Nanki Devi and Others vs State of U.P.

Pankaj Naqvi, J.—1. This criminal appeal is preferred against the judgment and order dated 3.9.2014 passed by Addl. Sessions Judge (Court No. 11), Kanpur Nagar in S.T. No. 1499 of 2003 (Case Crime No. 218 of 2013) convicting and sentencing the appellant under Section 304B IPC to 10 years R.I., with fine of Rs. 5000/- each; under Section 498-A IPC to 3 years R.I., with fine of Rs. 5000/- each and under Section 3/4 D.P. Act to 1 year imprisonment with fine of Rs. 2500/-each and a default sentence of three months. All sentences were to run concurrently.

Brief facts are as under:-

An FIR was lodged by one Ramesh on 28.5.2009 (not examined, as he died) alleging that his daughter Sudha was married to Ravi Prakash (appellant No. 2) around 2-1/2 years ago, but since then, appellant No. 1, i.e., the mother-in-law, appellant No. 2, the husband and Seema, the sister-in-law, who was living with her parents after her marriage used to torture and taunt his daughter for not giving any dowry and had also made a demand of Rs. 20,000/- for starting an electrical shop for appellant No. 2, the son-in-law, which the informant was unable to accede. The report further alleged that a panchayat too was convened around 10 days prior to 22.5.2003, when at about 9:00 P.M., information was received telephonically that his daughter suffered serious burn injuries and is admitted in the hospital. The informant proceeded for the hospital, who was informed by his daughter that it were the appellants, who had caused the burn injuries, and that the accused persons have got a wrong statement recorded from her. The daughter succumbed to the injuries on 25.5.2003.

After investigation, a charge sheet was submitted against the three accused persons under Sections 498-A/304-B IPC and 3/4 D.P. Act, cognizance taken, case committed and, charges framed. The accused denied the charges and claimed to be tried.

The prosecution examined PW-1, the mother of the deceased to prove the written report (Exbt Ka-1), as the informant, i.e., the father of the deceased had expired, PW-2, Ram Chandra, the brother-in-law of the informant, PW-3, the constable who registered the FIR (Exbt Ka-2), PW-4 the Circle Officer/Neeraj Pandey, the I.O. PW-5 Dr. N.K.S. Yadav, conducted the autopsy, PW-6 S.I. Ajay Prakash, prepared the inquest, PW-7, the SDM, recorded the dying declaration of the deceased and PW-8, the sister of PW-1.

The accused persons claimed false implication and alleged that the death was on account of a fortuitous circumstance, not attributed to the appellants.

The defence examined Sri Neeraj Kumar Pandey, the Circle Officer as DW-1 to prove the dying declaration, as the original dying declaration was untraceable. The Court also examined CW-1, the Chief Pharmacist to prove the BHT of the deceased.

The Trial Court after considering the oral and documentary evidence on record, convicted and sentenced the appellants.

Heard Sri S.D. Singh "Jadaun", learned counsel for the appellants and the learned A.G.A.

Learned counsel for the appellants submitted that demand of dowry is not established as it was the admitted case of the prosecution that it was a dowryless marriage, in which even a Bariksha (engagement) did not take place for want of funds, thus a demand of Rs. 20000/- is highly improbable. He also submitted that the dying declaration clearly exonerated the appellants when the deceased stated that she sustained burn injuries accidentally while cooking. He finally submitted that it was the appellant No. 2-the husband, who in an attempt to rescue the deceased too sustained burn injuries and that it was he and his family, who took the deceased to the hospital.

Per contra, learned A.G.A., submitted that the demand of Rs. 20,000/- was duly established. He challenged the dying declaration on the ground that the same was neither preceded by any certification from the doctor concerned, as to the medical fitness of the deceased at the time of alleged declaration, nor was the doctor or the Magistrate, before whom the dying declaration was recorded, examined, and on the contrary it was recorded in the presence of the family members of the appellants, which creates a grave doubt as regards the veracity thereof. He finally submitted that in the absence of any medical examination of the burn injuries of the husband, no benefit thereof can be extended to the appellants.

PW-1 the mother of the victim is coming from a very poor family, so much so that the marriage of her daughter, i.e., the victim had to be solemnized from the house of PW-2 her bahnoi, that too without any engagement ceremony for want of funds. Although the marriage took place 5 years prior to the testimony of PW-1, yet she does not remember what all was given at the time of the marriage, but is candid enough to admit that as and when the deceased used to visit her, she came and went happily. It is evident that in respect of the alleged occurrence dated 22.5.2003, the FIR came to be lodged on 1.6.2003, i.e., after 15 days, as she was stating that talks for compromise went on at the police station concerned, but denied that it had anything to do with a demand for money.

PW-2, the brother-in-law (bahnoi) of PW-1 stated that it was at his intervention that a dowryless marriage was solemnized. He too stated that nothing was agreed to be given to the family of the bridegroom and on her first bidai, which took place after 4 to 5 days of the marriage, when the deceased came to his house, she did not raise any complaint, whatsoever, and similarly, at the time of second bidai also, she raised no grievance as against her husband and in-laws even though the deceased stayed with him for a fortnight.

