Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Conviction U/s 498A, 304B I.P.C.- D/D Not Truthful And Hear-se-relative Witnesses Not Reliable-appeal Allowed-conviction Set Aside.
JUDGEMENT TITLE : Govind Hari Swamy And Another Vs. State Of U.P. On 05/25/2011 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 5544 OF 2006
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
RESERVED


Criminal Appeal No. 5544 Of 2006

Govind Hari Swamy And Others......... Vs.....................State Of U.P.


Connected With


Criminal Appeal No. 5545 Of 2006
Manoj And Another............... .......Vs.............................. State Of U.P.

Hon. Vinod Prasad, J
Appellants, A Family, Consisting Of Govind Hari Swamy (A1) His Wife Smt. Gomti (A2) And Their Three Sons Manoj (A3), Ajay (A4) And Jeewanshu (A5) Have Questioned Their Convictions And Sentences U/S 498-A And 304 B IPC Vide Impugned Judgement And Order Dated 14.9.2006,recorded By Additional Sessions Judge, Court No. 6, Ghaziabad In S.T. No. 68 Of 2001, State Vs. Manoj And Others, Relating To Crime No. 667 Of 2000.All The Appellants Have Been Convicted U/S 498A IPC And Have Been Sentenced To Three Years R.I. With A Fine Of Rs. 10,000/- And In Default Thereof To Under Go One Year Additional Imprisonment. A2 And A3 Have Been Additionally Convicted U/S 304 B IPC With Imposed Sentence Of Ten Years R.I And Their Both The Sentences Have Been Ordered To Run Concurrently By The Trial Judge.
Genesis To The Present Appeals Lies In Prosecution Allegations Scribed And Levelled By The Informant Subhash P.W. 1 In His Written Report Ex. Ka-1 Dated 9.9.2000, According To Which His Cousin Sister Shashi (deceased) Was Married To A 3 On 25.1.2000, Seven Months Prior To Her Death. A1 And A2 Were Her In- Laws Where As A4 And A5, Were Her Brother-in-laws (Devars).Briefly Stated, It Was Alleged By The Informant That His Sister, Shashi Was Murdered By Setting Her Ablaze After Pouring Kerosene Oil Upon Her On 8.9.2000 Because Of Non Fulfillment Of Dowry Demand Of A Motor Cycle And, After She Was Fatally Burnt, To Save Their Skin, Appellants Got Her Admitted In Safdarjung Hospital, New Delhi.
FIR Regarding The Incident Was Lodged On 9.9.2000, At 6.30 P.m. At P.S. Singhani Gate, District Ghaziabad Registered As Crime No. 667 Of 2000 Initially U/s 498-A And 307 IPC And ¾ D.P. Act But, Subsequently, After The Death Of The Deceased, On Same Day, It Was Converted To U/s 498-A And 304-B IPC And Section ¾ Of D.P. Act. Chick FIR Ex. Ka 9 On The Basis Of The Written Report Ex. Ka 1 Was Prepared By Constable Clerk Arvind Kumar With Relevant GD Entry Ex. Ka 10.
While The Deceased Was Being Treated In Safdarjung Hospital, New Delhi, Her Dying Declaration Was Recorded By PW4 K.R.Mehdiratta, SDM, Delhi Gate, On 8.9.2000 As Ex. Ka 3 And Subsequent To That Same SDM Jotted Down 164 Cr. P.C. Statements Of Deceased Parents Smt. Sharda And Budh Dev,P.W. 2 And P.W.3 As Ex. Ka 4 And Ka 5. After Demise Of Shashi,inquest On The Dead Body Of The Deceased Was Also Conducted By PW4 Who Has Proved It As Ext. Ka 8.Letter Requesting For Conducting Her Post Mortem Examination Was Also Prepared By The Same Witness Who Has Proved It As Ex. Ka 6 And Ka 7.
Post Mortem Examination On The Cadaver Of The Deceased Was Performed On 11.9.2000 By Dr. Chandra Kant P.W. 8, Who Has Proved His Autopsy Report Ex. Ka 13 Alongwith Case Sheet Of The Deceased Prepared At Safdarjung Hospital New Delhi Ex. Ka 15 And 16. Dr. P.W. 8, Chandra Kant Noted Conditions Of The Dead Body Of The Deceased As Under;-
"alleged History As Per MLC Of Safdarjung Hospital New Delhi--suicide Burn By Pouring Kerosene Oil On Herself And Set Herself On Fire Due To Some Dispute With Her In-laws.
" Alleged History As Per The Statement Of The Deceased That On 8.9.2000 At About 6 A.m. Her Husband Poured Kerosene Oil On Her And Set Her On Fire And Closed The Door From Outside. Deceased Was Brought And Admitted In Safdarjung Hospital, New Delhi On 8.9.2000 About 8. 50 A.m. And She Expired On 9.9.2000 At About 10.45 P.m.
Dead Body Received In Private Sheet With Bandages In Both Thigh. Eyes And Mouth Were Closed. Rigour Mortise In Both Upper And Lower Limbs Were Found. Post Mortem Staining Not Appreciable Due To Ante Mortem Burns. No Signs Of Putrefaction Was Present. Singing Of Scalp Hair Anteriorly, Eye Brows And Eye Lashes.
