.W.6 has categorically stated that appellants were in the hospital and they had taken Pinki to Khamariya Hospital on 108 Ambulance after she got burnt, thereafter, she was taken from Khamariya hospital to District Hospital, Kheri by the appellants-Girdhari Lal etc. In fact, after Pinki's death, her dead body was taken by the appellants to their village and last rites / cremation was performed by the appellants in their own village which P.W.1 did not even attend and the statement of P.W.6 in this regard to the contrary that they had accompanied the body to the appellants' village and had participated in the last rites is belied by the statement of P.W.1 and is inconsistent with it. The testimony of P.W.1, P.W.2 and P.W.3 is thus not reliable. The entire case of the prosecution hinges on the dying declaration. The Nayab Tehsildar who recorded the dying declaration has not been examined, therefore, the defence did not have the opportunity to cross-examine him. P.W.7 the doctor who examined the deceased before and after recording of dying declaration has been examined.
(40) As regards reliability of dying declaration, it has come in the statement of prosecution witnesses that after death of her husband, Pinki wanted to live with Sobran and marry him but neither Sobran nor appellants were agreeable to it. The alleged non-fulfillment of demand of dowry has not been found proved by learned trial court. That is why it has acquitted the appellants of the offence punishable under Section 3 of the Dowry Prohibition Act and Section 304B I.P.C. As already stated, no appeal has been filed by the informant's side or the State in this regard. In this scenario, we may refer to the statement of P.W.2 once again which reads as under:-
"पिंकी के पति के मरने के बाद पिंकी का सोबरन के साथ बैठने का तय हुआ था। पिंकी मायके चली गई ये लोग चुपके से दूसरा रिश्ता तय कर लिये। जब पिंकी को यह जानकारी हुई मायके में कि दूसरी जगह रिश्ता तय कर दिया है तब वह यहाँ आई थी। पिंकी भी सोबरन के साथ शादी करने को राजी थी। पिंकी को यह सुनकर बहुत कष्ट हुआ कि सोबरन का दूसरी जगह रिश्ता तय कर दिया है। पिंकी कहती थी कि मैं इसी घर रहूँगी। ससुराल वालों ने कहा कि हमने तय कर दिया है शादी अब कुछ नही कर सकते।" .... "गिरधारी से उसने कहा था कि तुमने हम को धोखा दिया है। शाम को उसकी हालत बिगड़ गई और वह मर गई। उसने यह भी कहा कि सब जनों ने मिल कर हम से धोखा किया है। वह यह भी कहती थी कि हम किसी को छोड़ेगे नहीं।" .
(41) We may also refer to statement of P.W.6 where he has stated that :-
"सोबरन मेरी बहन पिंकी से शादी नहीं करना चाहता था। गिरधारी लाल व श्यामकली नहीं चाहते थे कि उनके बेटे सोबरन की शादी पिंकी से हो जाये।"
(42) We may also refer to the testimony of D.W.1 in this regard which reads as under:-
"गिरधारी लाल ने मुझे बताया था कि एक बेटा मेरा खत्म हो गया है इसलिए पिंकी देवी से सोबरन की शादी नहीं करूँगा"
(43) What comes out from the above analysis is that appellants did not want Sobran to get married to Pinki and even Sobran did not want to marry her but Pinki wanted to get married and stay with Sobran. Demand of dowry as a precondition in this regard has not been proved. While Pinki was living at the parental house, appellants settled Sobran's marriage elsewhere, which obviously peeved and annoyed Pinki who came back to her in-laws house. Obviously, she would have objected to settlement of Sobran's marriage elsewhere but appellants, as also Sobran, did not agree. This according to us in the absence of any other credible evidence, would not give sufficient motive for the crime. Motive, as alleged, apart from being found partly false as demand of dowry has not been proved, is highly suspect and weak. Conduct of the appellants in taking Pinki to hospital and getting her treated as also remaining in the hospital throughout her treatment till her death and then taking her body, after post-mortem, for cremation to their village also supports our opinion. The informants side on the other hand did not attend the cremation. In this context, we are reminded of the words of 'Taylor' in his book 'Treatise on the Law of Evidence' which has been fruitfully referred in various decisions such as the one rendered in the case of 'Irfan @ Naka vs. State of Uttar Pradesh' reported in (2023) SCC Online 1060 which are as under:-
"Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may effect the accuracy of his statements and give a false colouring to the whole transaction. ". [See: Taylor on Treatise on the Law of Evidence, 1931, 12th Edition Pg. 462]
(44) We may also in this very context refer to the observations of Corpus Juris Secundum Vol XL, Page 1283 which has also been referred in the same various decision of Hon'ble the Supreme Court which are as under:-
"In weighing dying declarations, the jury may consider the circumstances under which they were made, as, whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross-examine him, and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled."
