HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.8 AFR Reserved The High Court of Judicature at Allahabad, Lucknow Bench, Lucknow. District : [ENTITY] Criminal appeal No. 524 of 2003 1. [ENTITY] son of Sri [ENTITY] 2. Smt. [ENTITY], wife of Sri [ENTITY] ( Both are residents of village Ghurwara, P.S. Bachchrawan, District Raebarli). Appellants Vs. The [ENTITY] Opposite party. Counsel for Appellants: Sri [ENTITY] Counsel for Complainant: Sri [ENTITY] Counsel for Respondent: Sri [ENTITY],AGA Hon'ble [ENTITY],J.
Judgement
1. This criminal appeal under [SECTION] of [ACT] (for short [ACT]) has been preferred by the accused appellants against the judgment and order dated 3.4.2003 passed by Additional Sessions Judge/Fast Track Court, No. 4, Raebareli in [CASE NUMBER] related to case crime no. 171/91( [ENTITY] Vs. [ENTITY] and others ) P.S. Dalmau, District Raebereli, by which the appellants were convicted under [SECTION] and [SECTION] of [ACT] (for short I.P.C.). They were sentenced to undergo ten years simple imprisonment under [SECTION] [ACT] and three years simple imprisonment and a fine of Rs. 2,000 each, in default thereof to further undergo six months simple imprisonment under [SECTION] [ACT]. All the sentences were directed to run concurrently.
FACTS
2. Facts, in brief, according to the First Information Report (for short 'FIR') lodged by Smt. [ENTITY] are that [ENTITY] daughter of informant [ENTITY] (P.W1), was married to appellant no.1 [ENTITY] in the month of March 1991. After marriage [ENTITY] went to her matrimonial house and remained there for 11 days. Thereafter she came to her parental house with her brother. She told her parents about harassment and cruelty caused upon her by [ENTITY] appellant no.1 (husband), [ENTITY] (father-in-law, since dead) and Smt. [ENTITY] Appellant No.2 (mother-in-law) on account of demand of dowry of Rs.8000/- cash and other articles of more than Rs.5000/-. The informant was not able to fulfil the demand . Thereafter [ENTITY] came to parental house of [ENTITY] and asked to make good the demands of the aforesaid cash and items and also threatened that in case the demand is not fulfilled, [ENTITY] would be killed by putting her on fire. However, due to intervention of some villagers, accused [ENTITY] took [ENTITY] back. After about one month [ENTITY] came and told to parents either fulfil the demand of dowry or take back [ENTITY], otherwise she would be killed. In the intervening night of 4/5.12.1991 [ENTITY] was killed by pouring petrol upon her by the accused persons and then setting her alight. She received 80% burn injuries. [ENTITY] was admitted in the hospital by the in-laws. On 9th day of her admission in the hospital she succumbed to burn injuries. Before death she gave statement that her in-laws killed by putting her a blazed for non-fulfilment of dowry demand in the presence of villagers. It was alleged that this incident was reported in the newspaper on 7th November 1991 and 16th December 1991. The informant went several times to the police station but the police declined to lodge the FIR. It was also stated in the FIR that appellant no. 1 [ENTITY] after this incident came to the village of informant and asked to the parents to take Rs. 2-4 thousand for not making any complaint to high-ups. This application (Ext.Ka-1) has been given to the Superintendent of Police, Raebareli which appears to have been typed on 21st December 1991. On the basis of this information the FIR (Ext- Ka.2) was lodged by the police after making necessary entries in the general diary of concern police station on 24.12.1991 at 6.00 p.m.
3. Earlier to lodging of FIR [ENTITY] was admitted in the hospital by her in-laws. where her dying declaration was also recorded in the morning at about 7.55 a.m. on 5.12.1991 by the Executive Magistrate/Tehsildar. Dr. [ENTITY] (DW1) gave certificate of fitness of deceased before recording statement of deceased at 7.50 a.m., The statement which was recorded by Tehsildar is quoted herein below:-
"Dying Declaration of Smt. [ENTITY] 22 years W/O [ENTITY] R/O Ghurwara P.S. Dalmau. Recorded on 5.12.91 at 7.50 AM. Certified that she is in her full sense to answer the question asked.