Ante Mortem Burns Injury: 90 % Superficial And Deep Ante Mortem Burns Covering The Whole Body Except Posterior Aspect Of Scale (occipital Region) Part Of Both Palms, Perineum, Both Soles And Ankle And Part Patches On The Posterior, Aspect Of Trunk. Charring Of Stems Partly On Forehead, Right Shoulder And Posterior Aspect Of Left Elbow, Skin Peeled Off At Places Revealing Area Of Vital Reaction.

Internal Examination:- Scalp- As Described
Skull- NAD
Brain- Congested With Haemorrhage
Larynx- Congested With Fine Carbon Soot Mixed With Mucus External Up To Bifurcation Of Trachea
Right Lung -congested
Left Lung- Congested
Heart- NAD
Stomach- Semi Digested Liquid Contains Mucosa Healthy
Liver- Congested
Kidneys- Congested.
Spleen-congested.
Uterus-empty.
Time- Since Death - About 39 - 41 Hours
Cause Of Death- Shock, Toxaemia As A Result Of 90 % Superficial And Deep Ante Mortem Burn Caused By Flames.
Initial Investigation Into Crime Was Conducted By Sub Inspector B.S. Chahar, First Investigating Officer Who Had Recorded Statements Of Witnesses And Had Prepared Site Plan Ex. Ka 11.From Him S.P. (R.A.) Moradabad, Ashok Kumar Took Over The Investigation On 11.9.2000, And Concluding It Charge Sheeted The Appellants On 29.11.2000 Vide Ex. Ka 12.
Persuent To Charge Sheet Case No. 3602 Of 2000, State Versus Manoj And Others Was Registered In The Court Of ACJM II, Ghaziabad Who Summoned All The Accused For Offences U/Ss 498A,304B IPC And ¾ D.P.Act And Finding Their Case Triable By Session's Court Committed It To The Session's Court For Trial On 17.1.2001 , Where It Was Registered As S.T.No. 68 Of 2001 On 30.1.2001.
Additional Sessions Judge F.T.C. Court 1 Ghaziabad Charged Accused Persons For Offences U/s 498-A, 304-B IPC On 18.4.2002 And Since All The Accused Abjured All The Charges And Claimed To Be Tried And Hence Trial Procedure Was Under Taken To Establish Their Guilt.
To Bring Home The Charges, Prosecution Relied Upon Testimonies Of Seven Of It's Witnesses Of Whom Informant P.W. 1 Subhash, Parents Of Deceased Smt. Sharda And Budhdev P.W. 2 And P.W. 3 And Her Brother Sushil Kumar Sharma P.W. 5 Were Witnesses Of Fact. SDM, New Delhi K.R. Mehdiratta, Who Had Recorded Dying Declaration Of The Deceased Was Examined As P.W. 4. Two Investigating Officers, Sub Inspector B.S. Chahar And Ashok Kumar S.P. (R.A.) Moradabad Were Produced As P.W. 6 And 7 And Post Mortem Doctor Chandra Kant Was Examined As P.W. 8 As Formal Witnesses.
Under Section 313 Cr. P.C., Incriminating Circumstances Put To The Appellants Were Denied By Them Who Took The Plea That The Deceased Committed Suicide Because Of Her Mental Condition, As She Had Aborted Few Days Ago Prior To Her Death And Was Ailing. To Establish Their Defence, Accused Persons Examined D.W. 1 Yash Pal, D.W. 2 Prabhat Kumar Mittal And D.W. 3 Prahlad Singh.
Trial Judge Came To The Conclusion On The Basis Of Evidences Led In The Trial That Prosecution Has Successfully Established Charges Of Of Dowry Demand Against All Accused U/S 498A IPC And Of Causing Dowry Death U/S 304 B IPC Only Against A2 And A3 And Therefore Convicted And Sentenced Them As Mentioned Herein Above, Hence Two Connected Appeals One By Husband And Mother-in-law Being Criminal Appeal No. 5545/06 And Second By Rest Of The Accused Being Criminal Appeal No. 5544 Of 2006. Since In Both The Appeals Impugned Judgement Is The Same Therefore, It Both Were Clubbed Together And Are Being Dispose Off By This Common Judgement.
I Have Heard Sri S.P.S. Raghav Learned Senior Counsel In Support Of Both The Appeals And Sri K.N. Bajpai Learned AGA In Opposition And Perused The Entire Material On Record Of Trial Court.
