Sanjay Kumar Jaiswal vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard Mr. Salil Mohan, learned counsel for the appellant, Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 21.11.2011 passed by learned Additional Sessions Judge/Fast Track Court Ex. Cadre Court No. 7, Pratapgarh in Sessions Trial No. 437 of 2010 arising out of Case Crime No. 93 of 2010, Police Station Udaypur, District Pratapgarh whereby present appellant Sanjay Kumar Jaiswal was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of two year additional simple imprisonment. However, the appellant was acquitted of the charges under Section 498-A & 304-B I.P.C. and Section 3 /4 of the Dowry Prohibition Act.

In brief the case of the prosecution was that deceased Sangeeta, who happens to be the daughter of the complainant Ganga Prasad Jaiswal was married with appellant on 21.4.2007. Sufficient dowry, as per his financial capacity, was given by the complainant. After the marriage, there was a demand of motorcycle, Colour TV, Gold Chain in dowry by the appellant, his mother Chandrawati, his sister Sushila and Jethani Sunita. When the deceased came back to his parental house then she narrated this demand to her mother and also that she was being treated with cruelty in connection with the demand of dowry of such dowry. After some interval, the appellant and his mother came to the house of the complainant and made a request for Vida of deceased and assured the complainant side that no such behaviour shall be repeated. On 23.8.2009, at about 10:30 a.m., complainant received an information on phone that the condition of his daughter is bad. While the complainant, his brother Asha Ram and his wife were on way then they again received a phone call that Sangeeta is being taken to District Hospital, Raebareli. So these persons went to District Hospital, Raebareli and found that Sangeeta was badly burnt and was not able to speak. After two days when she regained her senses then she told her mother that she has been set ablaze by the appellant and her mother in law Chandrawati, sister and Jethani. Since the condition of the deceased did not improve, therefore, she was referred from District Hospital, Raebareli to Medical College, Lucknow where ultimately she died on 6.9.2009. The complainant and his family members were in shock. So when the complainant became able to move then he went to the police station Udaypur several times and gave report of this case. But his report was not lodged and the police asked him to take some compensation and no other action can be taken. Ultimately the complainant sent applications to several authorities and also to human rights commission. Ultimately the application, which was addressed to Chairman, Human Rights Commission, was sent to S.P. Pratapgarh. Under the orders of the S.H.O. concerned, finally the case was registered on 6.4.2010 at 21:10 hours. During investigation, the police inspected the place of occurrence and recorded the statement of several persons and also looked into dying declaration of the deceased, which was recorded on 24.8.2009 at 4:35 p.m. by PW-4 S.D.M. Jai Nath. Thereafter, charge sheet was filed against the present appellant only. It transpires from the perusal of the record that after the death of the deceased in Medical College, Lucknow, information of her death was given to the police through Ward boy Mony Kumar. On the basis of the said information, inquest proceedings were conducted and after completing the same, the dead body was sent for postmortem, which took place on 7.9.2009 at 4:05 p.m. As per postmortem report, the deceased died on 6.9.2009 at 4:15 p.m. and following ante mortem injuries were found on her body:--

"Superficial to deep septic burn wound present all over the body except head, small part of right shoulder, pubic region, both sole back on chest and abdomen. Pus stuff debris and unhealthy granular tissues present in burn wound. On opening and section cutting of both lungs, liver, spleen and both kidney containing pus was found present at places"

In the opinion of the doctor, the cause of death was septicemia as a result of ante mortem burn injuries.

The defence of the appellant, that emerges from the suggestion given to the witnesses and his reply in his statement under Section 313 Cr.P.C. and also by the written statement filed by him under Section 233 (2) Cr.P.C. was that it was an accidental death. The relations between the appellant and the deceased were very cordial. There was no demand of dowry. The deceased accidentally caught fire while she was cooking food. She was immediately taken to the District Hospital, Raebareli, where she remained for few days and thereafter she was referred to Medical College, Lucknow. The appellant throughout managed her treatment. It was also pleaded that neither the appellant nor the deceased were in any services so there was no question of any quarrel on the point of salary. His father in law Ganga Prasad Jaiswal simply for extracting money from the appellant, has lodged a false case against him. The appellant is innocent. Initially the charges were framed, as per, charge sheet under Sections 498-A & 304-B I.P.C. and Section 3 /4 of the Dowry Prohibition Act. Subsequently alternative charge under Section 302 I.P.C. was also framed.