Sd (Dr.[ENTITY]) 05.12.91 (InHindi) Aaj dinank 5/12/91 Ko Samay 7.55 AM se [ENTITY] W/O/ Sri [ENTITY]. [ENTITY] ka mratyu Purva bayan likha gaya. bayan me kaha ki wo so rahi thi. [ENTITY] me jo ek eint nikli thi usme Diya rakha tha usi se aag lag gai thi. Uska mard dusre kamre me so raha tha. Saas sasur bhi dusre kamre me so rahe the. Uske pati ne akar usey kambal dal kar bachaya. Uske kisi ne Aag nahi lagai thi. [ENTITY] me shadi batai. Kisi se koi jhagda nahi tha. bayan wahi likha gaya jo kaha. Yahi bayan 8 AM tak chala.
(Signature) Tehsildar Sadar/Magistrate 5.12.91 Marij akhir tak vyan ke kabil thi. [ENTITY] theek thi.
(Signature of Doctor) 5.12.91 (Seal in Hindi) [ENTITY], [ENTITY], [ENTITY] Left Thumb impression) [ENTITY] Smt. [ENTITY] ka pramarit"
4. During the course of treatment, she succumbed to injuries on 13.12.1991 at 5:30 p.m., as per death memo (Ext.Ka-8). The Inquest (Ext. Ka-7) was conducted upon the corpus of deceased [ENTITY] in District Hospital, Raebareli . The husband of Smt. [ENTITY] and father of deceased [ENTITY] (PW2) was also the witness of the inquest. The opinion of witnesses of inquest was noted in the inquest , which reads as under:-
' [ENTITY] me mratika [ENTITY]wati Devi Makan me chirag lekar kitab padh rahi thi padhte -2 neend aa gai, chimni se dhoti ne aag pakad li thi. Jal jaane ki vajah se mrityu ho gai.'
5. The body of deceased [ENTITY] was sent for post mortem examination which was conducted on 14.12.1991 by the panel of doctors consisted of Dr. [ENTITY] (PW-4) and Dr. [ENTITY]. Dr. [ENTITY] prepared post mortem report (Ext. Ka-4).From perusal of the statement of PW-4 it appears that the dead body of deceased was having following injuries;
"Anti-mortem burn injuries all over body except back of skull and sole of feet. Infected wound was present all over the body. Healing process was present but discharge of fresh pus was also found. The cause of death of deceased [ENTITY] was due to shock and septicaemia on account of anti-mortem burn injuries."
6. After post-mortem examination the dead body was cremated in the presence of parents of [ENTITY]. As stated earlier that after 10 days [ENTITY] (PW1) lodged the FIR. The matter was investigated by Circle Officer of Police(for short 'CO') Sri [ENTITY] and submitted the final report, but under the order dated 21.5.1992 passed by the Superintendent of Police [ENTITY] the matter was not closed and handed over for further investigation to another CO [ENTITY] (PW7). CO [ENTITY] further investigated the case and recorded statement of Smt. [ENTITY] and other witnesses including [ENTITY], [ENTITY] and [ENTITY] etc. On the basis of statement of these witnesses, he submitted charge-sheet against the appellants and one [ENTITY] father of appellant No.1 [ENTITY] died during the pendency of trial and the trial against him stands abated. The Charges were framed under [SECTION]-A [ACT] . The appellants denied the charges and claimed their trial.
7. To prove its case the prosecution examined Smt [ENTITY] (PW1), who lodged the FIR and is also the mother of the deceased, [ENTITY] (PW2) father of the deceased, [ENTITY] (PW3) constable clerk who register the case, Dr. [ENTITY] (PW4) who conducted post-mortem, [ENTITY] (PW5), Smt [ENTITY] (PW6) maternal uncle and aunt of deceased respectively and [ENTITY] (PW7) Investigating Officer.
8. After close of prosecution case, accused appellants were examined under [SECTION] [ACT]. They denied the allegation levelled against them and asked to adduce defence evidence.
9. Accused appellants examined in their defence Dr. [ENTITY], (DWI) in whose presence the dying declaration of deceased (Ext. Kha-1) was recorded. He stated that patient died after 10th days from the date of recording her dying declaration. He also proved certificate of fitness of deceased at the time of recording dying declaration. He denied the suggestion that at the time of recording dying declaration he was not present with [ENTITY].
10. Considering the evidence on record and disbelieving the dying declaration made by the deceased to Executive Magistrate/Tehsildar, the appellants were convicted as stated above. Being aggrieved by the aforesaid judgement and order, the present appeal has been preferred.