Castigating And Criticising Impugned Judgement Learned Sr. Counsel Contended That First Informant P.W. 1 Was Not Present At The Spot, He Was Sent For By The Parents And He Had Lodged A False FIR And Earliest Allegation Was That Of Suicide. Depositions Of PW2,3 And 5, Parents And Brother Of The Deceased Are Full Of Contradictions, Embellishments, Un-naturalities And Improbabilities And Do Not Inspire Any Confidence And Therefore Should Not Be Acted Upon.After Deceased Attempted Suicide All Possible Endeavour Was Made By The Appellants To Save Her Life And Therefore She Was Firstly Rushed To Yashoda Hospital And From There She Was Taken To Poddar Nursing Home And Subsequently To Safdarjang Hospital, New Delhi Therefore, No Charge U/S 304-B I.P.C. Was Established Against The Appellants. Dying Declaration Recorded By SDM Is Manufactured And Dicey And Can Not Be Acted Upon. Conduct Of The Parents And Brother Of The Deceased Is Weird And Does Not Lend Credence To Prosecution Charge Of Dowry Death. PW2 And 3, In Their 164 Statements Have Exonerated Appellants From The Charges Of Dowry Demand And Dowry Death. A-1, A-4 And A-5 Have Been Wrongly Convicted Under Section 498-A I.P.C. Without There Being Any Reliable Evidence Against Them. Deceased Had Set Herself To Fire Because Of Psychological And Mental Trauma And She Was Not In A Position To Make Any Declaration. Prosecution Has Not Come With Clean Hands And It Intentionally And Deliberately Withheld Sudha Sharma, Sister Of Mother-in-law, Who Had Got The Marriage Settled And Was The First To Come To Know About Setting Ablaze Of The Deceased, From Being Examined As It's Witness. According To Prosecution Version Since Deceased Had Divulged The Incident To Her At The Earliest Therefore, Withholding Of Sudha Sharma Goes Against The Prosecution Side A Long Way. Tutoring Of The Deceased Cannot Be Ruled Out And So Far As The Case Sheet Of The Deceased Is Concerned, It Contradicts Prosecution Allegations. Facts Recorded In Exhibits Ka-15 Ka-16, Depicts Altogether Different Incident Than As Alleged By Prosecution And Since Theses Documents Have Been Got Exhibited By The Prosecution They Can Not Be Eschewed From Consideration. It Is Further Submitted That The Appellant-husband, A3 Had Remained In Jail Continuously After The Occurrence And, Therefore, Has Served Out Practically Entire Sentence Short Of Few Days. It Was Also Submitted That There Was No Evidence Of Demand Of Dowry Soon Before Death And Therefore Charge U/S 304 B Must Fail. Wrapping Up Of The Argument, It Was Submitted That Both The Appeals Be Allowed And Convictions Of The Appellants Be Set Aside.
Sri K.N. Bajpai, Learned AGA On The Contrary Submitted That There Was No Occasion For The Deceased To Falsely Implicate The Appellants, Dying Declaration By The SDM Is Un-embellished And Establish The Charge Of Dowry Demand And Dowry Death Against A-2 And A-3, Death Had Occurred Within Seven Months Of The Marriage, Deceased Was Hail And Hearty And, Therefore, There Was No Occasion For Her To Give A False Declaration. It Was Also Submitted That The Impugned Judgment Of Conviction And Sentence Has Been Rightly Recorded And Both The Appeals, Therefore, Deserves To Be Dismissed.
I Have Considered The Arguments By Both The Sides And Have Summated The Facts And Evidences .
In This Appeal Some Of The Unchallenged Facts Are That The Deceased Was The Wife Of A3 And Her Marriage Was Solemnized With A3 On 25.1.2000. Inter-se Relationship Between Appellants Is Also Not In Dispute. Date And Time Of Death Of The Deceased Is Also Not A Bone Of Contention And Therefore She Lost Her Life Within Seven Months Of Her Marriage. Real Bone Of Contention Is Regarding Demand Of Dowry And Causing Of Deceased Murder Because Of Non- Fulfillment Of The Same. On The Above Issues When Evidences Of Fact Witnesses Are Crtically Appreciated It Is Revealed That So Far As P.W.-1 Is Concerned, He Is Not A Very Reliable Witness. His Cross Examination Indicates That He Has Prevaricated On All Major Facts And Has Consciously Deposed Irreconcilable Statements. His Statement Regarding His Relationship With The Deceased, Weather Deceased Was Class 10th Pass Or Fail, His Ignorance Regarding Expenses In The Marriage Etc All Are False Statements. He Had Also Not Mentioned Regarding Demand Of Dowry Of Motorcycle In His FIR Nor He Had Mentioned The Same To The Investigating Officer In His Statement Under Section 161 Cr.P.C. Regarding Payment Of Rs. 10,000/- To The Appellants One And Half Months Prior To Deceased Death Was Also Not Divulged During Investigation To The I.O. His Uncle (mausa) Is A Practicing Advocate In Khurja, District G.B. Nagar, Yet He Did Not Sought His Help In The Matter. He Had Not Informed The I.O. That He Was Allowed To Meet The Deceased When She Was Battling For Her Life In The ICU In Safdarjung Hospital. Although He Claimed That He Was Allowed To Meet The Deceased In The ICU And Has Conversed With Her And It Was She Who Had Disclosed The Incident To Him Yet He Had Not Mentioned Demand Of Motor Cycle And Payment Of Ten Thousand Rupees In His FIR Albeit He Claims That He Had Scripted The FIR After Being Informed About The Same From The Deceased. Although Residing In A Joint Family Has Denied That Few Months Earlier To Her Death, Deceased Had A Miscarriage And Was Got Treated For The Same By The Appellants At Ghaziabad, Although According To PW2 , Deceased Mother, Said Was A Fact.