PW-8 is the maternal aunt of the deceased. She too was not in a position to allege a demand of any dowry, but did authenticate the case of the prosecution that talks for compromise, did take place, which was even executed in-writing but could not be signed.

Cumulatively considering the testimony of PW-1, PW-2 and PW-8, the position, which emerges, is that it was a dowryless marriage of the victim; there was no evidence to indicate that the victim was ever maltreated over a demand of dowry and in particular of Rs. 20,000/-; the FIR came to be lodged only on 1.6.2003, even though the informant had come to know on 22.5.2003 of the alleged foul play, as the appellants are alleged to have obtained a tutored dying declaration dated 22.5.2003, probabilizes the inference that it was not a dowry death, rather an accidental death on account of burn injuries, not involving the appellants, as according to PW-8, talks for settlement preceded the lodging of the FIR, which was even executed in-writing, but could not be signed.

The deceased was admitted in the hospital at Kanpur on 22.5.2003 at 11:10 A.M. Her B.H.T. (Bed Head Ticket) (paper No. 93-Ka), which was sought to be proved by the Chief Pharmacist as CW-1 indicated that at the time of admission, her pulse was not responding and at 2:00 PM, on the same date, her general condition was very low. The alleged dying declaration was recorded between 4:10 to 4:15 P.M., on 22.5.2003 by one Dr. PC. Gupta. The Executive Magistrate recorded the alleged dying declaration, which stated that while the deceased was in the kitchen, preparing tea in the morning, she sustained accidental burn injuries, due to a gas burner and, her husband/appellant No. 2 made an attempt to rescue her, who too sustained burn injuries and that she neither had any quarrel with the appellants and on a pointed query as to whether, she was deliberately burnt, she replied in the negative. PW-4 the Investigating Officer was stating that even though he knew the name of the doctor concerned, i.e., Dr. P.C. Gupta, who attended to the injuries of the deceased, yet he did not make any effort to get his statement recorded, as in the light of materials surfaced during investigation, he did not consider its feasibility. Neither Dr. P.C. Gupta nor was the Executive Magistrate, who is alleged to have recorded the dying declaration was examined by the prosecution. The original dying declaration went missing, for which proceedings were drawn against the delinquent official, which came to be reconstructed with the testimony of DW-1 Neeraj Kumar Pandey on the basis of entries made in the general diary. It is intriguing as to how could PW-4, the CO, concerned again come in the witness box as DW-4 to prove the dying declaration.

The law is more than well settled that a conviction can be based upon a dying declaration of the deceased, provided it is safe and free from all suspicious circumstances. The dying declaration was rightly repelled by the Court as having been obtained under suspicious circumstances, such as it was recorded in the presence of the appellants, the doctor and the Magistrate concerned but the latter too not having been examined, renders the dying declaration as absolutely unsafe to be relied upon.

There is yet any another aspect, which cannot be ignored. If as per the prosecution, the alleged occurrence took place on 22.5.2003, then what prevented the informant not to lodge an FIR, as late as 1.6.2003, even though the inquest (Exbt Ka-7) had been executed on 26.5.2003. All this assumes significance in the light of the testimony of PW-1, the mother of the victim that talks for settlement were going on at the police station after the occurrence which could be suggesting that the deceased succumbed to accidental burn injuries, but as the matter could not be amicably settled, an FIR came to be lodged on 1.6.2003.

The court below while considering the testimonies of P.Ws.- 1, 2 and 8 for establishing the alleged demand of dowry, and of Rs. 20,000/- and infliction of cruelty on the deceased, misread and misconstrued the testimony in view of the following glaring facts:-

(i) It was an admitted case of the prosecution that it was a dowryless marriage of the victim, so much so that even the engagement ceremony could not take place in the matrimonial house of the victim, rather it had to take place from the house of PW-2 for want of funds.

(ii) PW-1 and PW-2 were stating that whenever the deceased used to visit them, she never complained of any demand of dowry or of Rs. 20,000/- or infliction of any cruelty and that she came and went happily.

(iii) PW-1, the mother of the victim and her sister PW-8, both stated that subsequent to the death of the victim on 25.5.2003 talks did take place at the police station, in which a settlement was recorded, but was not signed and despite the informant suspecting foul play on 22.5.2003, yet the FIR was lodged on 1.6.2003 raises a probable inference that it was a case of accidental death attributable to burn injuries while cooking, but as settlement could not materialize, an FIR came to be lodged after consultation on 1.6.2003.

Thus in view of the aforesaid discussion, the Court is of the view that on the aforesaid analysis of evidence, the prosecution has not been able to establish either the demand of dowry, or infliction of cruelty on the victim, beyond a reasonable doubt, thus the impugned judgment of conviction and sentence cannot be sustained and is liable to be set aside and the appellants be acquitted.

The appeal succeeds and is allowed. The judgment and order dated 3.9.2014 is set aside. The appellants are acquitted of the offences, charged and they are set free forthwith unless wanted in any other case.