11. I have heard Shri [ENTITY], learned counsel for the appellants and Shri [ENTITY], learned counsel for the complainant as well as Shri [ENTITY], learned AGA and also perused the record.
Submissions of Counsel of parties
12. Learned counsel for the appellants has submitted that in this case dying declaration has been rejected by the learned trial court merely on the ground that when dying declaration of deceased was recorded, her condition was not serious and she died after 8 days from the date of recording of her dying declaration. The trial Court also wrongly placed reliance upon the alleged oral dying declarations given by the deceased to her parents and other witnesses examined in this case. It is admitted fact that parents of deceased were present on 13.12.1991 when inquest of the deceased was prepared. Father of deceased, [ENTITY] was one of the witness of inquest and he was of the opinion that her daughter died on account of fire by kerosene lamp when she after reading a book was sleeping and her sari caught fire and she got burn injuries. After post-mortem on 14.12.1991 her dead body was cremated in presence of her parents. Thereafter,on 24.12.1991 the FIR was lodged against the accused appellants i.e. after interval of ten days. It was in the knowledge of informant that dying declaration of deceased was recorded by the Magistrate. It has been further submitted that no reason has been assigned by the prosecution for not producing the dying declaration before the trial court in the prosecution evidence and why the dying declaration was suppressed. No investigation has been conducted in respect of correctness of dying declaration. It is a case under [SECTION] [ACT]. No eye witness has been examined in this case in whose presence the deceased got burn injuries. The dying declaration given by the deceased disclosing therein about the manner in which she got burn injuries could not be disbelieved. Specially when such dying declaration has been recorded in the presence of doctor, who certified the mental state and condition of deceased to give statement before and after recording the dying declaration by a Magistrate. It has been recorded by the independent person. The rejection of such dying declaration by the trial court on the ground that deceased died after 8 days and she was not in critical condition when dying declaration was recorded, is not proper. Moreover suppression of this material evidence, admittedly available with prosecution, creates serious doubt about the prosecution story and an adverse inference is bound to be drawn against the prosecution.
13. Learned counsel for the appellants relying upon the judgement of the Apex court in [PRECEDENT] , has submitted that the Supreme Court discussed the manner of appreciating evidence of dying declaration in the light of English law and Indian Law and held that in Indian law there is no legal necessity before accepting a dying declaration that it should be recorded when maker of it was in imminent danger of death or expecting his death.
14. On the contrary, learned counsel appearing for the complainant submitted that there is ample evidence on record to disbelieve the dying declaration recorded and relied upon the judgement of the Hon'ble Supreme Court reported in [PRECEDENT] and [PRECEDENT]. It was further submitted that it is the privilege of the prosecution to adduce evidence in support of its case. Neither court nor accused could insist prosecution to produce the evidence which the prosecution does not want to adduce.
15. Learned AGA supported the judgement and order passed by the trial court.
16. After hearing the arguments of the learned counsel for the parties following are the questions for consideration before this Court ;
(i) Whether the alleged oral dying declarations given by the deceased to P.W. Nos. 1, 2, 5 and 6 could be believed or not?
(ii) Whether the prosecution suppressed material evidence from the court? If so, its effect on prosecution?
(iii) Whether the reasons assigned by the trial court to discard the dying declaration recorded by the Executive Magistrate/ Tehsildar are sustainable?
(iv) Whether the deceased was subjected to cruelty on account of demand of dowry?
(v) Whether there was any demand of dowry as alleged by prosecution?
17. In order to appreciate the findings recorded by the trial court, it is necessary to examine the evidence on record.
Evidence of Parties
18. The prosecution examined as many as seven witnesses to support its case.
19. Smt. [ENTITY], (PW-1) is the informant of this case and is also the mother of the deceased. She narrated the story which has been mentioned in her FIR . She also stated that the appellants did not inform about the incident for about four days. One [ENTITY], her brother informed on 4th day that [ENTITY] has been burnt and she was admitted in the hospital. Then she went to hospital along with her brother. [ENTITY] died after five days from the date when she reached to the hospital to see her daughter. This witness during her examination in chief did not depose that [ENTITY] gave any statement to her or to any person in her presence while she was admitted in hospital. She categorically stated that she was present when inquest was prepared. In cross examination she stated that her daughter told before several person about demand of dowry in the following words;
"Ladki jab shadi ke 11 din baad mere ghar gai tab usne mujhse dahej ki baat batai thi. Uske baad aspatal me jali hui halat me vijyawati ne pachaso admion ke samne dahej wali baat batai thi. Jalne ke chauthe din aspatal me [ENTITY] ne dahej wali baat batai thi."