Record Further Reveals That So Far As Depositions Of The Parents Of The Deceased P.W.-2 Smt. Sharda Devi And P.W. 3 Budh Dev Are Concerned, They Are Also Not Wholly Reliable Witnesses. In Their Earliest Statements Under Section 164 Cr.P.C. Recorded By SDM At Delhi, P.W.3 Budh Dev Father Of The Deceased Had Stated Without Any Ambiguity In No Uncertain Terms That There Was No Demand Of Dowry, Deceased And Her Husband A-3 Were Living Happily Prior To Her Death And On The Occasion Of Festivity Of Raksha Bandhan, They Had Come To His House And Had Spent A Happy Time. 164 Cr.P.C. Statement Of The Father P.W.-3 Does Not Indicate Any Demand Of Dowry And Torture Of Deceased Because Of That Rapacity.PW3 Has Accepted Contents Of His Statement U/S 164 Cr.P.C. And, Therefore, His Deposition In Court Suffers From Serious Contradictions With His Own Testimonies Making Him Unreliable And Un Creditworthy Witness. His Conduct Further Erodes His Credibility As He Never Efforted To Meet Her Daughter In The Hospital Nor Even Endeavoured To See Her. His Entire Cross Examination Is Addressed To Significant Vital Omissions And Contradictions In His Depositions Which Dissipates Credibility Of Prosecution Allegations. Some Of Such Contradictions Are Referred To Herein Below:-
"In Delhi, I Have Informed The Magistrate That When I Got Shashi Married With Manoj Then He Had Demanded Rs. 50,000/-. If The Magistrate Has Not Written The Aforesaid Fact, I Cannot State The Reason For The Same."
(Statement At Page 3 By P.W.-3)
"I Had Also Informed The Magistrate That When Manoj His Brother And Father Had Brought Marriage Procession ........................... Used To Assault Because Of Non Fulfillment Of Dowry Demand.If The Aforesaid Statements Have Not Been Mentioned By The Magistrate In My Statement , I Cannot State The Reason For The Same."
(Statement At Page 3 By P.W.-3)
"In Delhi, I Have Informed The Magistrate That My Daughter Had Informed Me On Telephone That My In-laws, Relatives Are Demanding Money .................... Used To Complain About It. I Cannot State The Reason Why These Statements Are Not Mentioned By The Magistrate In My Statement."
( Page 3 Para 2 Of Deposition Of PW3)
"I Had Informed The Magistrate That My Daughter Never Complained About In Laws Relatives"
(Statement Of PW 3 At Page 4)
" I Had Also Informed The Magistrate That She Never Informed Me About Demand Of Dowry Made In Her In-laws House . On The Last Occasion My Daughter And Son -in-law Had Come To Me Together On The Occasion Of Rakshbandhan And After Staying For A Night They Had Gone Back Gayfully And Since Then I Had No Conversation With My Daughter And Son-in-law...."
(Statement Of PW3 At Page 4)
P.W.-3 Contradicted Other Fact Witnesses When He Deposed That The Deceased Had Studied Only Up To 7th And 8th And 2 Or 3 Years Prior To Her Marriage, She Had Left Her Studies When She Was Studying In Class 8th. He Could Not Recollect The Name Of The Institution Where She Had Educated Herself. He Contradicted PW 1 By Testifying That Only He, His Wife And Nephew Subhash(PW1) Had Gone To The Hospital And There None Of Them Had Any Conversation With The Deceased And They Were Handed Over The Corpse Of The Deceased After Her Demise. It Was Suggested To Him That No Demand Of Dowry Was Made By The Accused And A False Case Was Set Up.
P.W.-2 Smt. Sharda Devi, Mother Of The Deceased In Her 164 Cr.P.C. Statement Recorded At The Earliest Point Of Time Did Not Allege Any Demand Of Dowry. She Contradicted Her Husband By Deposing In Her 164 Cr.P.C. Statement That Deceased Had Informed Her That She Was Starved For Three Days And She Was Burnt By Her Husband And Mother-in-law After Pouring Kerosene Oil. PW2 Is An Illiterate Lady. Her Cross Examination Also Indicate That Allegations Regarding Payment Of Rs. 10,000/- To A1 And A2 Fifteen Days Prior To Death Was Not Disclosed To The I.O. Significant Excerpts Of Her Testimonies Which Are Important Omissions And Fades Charges Leveled By The Prosecution Are Noted Below As Follows:-
"I Had Informed The Circle Officer In My Statement Regarding Payment Of Rs. 10,000/-. If The Aforesaid Statement Has Not Been Written By The C.O., I Cannot State The Reason For The Same."
(Statement At Page 2 By P.W.-2)
"In Delhi, Magistrate Has Recorded My And My Husband's Statement, I Have Informed The Magistrate About Assault Made On My Daughter Shashi And Demand Of Dowry And Rs. 10,000/- Sent. If Those Statements Are Not Mentioned By The Magistrate In My Statement, I Cannot State The Reasons For The Same."
(Statement At Page 3 By P.W.-2)
"In Delhi, In The Inquest, I Did Not Inform The Magistrate That After The Marriage, My Daughter Shashi Whenever Came To My House Used To Complain Against Her Husband And In-laws For Demanding Dowry And Torturing Her."