In order to prove its case, the prosecution has examined PW-1 complainant Ganga Prasad Jaiswal, father of the deceased, PW-2 Manahu Devi wife of Ganga Prasad Jaiswal as a witnesses of fact. PW-3 Dr. Birbal who had medically examined the body of Smt. Sangeeta on 23.8.2009. PW-4 S.D.M. Jai Nath, who has recorded the dying declaration of the deceased on 24.8.2009 at 4:30 p.m. PW-5 Dr. Rajesh Kumar had conducted postmortem on the body of the deceased. PW-6 Head Constable Chandra Shankar, who has prepared chik report and G.D. of this case. PW-7 Circle Officer Kripal Singh, Investigating Officer of this case.

In defence, D.W. -1 Rajesh Singh has been examined. D.W. -1 has stated that he heard about the accidental burn injuries of the deceased and on the request of the appellant, he took Sangeeta (deceased) on his jeep for her treatment to Rae Bareli. D.W. -2 Harish Chandra is the person who lives in front of the house of the appellant and deceased. He has also supported the defence story of the accidental burn injuries while cooking food.

After appreciating the evidence on record, learned trial court has convicted the appellant on the basis of dying declaration of the deceased and sentenced him as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that in the instant case, there was voluminous evidence regarding the accidental burn injuries of the deceased. Even the parents of the deceased have not supported the case of the prosecution. He has further submitted that the deceased was not in a fit state of mind to give her dying declaration and the doctor, who has given the certificate of fitness, has been withheld by the prosecution and keeping in view the overwhelming evidence in support of the appellant, non production of the doctor gives rise to an inference against the prosecution. It has also been argued that admittedly the deceased died after several days of the accident and the parents of the deceased and the appellant all were witnesses in the inquest proceedings and at that time, all the inquest witnesses had given opinion that the deceased accidentally caught fire while she was cooking food. Even no suspicion was raised before the police that it was a case of homicidal death. It has also been argued that the trial court has placed implicit reliance on the dying declaration but has overlooked the fact that there was no question of giving any salary because neither the appellant nor the deceased were in any service. So it reflects that the deceased was not in a fit state of mind to give any statement. On these ground, the finding of the trial court has been assailed and it is submitted that the conviction of the appellant recorded by the trial court becomes unsustainable under law.

Learned A.G.A. has submitted that in the instant case, the trial court has not committed any illegality in placing implicit reliance on the dying declaration of the deceased. He has argued that law is settled on the point that the dying declaration, if found wholly reliable, would be sufficient to record conviction of the accused. In the instant case, dying declaration of the deceased was found to be wholly reliable, therefore, learned trial court has not committed any illegality in convicting the appellant. Accordingly, the appeal has no merit and no interference in the impugned judgment is called for in this appeal.

Before proceeding further in the matter, we would like to give short narration of the prosecution evidence. PW-1 complainant Ganga Prasad Jaiswal, who happens to be the father of the deceased, has not supported the case of the prosecution. Though he has proved the F.I.R. but in his cross examination, he has stated that there was no demand of dowry and the deceased never told him about any demands of dowry or consequential ill treatment. The relation between the appellant and the deceased were very cordial. They were blessed with one daughter out of said wedlock. He has admitted that the deceased was admitted in the hospital by the appellant and the appellant was continuously with him during her entire treatment and also at the time of the inquest proceedings, he has not made any complaint to the Magistrate regarding demand of dowry and consequential ill treatment. He has also stated that when he went to District Hospital Rae Bareli then his daughter was not in a condition to speak and his daughter has never told him that the family members of the appellant have committed this offence by pouring kerosene oil on her. He has also stated that about fifteen days prior to the incident, the victim had come to his house and thereafter the appellant came for her Vida, which took place in a pleasant atmosphere. He has also stated that report, on which the case was registered, was drafted by an Advocate and he signed the same without reading it on the faith of the advocate. He has stated that after the incident, her daughter (deceased) was not in a position to speak. Thus the evidence of this witness, does not support the case of the prosecution rather it adversely affect the case of the prosecution. PW-2 Manahu Devi is the mother of the deceased. She has also not supported the case of the prosecution and has been declared hostile. She has denied the allegation of demand of dowry and consequential ill treatment. In her examination in chief, this witness has stated that on the second day in the hospital, her daughter told her that she caught fire while she was cooking food. In the cross examination by the defence, she has stated that at the time when the Magistrate had come to record the statement at that time, Jethani of the deceased was present. In the presence of her Jethani, the Magistrate has recorded the statement of the deceased. The relations between the appellant and the deceased were very cordial. She has also stated that there was no smell of kerosene oil from her clothes. So both these witnesses have not supported the allegations of demand of dowry and consequential ill treatment and both these witnesses have given statement in support of the appellant. PW-3 Dr. Birbal, who had initially medically examined the injured on 23.8.2009 and had noted the injuries on the body of the deceased, has reported that the deceased had sustained 88% burn injuries and has also stated that the deceased was admitted by appellant Sanjay Kumar Jaiswal on 23.8.2009 at 3:35 p.m. and on 25.8.2009 she was referred to Medical College Lucknow. In the cross examination, he has stated that at the time of the admission of the deceased there was no smell of kerosene oil from her clothes. It transpires from the medical papers filed on behalf of the prosecution that at the time of her medical examination, an information was given to the police. The police was also informed regarding this incident on 23.8.2009 vide (Ex. Ka-3). PW-4 is S.D.M. Jainath, who has recorded dying declaration of the deceased and has proved the same. PW-5 Dr. Rajesh Kumar, who has conducted the postmortem report. PW-6 Head Constable Chandra Shankar is a formal witness. The evidence given by PW-7 Circle Officer Kripal Singh in the peculiar facts of this case, is not of much importance because the conviction has been based on the basis of the dying declaration of the deceased recorded by PW-4 S.D.M. Jainath, which was recorded much prior to the registration of the case.