20. [ENTITY] (PW-2) the father of deceased stated on oath and also supported the version regarding demand of dowry. He stated that her son-in-law was demanding motorcycle and Rs.5000/- cash. He came to know about the death of her daughter through maternal uncle of deceased. He also stated that he went to hospital where her daughter told him that ' Pitaji Apne jo motorcycle va 5000/-rupaye dene ko kaha tha aur nahi de sake is karan teeno ne mujhe jala diya hai tatha [ENTITY] ne torch peshab ke raste me daal diya. ' After this she died after eight days. He also stated that accused persons forcibly obtained his signatures on plain paper. He disowned of giving any affidavit to any authority. He further stated that her daughter was illiterate and could only put thumb impression. He also admitted in the cross-examination that after meeting with his daughter, he did not lodge any report against [ENTITY] nor he could assign any reason for this. He also stated that [ENTITY] liked his daughter so married with her.
21. Head Constable [ENTITY] ( PW-3) proved the lodging of F.I.R.
22. Dr. [ENTITY], (PW-4) proved the post mortem examination. He stated in cross examination that by perusal of injuries on the person of deceased it appears normally the same could not be cause accidentally. However, he also deposed that whole body of deceased was burnt and he could not tell whether she received injuries accidentally or she was burnt.
23. [ENTITY] (PW-5) the maternal uncle of deceased [ENTITY], stated on oath that appellants and father of [ENTITY] were demanding new motorcycle, Rs.8000/- cash and articles of Rs.5000/-. He assured to in-laws of deceased that the said demand would be fulfilled. He also supported the version of prosecution. According to him he received the information of incident after 3-4 days through a person whose name is not known though he was his relative. Thereafter, he went to hospital where deceased told him that :
"Dahej ke liye [ENTITY], uske ma baap ne hath pair bandh kar kamre me petrol se jala diya"
It was also stated that when he went to hospital, she was talking and recognizing everybody. He ,at the opening of cross-examination, categorically admitted that he went to hospital on second day of death of deceased and received information about death after cremation of deceased.
24. [ENTITY] (PW-6) is the maternal aunt of deceased and wife of [ENTITY] (PW5). She deposed that after getting information of burning of deceased in her in-laws house after two three days when she reached with her husband in the hospital, deceased identified her and told " Aspatal me ladki ne ham logo ko bataya ki use uprokt dahej na milne ke karan muljiman [ENTITY],[ENTITY],[ENTITY] ki aurat ne kamre me bandh kar jala diya. Maine usse yeh bhi pucha tha kisi Police Captan, doctor ne koi puchhtanchh kiya tha ya dasthaqat karaya tha to usne bataya ke kisi ne likhapadhi ya punchhtanchh nahi ki."
25. [ENTITY] (PW-7), the Investigating Officer, deposed that first Investigating Officer submitted the final report on the basis of dying declaration of deceased which is the part of the case diary. He categorically stated that he did not make any investigation about correctness of dying declaration of deceased nor he recorded the statements of doctor and also of the Executive Magistrate who recorded the dying declaration of deceased though dying declaration was part of the case diary.
26. Before dealing with the aforesaid questions for consideration, this court must keep in mind the cautions which were reminded from time to time by the Apex Court in dealing with the criminal cases based on dying declaration.
27. It is settled principle of law that prosecution has to prove its case beyond all reasonable doubt while the defence has to prove its case on the touchstone of preponderance and probabilities as held in [PRECEDENT] .
28. Prosecution should not conceal the facts which were in its knowledge or collected during investigation that could materially effects the issue under consideration of the court to arrive at a truth. If prosecution concealed such fact an adverse inference should have been drawn under [SECTION] of [ACT] .
29. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted, as held in [PRECEDENT].
30. In [PRECEDENT], Apex Court has examined the principle of evaluation of dying declaration in para 18 at page 315 of the judgement:
"18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given of course depending on other relevant facts and circumstances of the case."