(Statement At Page 3 By P.W.-2)
"It Is Correct To Say That In Delhi, I Have Informed The Magistrate That After The Marriage, Shashi Used To Visit My House And She Had Never Complained Regarding Her Marriage Life Nor At Raksha Bandhan, She Had Made Any Complaint."
(Statement At Page 3 By P.W.-2)
"It Is Wrong To Say That I Met My Daughter Shashi In The Hospital And I Had Conversed With Her. In Delhi, I Had Not Given Such A Statement To The Magistrate That After Reaching Hospital, I Had Conversed With Shashi. I Cannot State The Reasons Why The Aforesaid Fact Has Been Mentioned By The Magistrate In My Statement."
(Statement At Page 3 And 4 By P.W.-2)
"It Is Correct To Say That Few Days Before Raksha Bandhan, Shashi Had A Miscarriage And Before The Miscarriage And After It The Accused Persons Got Her Treated In Ghaziabad."
(Statement At Page 4 By P.W.-2)
"It Is Correct To Say That After Being Burnt By Fire, Accused Persons Firstly Got My Daughter Treated At Ghaziabad In Yashoda Hospital And Then In Poddar Nurshing Home And After The Condition Became Serious, Brought Her To Safdarjung Hospital, Delhi."
(Statement At Page 4 By P.W.-2)
Both P.W. 2 And P.W. 3 Claimed That They Had Arrived At Safdarjung Hospital Before Death Of The Deceased But They Did Not Insist To Meet The Deceased, Who Was Battling For Her Life In The ICU. This Conduct Of The Parents Of The Deceased Is Wholly Unnatural And Does Not Inspire Any Confidence. At The Time Of Inquest Also Which Was Conducted By SDM, These Parents P.W. 2 And P.W.3, Did Not Divulge To The SDM Regarding Demand Of Dowry And Causing Of Dowry Death. P.W.-2 Has Admitted That She Had Disclosed To The Magistrate In Delhi That The Deceased Never Complained To Her About Any Family Fued And Differences In Her Marital Relationship. She Further Admitted That The Deceased Was Class 10th Fail And It Is Wrong To Say That She Had Met The Deceased In The Safdarjung Hospital And Thus She Contradicted Herself From Her 164 Cr.P.C. Statement And Attour She Also Resiled From Her Earlier Testimony Of Having Intimated The SDM About Meeting With The Deceased In The Hospital. Her Depositions Therefore Are Full On Self Contradictions, Which Diminishes Quality Of Her Evidence And Makes Her Charge Suspect. She Had Admitted That The Deceased Had A Miscarriage And It Were The Appellants, Who Got Her Treated At Ghaziabad. Her Disclosure Therefore Makes PW1 Not A Truthful Witness As He Had Denied This Fact. PW2 Also Corroborated PW3 When She Testified That On The Occasion Of Raksha Bandhan, A3 And Deceased Had Come To Them And Had Stayed With Them At Khurja. Significantly, She Admitted That After Deceased Had Caught Fire, Appellant-husband Had First Rushed Her To Yashoda Hospital And From There, She Was Transferred To Poddar Nurshing Home For Better Treatment And When Her Condition Started Deteriorating, She Was Immediately Rushed To Safdarjung Hospital At Delhi For Expert Management Of Her Injuries In An Endeavour To Save Her Life.
In View Of Above, From The Statements By The Two Most Important Prosecution Witnesses, Who Are None Else Than The Parents Of The Deceased, Edifice Of Prosecution Allegations Crumbles And Therefore It Is Difficult To Believe That There Was A Demand Of Dowry And The Deceased Was Murdered Because Of None Fulfillment Of It. On An Overall Analysis In A Dispassionate Way On The Scales Of Truthfulness It Is Difficult To Place Any Reliance On Them. Their Evidences Do Not At All Inspire Any Confidence And Consequently It Is Difficult To Conclude That On The Depositions Of These Fact Witnesses, Prosecution Has Brought Guilt Of The Appellant Accused Home Successfully.
Turning Towards Dying Declaration It Is Trite Law That Dying Declaration, Like Any Other Piece Of Evidence, Can Be Accepted Or Rejected In The Same Manner In Which The Depositions Of A Living Witness Can Be Done. If Adjudged To Be True Containing True And Faithful Narration Of Events It Does Not Require Any Corroboration To Establish Guilt Of The Accused And By Itself Is Sufficient To Prove The Charge. For A Dying Declaration To Be Acted Upon Has To Be Above Board And Free From All Suspicion. Section 32 Of Evidence Act Is An Exception To The General Rule Of Cross Examination By The Defence And Therefore, Before It Is Acted Upon, An Unblemished Credence Has To Be Attached To It And It Has To Be Proved Convincingly That Recording Of D/D Was Done Taking All Possible Precautions And It Is Free From Any Tutoring, Embellishment And Was True And Voluntary. Natural Corollary Of It Is That If The D/D Suffers From The Vices Of Tutoring , Concoction, Embellishment And Full Of Un-naturalities And Contradictions Etc It Has To Be Rejected Like Any Other Evidence. Further If The Dying Declaration Is Directly And Substantially Contradicted By The Other Surrounding Circumstances And Depositions Of Witnesses, It Cannot Be Accepted As A Gospel Truth And Has To Be Rejected As Untruthful. On This Aspect Some Of The Judicial Pronouncements Are As Follows:-
In Varikuppal Srinivas V. State Of A. P.:AIR 2009 SUPREME COURT 1487 It Has Been Observed By The Apex Court As Under :-
"8. Though A Dying Declaration Is Entitled To Great Weight, It Is Worthwhile To Note That The Accused Has No Power Of Cross-examination. Such A Power Is Essential For Eliciting The Truth As An Obligation Of Oath Could Be. This Is The Reason The Court Also Insists That The Dying Declaration Should Be Of Such Nature As To Inspire Full Confidence Of The Court In Its Correctness. The Court Has To Be On Guard That The Statement Of The Deceased Was Not As A Result Of Either Tutoring Or 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 Assailant. 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."