(45) The law is settled that the Court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court which on assessment of the circumstances and evidence and material on record, will come to a conclusion about the truth or otherwise of the version be it written, oral, verbal or by signed or by gestures. Reference may be made in this regard in the case reported in (2007) 15 SCC 465 'Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra Pradesh' & (2012) 4 SCC 327 'Bhajju @ Karan Singh'. The dying declaration must inspire confidence and should be truthful and credible. It should not be prompted by a motive of revenge, tutoring or prompting as held by Hon'ble the Supreme Court in the case reported in (2002) 6 SCC 710 'Laxman vs. State of Maharastra'; (2005) 9 SCC 113 'Muthu Kutty & Anr. vs. State by Inspector of Police, T.N.' & (2023) SCC Online 1060 'Irfan @ Naka vs. State of Uttar Pradesh'.
(46) Keeping in mind the enunciation of law quoted above, purely in the facts of this case and evidence before us, we do not find it safe to hold the appellants guilty of murder only on the basis of dying declaration. The probability of the deceased having given such statement to take revenge from the appellants who were not agreeable to her marriage with Sobran cannot be ruled out, as she felt aggrieved. Nobody has seen the incident. As already stated, motive is highly suspect and in any case weak. P.W.1, P.W.2 and P.W.6 apart from being related witnesses were not present at the scene of crime. Their testimonies suffer from inconsistencies and contradictions. The allegation that non-fulfillment of demand of dowry which was a precondition for settling marriage with Sobran has not been found to be proved and the appellants have been acquitted of the charge under Section 3 of the Dowry Prohibition Act as also Section 304B I.P.C. There are no other independent witnesses. The prosecution has failed to prove its case beyond reasonable doubt that appellants had murdered the deceased.
(47) Learned trial court has held the appellants guilty of murdering the deceased on the basis of dying declaration of the deceased and testimony of P.W.4-the Autopsy Surgeon and the testimonies of P.W.1, P.W.2 and P.W.6 all of whom are related to the informant's side, P.W.1 being the brother, P.W.2 being the aunt and P.W.6 also being the brother. None of the said witnesses were present at the time of incident, therefore, their testimony could not possibly have any evidentiary value so far as incident which occurred on 31.03.2014 at 07:00 A.M. in the morning nor could it have any relevance as to the manner the alleged crime was committed, that is, pouring kerosine oil and burning the deceased. So far as the testimony of the Autopsy Surgeon i.e. P.W.4 is concerned, it only proved that death was caused due to shock resulting from ante-mortem burn injuries but how was the deceased burnt and who burnt her are questions which could not be answered based on the testimony of P.W.1, P.W.2, P.W.4 and P.W.6. As regards reliance placed by learned trial court on the dying declaration, we have already considered its reliability in the facts of this case and evidence on record. We have found that in the facts and evidence on record, it is not safe to hold the appellants guilty merely on the basis of said dying declaration without it being corroborated by any other evidence. For the presence of the appellants in the house at the time of incident, the only evidence is the dying declaration, as, testimony of the none of the other witnesses is relevant in this regard. It has come in the testimony of the defence witnesses that Jeth and Jethani i.e. appellant nos.3 and 4 were residing separately. Appellants had taken the plea of alibi. Appellant no.1-Girdhari Lal has stated in his statement under Section 313 Cr.P.C. that he was innocent. At the time of incident, he, Shyamkali, Sunita, Asha Devi, Mantuna and Visheswar were cutting Masoor in Rohit Singh's field. Visheswar went to Lucknow from the field. Pinki Devi had set herself on fire with kerosine oil and committed suicide