31. In [PRECEDENT], the Hon'ble Supreme Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
32. In [PRECEDENT] the Hon'ble Supreme Court dealing with the situation of multiple dying declaration has held at page 581 :
"21.Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters."
33. In [PRECEDENT] the Apex Court provided clarity, not only to the law of dying declarations, but also to the question as to which of the dying declarations has to be preferably relied upon by the court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under: (SCC pp. 518-19 , paras 9-10) "9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means a man will not meet his Maker with a lie in his mouth'. The doctrine of dying declaration is enshrined in [SECTION] of the [ACT] (hereinafter called as the [ACT]') as an exception to the general rule contained in Section of the [ACT], which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.{Vide [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] [PRECEDENT].}"
34. In [PRECEDENT], the Supreme Court, while declining to accept the findings of the trial court, held that the trial court had erred because in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit so as to appreciate its evidenciary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.
FINDINGS (I) Whether the alleged oral dying declarations given by the deceased to P.W. Nos. 1, 2, 5 and 6 could be believed or not?
35. Now this Court will first evaluate the evidenciary value of alleged dying declarations given by the deceased to her parents ,maternal uncle and aunt namely [ENTITY] mother(PWI), [ENTITY] father(PW2), [ENTITY] maternal uncle(PW5) and [ENTITY] maternal aunt(PW6), which are the basis of conviction of the appellants.
36. [ENTITY] PW1 (mother of deceased) in her statement on oath has not narrated the words spoken to her by her daughter [ENTITY]. She simply stated that her daughter before several persons told about her burning for demand of dowry on fourth day of the incident. So her statement can not be treated as dying declaration. She also did not state in the FIR that her daughter gave any statement in hospital in her presence. She simply stated in FIR that 'before death she gave statement before villagers,relatives and doctors that in-laws burnt her due to non giving of dowry.' Even from the statement on oath it could not be inferred that any statement has been given by her daughter in her presence. She is the witness who lodged the FIR on 24.12.1991,after about 20 days. The incident said to have been occurred in the intervening night of 4/5.12.1991. She was admitted on the same night in the hospital by her in-laws. She died in hospital and inquest was prepared on 13.12.1991, after 9 days from incident. This witness deposed that she was present at the time of inquest. In Inquest it has been mentioned that the incident was an accident as is evident from the opinion of witnesses of inquest recorded therein, reproduced herein below:
'[ENTITY] me mratika [ENTITY]wati Devi Makan me chirag lekar kitab padh rahi thi padtey-2 neend aa gai, chimni se dhoti ne aag pakard liya tha. Jal jaane ki vajah se mrityu ho gai.'
37. If she was present at the time of making the inquest why she kept mum and specially when her husband was the witness of inquest and was with him. In the aforesaid circumstances the delay in lodging the FIR is unexplained and cause serious doubt about the prosecution version.
38. [ENTITY] PW2 is the father of deceased. He stated on oath that on the next day of incident her daugther told her' Pitaji Apne jo motorcycle va 5000/-rupaye dene ko kaha tha aur nahi de sake is karan teeno ne mujhe jala diya hai tatha [ENTITY] ne torch peshab ke raste me daal diya. ' . This witness is also the witness of inquest which was prepared after 8 days from the alleged oral dying declaration made by her daughter but there is no reference of such oral dying declaration in inquest. Moreso the opinion of witnesses of inquest tallies with the first dying declaration recorded by the Executive Magistrate. It is also important to note as to why he did not lodge the FIR if her daughter stated so. No explanation has been offered by him even after putting specific question in this regard with him. He also stated in his statement on oath that after marriage of his daughter he met his daughter in hospital and not in between. Beside this the wife of this witness categorically stated that she (PW1) and her brother [ENTITY] (PW5) for the first time went to hospital after getting the information on the fourth day of the incident. Neither PW2 nor PW6 was said to be accompanied with her and [ENTITY]. PW1 did not say that her husband reached hospital on the next day. PW1 in her deposition before trial court stated that her husband came on fifth day of the incident in hospital. He saw the daughter and returned. If this statement of PW1 is taken to be true, the existence of alleged dying declaration given to PW2 becomes totally false. This alleged dying declaration of deceased given to this witness is not in consonance with the alleged dying declaration made to [ENTITY] (PW5) or [ENTITY] (PW6). The part of alleged dying declaration about inserting of torch in the vagina of the deceased does not find place in the statement of any other witness nor the same is supported with medical evidence.