In Mohan Lal V. State Of Haryana: AIR 2007 SC (Supp) 1139 It Has Been Held By The Apex Court As Follows:-
"11. In The Instant Case, It Is To Be Noted That The Evidence Of PW-3 And Doctor Clearly Show That Before The Dying Declaration Was Recorded The Relatives Of The Deceased Including PWs-7 And 8 Were Present With Her And Were Subsequently Asked To Leave The Room Where The Dying Declaration Was Recorded. Though Much Was Made Of The Dowry Demand By The Courts Below There Is Only A Vague Reference To It In The Dying Declaration. The Statement Of PWs-7 And 8 That They Had Told The Investigating Officer About The Dowry Demand Is Not Correct. They Had Not Said So Before The Investigating Officer. It Is Also Significant That Prior To The Death, Neither The Deceased Nor Her Parents Had Complained To The Police Or Told Anyone Else About Any Alleged Dowry Demand. In The Circumstances, The Dying Declaration Itself Was Clearly The Result Of Tutoring And Was Not A Free And Voluntary One. The Courts Below Were Therefore Not Justified In Placing Reliance On The Same. Additionally, There Was Only A Vague Reference Of Dowry Demand To The Police Which In Any Event Has Not Been Established And Also Was Not Told During Investigation. Once The Dying Declaration Is Excluded, There Is Nothing To Implicate The Accused-appellants With The Death."
When The Dying Declaration Is Analyzed Within The Ambit Of Above Exposition Of Law, It Is Revealed That The Said Dying Declaration Can Not Be Proved By SDM PW4. He Has Not Questioned The Deceased Nor Has Written The Said D/D. It Is His Categorical Statement In Trial In The Last Paragraph Of His Deposition Dated 26.5.04 That "Statement Of Sharda Devi Which Was Recorded Under My Order Questions Were Asked To Her Were By My Reader. Generally Theses Questions Are Asked.My Reader Had Asked Those Questions. Statement Of Sharda Devi Which Was Written By The Reader Was Read Out To Sharda Devi By Reader. I My Self Has Not Read It To Sharda Devi. Note Regarding Reading Out To Sharda Devi By My Reader Is Left Unconsciously." The Aforesaid Statement By PW4 Indicate That SDM Himself Did Not Question The Deceased. He Was Only A Listener To The Questions Put By His Reader To The Deceased. He Himself Had Not Read That Statement To Her And Therefore His Deposition In Respect Of That Statement Is Only A Hearsay Evidence And Is Inadmissible. Consequently Note Appended By SDM In Said D/D That He Had Recorded The D/D In His Own Handwriting Is A False Statement Of Fact Contradicted By The SDM Himself. Over And Above Prosecution Could Not Muster Courage To Examine The Reader. No Questions Regarding Her Condition Was Put To The Deceased. Further, Allegations In The D/D Is Only Against The Husband And Mother-in-law Which Was Stated Before SDM At Delhi At 7.25 P.m. Prior To It, Deceased Was Treated In Yashoda Hospital And Poddar Nurshing Home But She Had Not Lodged Any Complaint There. She Had Completely Exonerated Father-in-law And The Two Dewars. In Her Dying Declaration, There Is No Allegation In Their Respect. She Gave A False Statement That She Is 10th Pass Although Her Mother Is Clear And Categorical That She Was 10th Fail. According To Her Statement For A Period Of Half An Hour, She Continued To Burn In A Bolted Room, Which Fact Is Belied By Site Plan Prepared By The I.O. She Had Not Made Any Allegation Regarding Demand Of Motorcycle, Rupees Fifty Thousand And Payment Of Rs. 10,000/- By Her Parents. She Had Further Stated That On The Previous Night, Her Husband Had Assaulted Her Which Fact Has Not Been Stated By Any Of The Witnesses Including P.W.-1 Although He Claimed That He Had A Conversation With The Deceased In The Hospital. Site Plan Does Not Support Her Version Of Being Burnt Inside A Bolted Room. Prosecution Has Nowhere Challenge The Genuineness Of The Said Site Plan. Further Her Dying Declaration Is Contradicted By Ex. Ka 15 And 16 Directly And Substantially. Hospital Record Indicates That She Was Brought To The Hospital By Her Dewar Jeewanshu A-5 Vide Exhibit K- 15 And 16 And Death Summary Of The Deceased Exhibit K-15 Further Indicate That The Injury Suffered By Her Was Self Suffered. It Is Further Recorded In The Said Death Summary Prepared On 9.9.2000 Proved By P.W.-8 That "alleged H/O) Sustaining Burn Injury By Pouring Kerosene Oil And Lighting Herself In A Suicidal Attempt Due To Some Dispute With In-laws." Exhibit K-16, Which Is Medical Report Prepared In Safdarjang Hospital Also Mentioned As Follows;-
"alleged History Of Suicidal Burn By Pouring Kerosene Oil On Herself And Setting Herself On Fire Due To Some Dispute With Her In-laws."