According to the version of the F.I.R., the complainant has explained the delay by stating in the F.I.R. that because of the shock of the death of his daughter, he came back from Lucknow to his village in Barana Teekar, Police Station Gauriganj, district Sultanpur. When he became able to move, he went along with his brother to Police Station Udaypur then he was returned from the Police Station saying that S.H.O. is not present and F.I.R. shall be lodged only after his arrival. Again on 11.9.2009, he went with his brother to Police Station Udaypur but he was told that Head Clerk is not there so the report cannot be registered. He was asked to take the copy of the report after 2-3 days. He again went on 15.9.2009 to Police Station Udaypur then he found that his son in law (appellant) and one Ram Dev Pal were sitting there and asked him to go away as nothing can be done. S.H.O. asked him to take some compensation for the death of his daughter. The complainant thereafter sent applications to several higher authorities and ultimately an application addressed to Chairman, Human Rights Commission, Delhi, was sent to S.P. Pratapgarh, thereafter F.I.R. was lodged. The explanation that the complainant was unable to move, does not appeal to reason. The deceased died on 6.9.2009 at 4:15 p.m. as per postmortem report and the inquest proceedings took place on 7.9.2009 at 15:25 hours i.e. after about one day of her death. There is no dispute to the fact situation that the complainant, and his wife, both were witnesses in the inquest proceedings. The inquest proceedings, in this case, were conducted in the presence of Deputy Collector, Lucknow. But even in the presence of police and the magistrate, no complaint of any demand of dowry or homicidal death of the deceased was made by the complainant, while according to the case of the prosecution, the deceased had told the complainant and his wife regarding her homicidal death at the hands of the appellant and his family members. The age of PW-1 complainant Ganga Prasad Jaiswal was 48 years on 17.6.2011 i.e. the date on which the statement was recorded. Thus he was aged only about 45-47 years old on the date of incident. So his age was not so advanced as to make him unable to move. Thus this false explanation regarding delay in lodging the F.I.R. makes the defence of the appellant probable that in consultation with an Advocate in order to extract money, the application was moved and false case was fabricated.

It is pertinent to mention here that during trial neither PW-1 complainant Ganga Prasad Jaiswal nor PW-2 Manahu Devi have supported the case of the prosecution. Therefore, in the instant case, there is undue delay in lodging the F.I.R. and explanation, which has been furnished therefor, does not appeal to reason. Law is settled on the point that even if the first information report is delayed and delay remains unexplained or unsatisfactory explanation is furnished even then the same cannot be made the sole basis to discard the entire prosecution case but in that circumstances the Court is obliged to scrutinize the prosecution case with extra care and caution. Reference on this point may be made to the pronouncement of Hon''ble Apex Court in the case of Kanhaiya Lal and Others Vs. State of Rajasthan, , wherein Hon''ble the Apex Court has held as under:--

"12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of Himichal Pradesh Vs. Gian Chand, , wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

In Ramdas and Others Vs. State of Maharashtra, , this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution."