39. It is also important to note that he gave an affidavit not implicating any appellants and supporting first dying declaration recorded by the Executive Magistrate but during course of statement on oath he disowned the same.
40. Therefore, this court is of the firm view that the statement of this witness that her daughter had given dying declaration as alleged by this witness is an untrue and false statement . Such dying declaration is not at all believable and cannot be used against appellants to connect them with the crime.
41. Alleged oral dying declaration made by [ENTITY] to [ENTITY] PW5 and [ENTITY] PW6 is almost on same line but with material variation. Both these witnesses are related inter see as husband and wife and are maternal uncle and aunt of [ENTITY], the deceased. There are material contradictions in the alleged dying declarations given to these two witnesses by the deceased with the alleged dying declaration made by deceased to her father. [ENTITY] PW5 stated on oath that after getting the information of the incident after 3-4 days he, her wife [ENTITY] (PW6) and [ENTITY] (PW1) went to hospital. As stated earlier PW1 stated that she and PW5 alone went to hospital and did not say that [ENTITY] was also with her. This material contradiction makes the presence of PW6 very much doubtful on the fourth day of the incident along with PW1 and PW5 in the hospital at the time of making the alleged dying declaration by [ENTITY]. This also makes it clear that PW6 was introduced as a witness and she is virtually a got up witness.
42. PW 5 and PW6 both stated that deceased told them that before putting [ENTITY] to fire she was tightened by the appellants but no such statement was either given by PW1 and PW2 or mentioned in FIR. No question in this regard has been put by prosecution to the doctor who conducted the post mortem of [ENTITY] . The doctor has not stated that he found any sign of tightening the deceased before her death. As such the alleged dying declaration said to have been given by [ENTITY] to PW5 and PW6 does not inspire confidence. Such alleged dying declaration can not be used to sustain the guilt and conviction of accused persons/appellants recorded by the trial court.
43. There is also a material contradiction in regard to manner of getting the statement of deceased and also about the contents of alleged dying declaration given to PW6 and PW5. PW6 stated that she also asked to deceased whether any Superintendent of Police or doctor interrogated her or got her signatures then she told 'nobody made any interrogation or made any thing in writing'. This additional part of alleged dying declaration does not find place in the statement of any other witness of prosecution or in the FIR. Probably it has been introduced to show that no dying declaration has been recorded by any police or executive officer or by doctor.
(ii) Whether the prosecution suppressed material evidence from the court ? If so, its effect on prosecution.
44. It is an admitted fact that the dying declaration recorded by the Executive Magistrate was in the knowledge of Investigating Officer and he submitted the final report on the basis of it. Later on investigation was entrusted to another I.O, who was also aware about it as admitted by him during his examination in court as PW7. But despite of it he did not make any efforts to know the genuineness and correctness of dying declaration recorded by the Executive Magistrate/Tehsildar. Why he did so could not be properly explained and submitted charge sheet on the basis of oral evidence. This shows that prosecution wilfully suppressed the material piece of evidence from the court.
45. The Apex Court in [PRECEDENT], at page 183 and 192 in para 35 and 56 has observed :
"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."
"56. As pithily stated in [PRECEDENT] "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."
Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the [ACT] has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are on record so that there might not be miscarriage of justice. (See [PRECEDENT])"
46. It is true that in case of suppression of evidence from Court an adverse inference should have been drawn against the party concerned but at the same time Courts should not only act on presumption under [SECTION] of [ACT] but also examine the suppressed material and its evidentiary value before coming to a definite opinion with a view whether suppressed evidence materially effect the case of such party which suppressed the evidence. Therefore this Court is under an obligation to see whether the suppressed dying declaration recorded by Executive Magistrate/ Tehsildar can be used for any purpose either for strengthening the prosecution case or to rebut the presumption under [SECTION] of [ACT] by the appellants.
(iii) Whether the reasons assigned by the trial court to discard the dying declaration recorded by the Executive Magistrate/ Tehsildar are sustainable or not?
47. In this case dying declaration recorded by the Executive Magistrate has been discarded by the learned trial court on the sole ground that deceased died after eight days from the date of recording of statement of deceased and she was not in imminent danger of her life. Hence, her statement can not be treated to be a dying declaration and would not be admissible. No other reason has been assigned to discard the dying declaration as is evident from the judgement of the trial court. Learned trial court did not point out any illegality or irregularity in recording the dying declaration of the deceased by the Executive Magistrate.