In View Of Aforesaid Two Documents, Which Are In Direct Contradiction With The Dying Declaration Vis-a-vis With The Evidences Of The Parents, It Is Difficult To Conclude That The Deceased Was Burnt To Death By The Appellants Because Of Demand Of Dowry. Exhibits Ka 15 And 16 Have Been Got Proved And Exhibited By The Prosecution Itself And Therefore It Can Not Now Resile From It's Contents. More Over Prosecution Has Failed To Establish It's Case Regarding Demand Of Dowry Soon Before Death Of The Deceased As Above Analysis Reveal That Allegation Of Payment Of Money To The Appellants Is An Unestablished Charge. Mausa, Who Is Alleged To Have Accompanied PW1 For Payment Of Rs. Ten Thousand Never Entered Into The Witness Box To Corroborate Prosecution Witnesses, Who Have Not Disclosed That Fact At The Earliest Point Of Time To The SDM Or To The I.O. Conduct Of The Appellants Of Making All Efforts To Save Death Of The Deceased Further Dents Credibility Of Dying Declaration And Prosecution Allegations. Most Serious Criticism About Acceptance Of D/D Is That There Is No Certificate Appended On It By Any Of The Doctor That The Deceased Was In A Fit State Of Mind To Make Such A Declaration. This Most Important Significant And Vital Omission By The SDM Makes His Recording Suspect Keeping In View The Time Spent Between Such A Recording And Death Of The Deceased And Extensive Burns Sustained By Her, And Who Expired On 10.10.2000 At 12.50 A.m. Vide Ex. Ka 6. Through Out Defence Has Challenged Recording Of D/D As It's Case Is That The Deceased Was Not In A Fit State Of Physical And Mental Condition To Make Such A Declaration. A Glimpse Of D/D, Exhibit K-3 Only Indicate A Certificate By The Writer Of The Declaration SDM, Delhi Cantt, That The Statement Of Deceased Shashi Was Recorded By Him In His Own Handwriting, Which Fact Is A Blatant Lie, Testified By SDM Himself. In Absence Of Any Certificate By The Doctor Prior To Recording Of The Dying Declaration That She Was In A Fit Mental State To Give The Declaration In A Coherent And Convincing Manner, No Reliance Can Be Placed On The Said Statement Especially When It Is Mentioned In Her Autopsy Report That She Had 90% Superficial And Deep Burns. It Is Further Noted That The Said D/D Was Not Recorded In The Presence Of The Doctor Nor There Is Evidence To That Effect And Hence It Is Difficult To Rely Upon Such A D/D In Total Absence Of Any Evidence Regarding Mental And Physical Condition Of The Deceased. It Is The Burden Of The Prosecution To Establish It's Charge To The Hilt. On This Aspect, Reliance Can Be Had On The Following Decisions Of This Court As Well As Of The Apex Court.
In Kanti Lal V. State Of Rajasthan:AIR 2009 SUPREME COURT 2703apex Court Has Held As Under:-
"21. It Is Well-settled That One Of The Important Tests Of The Credibility Of The Dying Declaration Is That The Person, Who Recorded It, Must Be Satisfied That The Deceased Was In A Fit State Of Mind. For Placing Implicit Reliance On Dying Declaration, Court Must Be Satisfied That The Deceased Was In A Fit State Of Mind To Narrate The Correct Facts Of Occurrence. If The Capacity Of The Maker Of The Statement To Narrate The Facts Is Found To Be Impaired, Such Dying Declaration Should Be Rejected, As It Is Highly Unsafe To Place Reliance On It. The Dying Declaration Should Be Voluntary And Should Not Be Prompted And Physical As Well As Mental Fitness Of The Maker Is To Be Proved By The Prosecution.