Since in the instant case, the trial court has convicted the appellant on the basis of the dying declaration of the deceased, which was recorded on the very next day from the date of occurrence, therefore, in the peculiar facts of this case, the delay in lodging the F.I.R. cannot be a ground to discard the entire prosecution case. So the only point that remains to be considered is the dying declaration of the deceased. For better appreciation of the dying declaration, we consider it appropriate to reproduce the dying declaration (Ex. Ka-4), which reads as under:--

"I have examined Smt. Sangeeta W/o Sanjay Jaiswal R/o Nasirpur, Police Station Udaypur, District Pratapgarh at 4:35 p.m. On 24.8.2009. She has in mental sound position to give her statement.

Before proceeding further in the matter, we would like to discuss the law on the point of dying declaration.

In the case of Bhagwan Tukaram Dange Vs. State of Maharashtra, , Hon''ble the Apex Court in paragraph 8 has held as under:--

"8. The Court has to carefully scrutinize the evidence while evaluating a dying declaration since it is not a statement made on oath and is not tested on the touchstone of cross-examination. In Harbans Singh and Another Vs. State of Punjab, this Court held that it is neither a rule of law nor of prudence that dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. Reference may also be made to the decision of this Court in State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, . This Court in State of Uttar Pradesh Vs. Suresh alias Chhavan and Others, held that minor incoherence in the statement with regard to the facts and circumstances would not be sufficient ground for not relying upon statement, which was otherwise found to be genuine. Hence, as a rule of prudence, there is no requirement as to corroboration of dying declaration before it is acted upon."

In the case of Munnu Raja and Another Vs. The State of Madhya Pradesh, , Hon''ble the Apex Court has held as under:--

"7. It was contended by the learned Counsel for the Appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the Court may be in a position to Assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring."

The case of Khushal Rao Vs. The State of Bombay, and case of Munnu Raja (supra) have been referred to and followed by Hon''ble the Apex Court in the case of Gulam Hussain and Another Vs. State of Delhi, , wherein Hon''ble the Apex Court in paragraph 8 has observed as under:--

"8. Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsay evidence and the statement made by a person, written or verbal, of relevant facts after his death is admissible in evidence if it refers to the cause of his death or any circumstances of the transactions which resulted in his death. To attract the provisions of Section 32 , the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without any amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in Sub-sections (1) to (8) of Section 32 of the Evidence Act."

In the case of Babu Lal and Others Vs. State of Madhya Pradesh, , Hon''ble the Apex Court has again considered the law regarding dying declaration and has observed in paragraph 7 as under:--

"7....A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his maker with a lie in his mouth" (Nemo moriturus praesumitur mentire). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is 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 mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice..... "

In a recent judgment in the case of Hiraman Vs. State of Maharashtra, , Hon''ble the Apex Court after discussing the law in detail on this point has concluded in paragraph 29 as under:--

"29. Thus as can be seen, by enacting Section 32(1) in the Evidence Act, the legislature has accorded a special sanctity to the statement made by a dying person as to the cause of his own death. This is by virtue of the solemn occasion when the statement is made. Besides, when the statement is made at the earliest opportunity without any influence being brought on the dying person, there is absolutely no reason to take any other view for the cause of his or her death. The statement has to be accepted as the relevant and truthful one, revealing the circumstances which resulted into his death. Absence of any corroboration can not take away its relevance. Exaggerated doubts, on account of absence of corroboration, will only lead to unmerited acquittals, causing grave harm to the cause of justice and ultimately to the social fabric. With the incidents of wives being set on fire, very unfortunately continuing to occur in our society, it is expected from the Courts that they approach such situations very carefully, giving due respect to the dying declarations, and not being swayed by fanciful doubts."

There is no dispute to the fact situation that in the instant case, F.I.R. of this case was lodged after a considerable delay of seven months.