48. It is not in dispute that Executive Magistrate recorded the dying declaration of the deceased after taking certificate of the doctor attending her in hospital, regarding her mental and physical condition to give statement. These certificates have been obtained before and after recording dying declaration as is evident from the dying declaration mentioned herein above.
49. The prosecution has not come with the case that dying declaration was an outcome of tutoring or undue influence of in-laws or has been obtained by other means. If the prosecution would have come with specific case that dying declaration so recorded was based on tutoring or undue influence of in-laws or otherwise obtained, the matter would be viewed with such angle and in different way. But here in this case prosecution virtually suppressed this first dying declaration recorded by the Executive Magistrate after obtaining certificate of mental and physical fitness . The prosecution did not rely upon it because the deceased had not given statement involving any of the appellants for causing her death. It was virtually suppressed with a view to seek conviction of the appellants on the basis of other alleged oral dying declarations. It was in the knowledge of the prosecution, was not denied by the I.O. On the basis of the dying declaration of the deceased, a closer report was also submitted by the police to his high ups during investigation of this case.
50. In this case deceased died after 8 days of the incident after giving the aforesaid dying declaration wherein she did not involve any of the appellant for her death. The statement finds support from the inquest prepared after the death of the deceased. In the inquest suspected cause of death is the same in the opinion of the witnesses of the inquest which was mentioned in the aforesaid dying declaration recorded by the Executive Magistrate.
51. It is also pertinent to mention here that father of the deceased (P.W. 2) [ENTITY] was also one of the witness of the inquest and if the deceased had given the statement as stated by this witness before trial court on next day of the incident why he did not lodge the FIR on that day or reported the matter to high authorities of police or district administration. When he was asked specifically for it, he did not give any reason for such omission in his cross examination nor he was able to give any reply.
52. The witnesses examined from the side of the prosecution stated on oath that before inquest, the deceased gave statement implicating the accused appellants. It is also important to mention here that PW. 1 stated on oath that she was present at the time of inquest, but the parents of the deceased did not raised any protest at the time of inquest. After inquest, the post mortem of the deceased was conducted. The dead-body was handed over and cremated without any protest from the side of parents of the deceased. It is only after ten days the FIR has been lodged by the P.W. 1 without assigning any plausible explanation of delay.
53. In view of the above facts and circumstances of the case the prosecution cannot take any advantage of this dying declaration rather it demolished the whole prosecution story. The prosecution did not take any plea or adduce any evidence that this dying declaration is procured or tutored one.
54. On the contrary, the accused appellants brought this fact to the notice of this Court that dying declaration was recorded by the Executive Magistrate after taking due certificate from the doctor treating the deceased in which none of the appellant was implicated by the deceased for the cause of her death. This first dying declaration has been suppressed by prosecution with oblique motive. Doctor appending the certificate of fitness has been examined as DW1. To rebut the presumption under [SECTION] of the [ACT] or under [SECTION] [ACT], the accused should not be required to prove any fact beyond all reasonable doubt as is required to establish by the prosecution. The defence has to prove its case on touch stone of preponderance and probabilities as held in [PRECEDENT].
55. The Apex court in [PRECEDENT] found that accused has rebutted the presumption under [SECTION] of [ACT] on the basis of fact that the deceased stated to the Doctor that fire caught her while preparing tea on stove. In this case the evidence of Doctor examining the deceased in hospital was to the effect that patient (deceased) herself told that she sustained burn injuries while cooking meal on stove. This statement of the deceased was found to be relevant under [SECTION] of [ACT] and the presumption under [SECTION] of the [ACT] thus, found rebutted and accused persons were given benefit of it and acquitted under the charges levelled against them under [SECTION] [ACT].