22. In The Present Case, As Noticed Above DW-2 Has Not Taken Any Certificate From The Doctor To Prove That The Deceased Was In A Fit State Of Mind To Give Statement Nor He Has Recorded Any Endorsement To That Effect On The Alleged Dying Declaration [Ext.-D/4]. Another Factor Which Impairs The Credibility Of The Alleged Dying Declaration [Ext.-D/4] And Belies The Statement Of DW-2 Was That, According To Dr. Vasudev, Dying Declaration Was Recorded By The Reader Of The Tehsildar And Not By DW-2. It Is Also Proved On Record That DW-2 Did Not Ask Preliminary Questions From The Deceased Before The Dying Declaration Allegedly Made By Her Was Recorded And This Fact Also Created Doubt About The Correctness And Truthfulness Of The Dying Declaration. It Is Also The Evidence Of DW-2 That After Recording The Alleged Statement Of The Deceased, He Did Not Seal The Dying Declaration And Unsealed Document Was Handed Over To The Station House Officer. DW-2 Has Not Produced On Record The Original Copy Of The 'Tehreer' Submitted To Him By A Constable Requesting Him To Visit The Hospital For Recording The Alleged Dying Declaration Of The Deceased, And A Carbon Copy Whereof Was Produced By Him During His Cross-examination. A Categorical Refusal Of Putting Her Signature Or Thumb-impression On The Alleged Dying Declaration [Ext.-D/4] By PW-6 - Bhanvri [mother Of The Deceased] Would Further Go To Prove That The Alleged Dying Declaration Was Not At All Recorded By DW-2 In The Room Of The Hospital Where The Deceased Was Lying Before She Died. The Above-stated Facts And Circumstances Would Prove That The Alleged Dying Declaration, On Which Much Reliance Has Been Placed By The Defence, Cannot Be Said To Be An Admissible And Reliable Document. The Fact That The Alleged Dying Declaration [Ext.-D/4] Did Not Bear Endorsement Of DW-2 To The Effect That It Was Read Over And Explained To The Deceased, Also Created A Doubt On Its Credibility And Truthfulness. The Trial Court As Well As The High Court Both Have Concurrently And, In Our Considered View, Have Rightly Rejected The Genuineness And Credibility Of The Alleged Dying Declaration To Prove The Defence Version That The Deceased Made The Said Statement To DW-2 And She Died Because Of Accidental Death. We Agree With The Findings And Reasoning Of The Courts Below That The Alleged Dying Declaration [Ext.-D/4] Suffers From A Number Of Basic Infirmities And Such Dying Declaration Cannot Be Found Admissible And Accepted As Genuine Document."
In"Nallapati Sivaiah V.Sub-Divisional Officer, Guntur, A. P.:AIR 2008 SUPREME COURT 19 It Has Been Held By The Apex Court As Under:-
"38. In Our Considered Opinion, The Medical Evidence And Surrounding Circumstances Altogether Cannot Be Ignored And Kept Out Of Consideration By Placing Exclusive Reliance Upon The Testimony Of Person Recording A Dying Declaration.
39.The Dying Declaration Must Inspire Confidence So As To Make It Safe To Act Upon. Whether It Is Safe To Act Upon A Dying Declaration Depends Upon Not Only The Testimony Of The Person Recording Dying Declaration - Be It Even A Magistrate But Also All The Material Available On Record And The Circumstances Including The Medical Evidence. The Evidence And The Material Available On Record Must Be Properly Weighed In Each Case To Arrive At Proper Conclusion.The Court Must Satisfy To Itself That The Person Making The Dying Declaration Was Conscious And Fit To Make Statement For Which Purposes Not Only The Evidence Of Persons Recording Dying Declaration But Also Cumulative Effect Of The Other Evidence Including The Medical Evidence And The Circumstances Must Be Taken Into Consideration."
In "Shaikh Rafiq V. State Of Maharashtra: AIR 2008 SUPREME COURT 1362 It Has Been Laid Down By The Apex Court As Under:-
" In His Cross-examination, He Stated That He Was Serving In The Department For The Last 30 Years And Was Aware About The Procedure Of Recording Dying Declaration And Was Aware Of The Fact That Special Executive Magistrates Were Also Available For Recording The Dying Declaration But He Did Not Call Any Of Them. It Was Further Admitted By Him That He Was Accompanied By The Medical Officer To The Burn Ward To Identify Noor Miya Mohd. Hussain (since Deceased) And He Did Not Take The Certificate Of Fitness From The Doctor Whether Noor Miya Mohd. Hussain (since Deceased) Was In A Position To Give Statement Or Not. He Further Admitted That He Did Not Obtain Endorsement Of The Medical Officer About Consciousness Of Noor Miya Mohd. Hussain (since Deceased) And He Did Not Record The Time Of The Dying Declaration Being Recorded.
3. Considering The Dying Declaration And The Manner In Which It Was Recorded, We Cannot Rely Upon The Dying Declaration Recorded By PW 1. Apart From This Fact, There Is No Other Evidence On Record To Implicate The Appellants In The Incident."
In View Of Aforesaid Unsatisfactory Evidences, It Is Difficult To Lend Credence To The Prosecution Story.
For The Reasons Mentioned Above Impugned Judgment Of Conviction And Sentence Imposed Upon The Appellants Are Not Infallible And Is Liable To Be Interfered With.
In View Of Above, Both The Appeals Are Allowed. Conviction And Sentences Of All The Appellants Recorded By The Trial Court, Additional Sessions Judge, Court No. 6, Ghaziabad In S.T. No. 68 Of 2001, State Vs. Manoj And Others, Vide It's Impugned Judgement And Order Dated 14.9.2006, Relating To Crime No. 667 Of 2000, PS Singahni Gate, Ghaziabad Is Hereby Set Aside And All The Appellants Are Acquitted Of All The Charges. A-2 And A-3 Are Under Incarcerated In Jail And Rest Of The Appellants Are On Bail. Appellants (A2) And (A3) Smt. Gomti Devi And Manoj Are Directed To Be Released From Jail Forthwith Unless They Are Required In Some Other Case. Rest Of The Appellants Need Not Surrender. Their Personal And Surety Bonds Are Discharged.
Let A Copy Of This Judgment Be Certified To The Trial Court For Its Intimation.

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