as she was annoyed by the fact that her marriage could not be settled with Sobran. Appellant no.2-Smt. Shyamkali has stated in her statement under Section 313 Cr.P.C. likewise. Appellant no.3-Visheswar who is Jeth of the deceased and used to reside separately has stated that he is innocent and he has been falsely implicated. He was not at the house but was at Lucknow. Likewise, appellant no.4 has stated that she was innocent. She was not at the house. Her house is far from the house of Pinki Devi. Now, in this context, learned trial court has scrutinized the testimony of defence witnesses and has found that though appellant no.3 has stated that he was not in the house but was at Lucknow but the defence witnesses i.e. D.W.1 has stated about presence of appellant no.3 - Visheswa in the village at the agricultural field along with the appellants and other persons and also he had accompanied them to the house of appellant no.1 on receiving information about Pinki, therefore, learned trial court has not found the defence witnesses to be reliable. However, in doing so, firstly, it has lost sight of the fact that first and foremost, the burden lay on the prosecution to establish presence of the appellants in the house at the time of the incident and in this regard, the only evidence available was the dying declaration which has already been discussed hereinabove and we have opined that it is not by itself reliable to convict the appellants for the offence of murder. Further, learned trial court has lost sight of the statement of appellant no.1 under Section 313 Cr.P.C. that Visheswar (appellant no.3) had gone to Lucknow from the agricultural field, therefore, even if there may have been some exaggeration in the statement of some of the defence witnesses about Visheswar having accompanied them to the house on receiving information about Pinki, the same would not by itself be totally unbelievable. In any case, the prosecution has failed to establish presence of the appellants in the house beyond reasonable doubt and of having committed the murder of Pinki. Surprisingly, learned trial court in this very context has referred to averments made in the bail application dated 24.12.2014 of appellant nos.3 and 4 i.e. Visheswar and Smt. Sunita without the same having been marked as evidence and without the appellants-accused having been confronted with the said document at the stage of Section 313 Cr.P.C., that in the said bail application, it had been averred that clothes of Pinki had caught fire accidentally while cooking. We fail to understand as to how any averment made in an application for enlargement on bail could be treated as evidence as at the time of moving of the application, appellant nos.3 and 4 were in jail and, as even otherwise, the said application was never exhibited as evidence. All the defence witnesses have consistently stated that they along with other villagers had given affidavit to the police about innocence of the appellants and their presence in the agricultural fields on account of which the police did not lodge the F.I.R. initially.
(48) In our opinion and in view of the discussion already made, learned trial court has erred in convicting the appellants of the offence of murder. Its judgment is, therefore, not sustainable on facts and in law. Learned trial court has failed to appreciate the evidence in its proper perspective and its findings are perverse. The judgment of the trial court is set aside.
(49) Accordingly, the appeal is allowed.
(50) Appellant no.1, namely, Girdhari Lal and appellant no.3, namely, Smt. Shyamkali are in jail. They shall be released forthwith. Appellant no.2, namely, Visheswar and appellant no.4, Smt. Sunita are already on bail. Bail bonds submitted in respect of them are cancelled and sureties are discharged. Appellants are directed to file a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure within six weeks.
(51) The original records shall be remitted to the trial court for necessary action, as per law.
(Manjive Shukla, J.) (Rajan Roy, J.)
Date:-12.11.2025
Shanu/-