56. In a recent judgement the Apex Court in [PRECEDENT] held that after relying upon suicide note produced by the accused and proved to be written in hand of the deceased, exonerated the accused from charges. In the suicide note, the deceased mentioned that no body is responsible for her death and her parents and family members have harassed much to her husband, therefore, she is taking this steps as she is fed up with her life. In the light of this judgement the Court observed that the accused has successfully rebutted the presumption under [SECTION] of the [ACT] and prosecution has failed to establish necessary ingredients of [SECTION] [ACT] and 304B [ACT] and held in Para 16 of the judgement reproduced herein below:-
"16. In our considered opinion, the evidence of DW1(the appellant) and Ext. D- 19 casts a reasonable doubt on the prosecution story that deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on prosecution to prove beyond reasonable doubt the ingredient of [SECTION] [ACT] and essential ingredients of offence under [SECTION] [ACT] is that the accused, as a husband of the deceased, has subjected her to cruelty as defined in the explanation to [SECTION] [ACT]. Similarly, for the Court to draw the presumption under [SECTION] [ACT] of the [ACT] that the appellant had caused dowry death as defined in [SECTION] [ACT], the prosecution has to prove besides the demand of dowry, harassment or cruelty by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of cruelty, neither of the offences under [SECTION] [ACT] and [SECTION] [ACT] has been made out by the prosecution."
As such in the case in hand in view of first dying declaration recorded by the Executive Magistrate, which was found to be truthful, reliable and admissible in evidence. The reason assigned by the trial court to reject this dying declaration is not sustainable .
(iv) Whether there was any demand of dowry as alleged by prosecution?
(v) Whether the deceased was subjected to cruelty on account of [ENTITY]?
57. As both the questions relate to demand of dowry, hence they are being considered and decided together.
58. Now the question remains for consideration that after disbelieving the oral dying declaration alleged to have been made to PW 1, 2, 5 and 6 by the deceased, the prosecution could succeed to establish the charges under [SECTION] [ACT] against any of the appellants. In view of the first dying declaration recorded by the Executive Magistrate, it is clear that deceased was not subjected to cruelty on account of demand of dowry.
59. Moreover, there is vital contradiction regarding demand of dowry. PW 1 in her statement said that demand of Rs. 8000/- cash and articles of Rs.5000/- was made if no new Hero Majestic is given. PW 2 in his deposition before trial court said that accused persons were demanding of Rs. 8000/- cash and articles of Rs.5000/-. PW 2 did not state about demand of motorcycle(Hero Majestic). PW 5 deposed that all the three accused persons were demanding new motorcycle and Rs. 8000/- cash and the articles of Rs.5000/-. However, PW 6 in her statement stated that at the time of [ENTITY] the husband of deceased demanded Rs.8000/- cash, article of Rs.5000/- and motorcycle. PW 1 also stated that on his request appellant No.1 deferred his demand. The difference in statements on oath of witnesses about the articles also creates reasonable doubt regarding demand of dowry. However, in view of the dying declaration of deceased given to Executive Magistrate the statement given by the witnesses can not be believed regarding demand of dowry. No complaint has ever been made by any of the parents of the deceased. Even the alleged threats to life of the deceased were extended by the husband before the incident in presence of PW1 but no corrective measures have been taken. PW1 has taken it in a casual manner. Therefore, this court is of the view that the prosecution also failed to establish necessary ingredients of [SECTION] [ACT] and in view of conclusions arrived at by this Court the findings recorded by the trial court are not sustainable.
CONCLUSION
60. In view of the discussions made above, this Court is of the view that in the light of the statement of DW1 and Ext. Kha-1, appellants have successfully rebutted the presumption under [SECTION] of the [ACT]. Taking into consideration the contents of this dying declaration the prosecution failed to establish the necessary ingredients of [SECTION] and [SECTION] [ACT]. More so, this court also finds that prosecution has failed to establish the trustworthiness, reliability and genuineness of dying declarations alleged to have been made by deceased to P.W. 1, 2, 5 and 6. These alleged dying declarations are not reliable and can not be believed. Hence prosecution has failed to establish the charges levelled against the appellant under [SECTION] and [SECTION] [ACT] beyond all reasonable doubts and they are entitled to be acquitted. Consequently the criminal appeal deserves to be allowed.
61. The criminal appeal is allowed.
62. The appellants were on bail but in pursuance of non bailable warrant issued against them on 29.1.2013 they were arrested and detained in jail. They were produced in court under custody on 14.3.2013. They may be released forthwith if they are not wanted in any other case.
63. Registrar of this Court is directed to send back the original record of trial court alongwith copy of this judgement for necessary compliance.
Dated: 15th May, 2013 (Hon'ble [ENTITY] J.) GSY