As per the dying declaration, certificate of the doctor was obtained before and after recording the dying declaration. But the said doctor, who has certified that the deceased was in a fit state of mind to give statement, has not been produced by the prosecution. We are aware of the legal position that even the requirement of certificate of doctor regarding the fitness of the deceased is only a rule of prudence and not a rule of law. Actually it is the satisfaction of the officer recording the statement, which assumes importance. The dying declaration was recorded by PW-4 S.D.M. Jainath. He has stated that Medical Emergency Officer has told that deceased was capable of giving her statement. Thereafter he went in the ward and her statement was recorded after the doctor and other persons, who were present there went away from there. He has further stated that the doctor had identified the thumb impression of the deceased. But he has nowhere stated that on the said statement, he obtained the certificate of the doctor regarding fitness of the deceased to give statement. He has nowhere stated that after seeing the victim, he himself was satisfied that the victim was in a fit state of mind to give her statement. It has also come in evidence that the deceased was admitted in burn ward and he made no effort to consult the doctor, who was in-charge of the burn ward regarding fitness of the deceased. These circumstances, though by itself, would not have impressed us to a great extent but keeping in view the evidence of the parents of the deceased, these circumstances assumed great importance. PW-1 complainant Ganga Prasad Jaiswal, father of the deceased has specifically stated that the deceased was not able to speak for a period of about two days. On the contrary, PW-2 Manahu Devi, mother of the deceased has stated that on the next day, when he asked her daughter, then she told her that she caught fire when she was cooking food. So such statement of this witness (PW-2) falls within the purview of oral dying declaration of the deceased. Though this witness was declared hostile but no such suggestion was given by the public prosecutor to this witness in cross-examination that the deceased had not told her about the accidental catching of fire while cooking food. This fact also assumes great importance while appreciating the dying declaration. There is yet another very important factor, which shakes credibility of the dying declaration and gives rise to the inference that the deceased was not in a fit state of mind to give her statement. The deceased in her dying declaration has stated that the quarrel between two was regarding salary. It is nowhere the case of the prosecution that the appellant was in service. It has also nowhere been stated by any witness nor it has been suggested to the parents of the deceased that the deceased was in service or was getting salary. When none of the two were in any salaried profession then there was absolutely no occasion for them to quarrel on the point of salary. It shows that this fact creates doubt regarding the mental status of the deceased and leads to the inference that she was not in fit state of mind. This circumstance persuaded us to seek corroboration of the dying declaration of the deceased. We failed to get any corroboration from any circumstance proved by the prosecution. Even the doctor, who has medically examined her on the date of incident, has specifically stated that there was no smell of kerosene oil from the body of Sangeeta (deceased). This statement of the doctor, who has initially medically examined the deceased for the first time also makes the dying declaration doubtful.

In these circumstances, the subsequent conduct also has to be looked into as the same is admissible in view of Section 8 of the Indian Evidence Act.

Section 8 of the Indian Evidence Act reads as under:--

"8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."

Perusal of the evidence clearly established that the information of this incident was given by the appellant without any delay to the complainant. Immediately the appellant made arrangement of a jeep and took his wife Smt. Sangeeta for her treatment to District Hospital, Raebareli as proper medical facilities were not available in the nearby P.H.C. She was taken on the jeep as stated by D.W. -1 while she was being taken to the hospital, the appellant again informed the complainant to come to District Hospital Raebareli as Smt. Sangeeta was being taken for her treatment to District Hospital, Raebareli. Such conduct shows that the appellant was of the view that after getting the information, the complainant would come to his house and therefore he immediately informed the complainant to come to District Hospital, Raebareli. Smt. Sangeeta in burnt condition was admitted by the appellant in the hospital. This fact stands proved by the medical papers. He continuously remained present there throughout the treatment. It also transpires from the perusal of the medical papers that on the date of incident, the police was informed by the doctor. Even thereafter the appellant made no effort to escape from there. He for better treatment of his wife got her voluntarily discharged from District Hospital, Raebareli but when he found that her condition was not fit enough to bring her to Medical College, Lucknow then she was again readmitted in the same hospital. When her condition become a bit stable then she was brought to Medical College, Lucknow where her treatment continued but ultimately she expired on 6.9.2009. Admittedly the entire expenses of the treatment were borne by the appellant. He continuously remained present throughout the treatment and even thereafter during the inquest proceedings before the Magistrate and the police. The court cannot overlook such a bona fide conduct of the appellant and this post incident conduct of the appellant also makes the defence case probable that it was a case of accidental death and the appellant made all efforts to save the life of his wife. This subsequent conduct also persuaded us and supports our conclusion that the victim at the time of the incident was not in a fit state of mind to give her statement.

There is ample evidence on record to probabilize the defence to lead to the conclusion that it was an accidental death as claimed by the appellant. The two defence witnesses have also supported the case of the appellant. In the instant case, even the parents of the deceased have also supported the case of the defence. Keeping in view the voluminous evidence on record to infer that it was a case of accidental death and keeping in view the circumstances, which makes the dying declaration not wholly reliable. We are of the considered view that the appellant becomes entitled for benefit of doubt. The trial court failed to notice the above-mentioned circumstances and has held that the dying declaration was wholly reliable, which has rendered its judgment unsustainable under law.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 21.11.2011 passed by learned Additional Sessions Judge/Fast Track Court Ex. Cadre Court No. 7, Pratapgarh in Sessions Trial No. 437 of 2010 is hereby set aside. The appellant is acquitted of the charge levelled against him. The appellant is in jail. He shall be released forthwith, if not wanted in any other case.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.