Judgment [Per: Hon’ble U.C. Dhyani, J.] Allegedly, it is a case of dowry death in which parents and relatives of husband have been arraigned as accused persons. Of course, husband is the prime accused. Criminal law was set into motion by unfortunate father of victim. FIR was belated. Two dying declarations were recorded - first one at PGI, Chandigarh where victim was admitted by her in-laws and second one at parental house of victim. When we proceed to discuss evidence on record, we will find that both dying declarations are non est in the eye of law. There are oral evidences from both the sides. Following paragraphs will reveal that oral testimony of prosecution witnesses is not convincing, death of woman within 7 years of marriage in unnatural circumstances notwithstanding. Cruelty and harassment to ill-fated woman soon before her death could not be proved beyond reasonable doubt on the basis of evidence on record. 2. Prosecution story is that a written complaint was lodged by the father of deceased Mohan Lal Sharma s/o Mangat Ram Sharma r/o Kaithal (Haryana) at P.S. Vikasnagar, Dehradun that his daughter Smt. Sunita was married to accused Devender Kumar Sharma s/o Som Dutt Sharma on 09.12.1990 according to Hindu religion and customs. He made expenses in the marriage as per his status. Immediately after the marriage, the accused persons started harassing his daughter for not bringing sufficient dowry. The complainant fulfilled the same from time to time according to his capacity, but the accused persons were not satisfied. His daughter was not happy in her matrimonial home and always made complaints of ill-behaviour of the accused persons. The complainant always persuaded her to remain in her matrimonial home. Two children - one son aged 4% years and the other daughter aged about 2 years were born out of wedlock. On 28.03.1996 he got information that his daughter sustained burns and was admitted to P.G.1. Chandigarh. He alongwith his wife and son immediately rushed to Chandigarh. On reaching Chandigarh, he found her daughter with burn injuries. He was told that the girl sustained 95% burns and there was no possibility of her survival. They also found that her in-laws were not taking any interest in her treatment. Finding her in neglected condition and as per her wishes they brought her to Kaithal. He also requested her in-laws to accompany the girl to Kaithal, but they refused. He was told that the girl sustained 95% burns and there was no possibility of her survival. They also found that her in-laws were not taking any interest in her treatment. Finding her in neglected condition and as per her wishes they brought her to Kaithal. He also requested her in-laws to accompany the girl to Kaithal, but they refused. Ultimately, he brought daughter to Kaithal where on 30.03.1996 she succumbed to burn injuries. Even before the said incident, her in-laws called the complainant to Vikasnagar after giving telegram of illness of her daughter. There was a family dispute, complainant resolved that dispute and came back to Kaithal. 3. On the basis of written report chik FIR (Ext.Ka-3) was lodged. A case under Section 498-A/304-8 of IPC was registered against the accused persons. Investigating Officer prepared site plan (Ext. Ka-7). After completing the investigation, Investigating Officer submitted charge-sheet against the accused persons. Trial began. Finding a prima facie case, charges against all the six accused persons were framed for the offences punishable under Sections 304-B (2) / 498-A of IPC to which they pleaded not guilty and claimed to be tried. 4. Prosecution examined as many as 12 witnesses, viz., P.W.1 Dr. G.K. Mathur, P.W.2 Mohan Lal, P.W.3 Smt. Dhanwanti, P.W.4 Rajesh Kumar, P.W.5 Ravi Kant, P.W.6 H.C. 65 Satya Prakash, P.W.7 Dharam Singh, P.W.8 Jagga Singh, P.W.9 Ram Krishan, P.W.10 Dr. B.B. Kakkar, P.W.11 Om Prakash Yadav and P.W.12 Mahendra Kumar Singla. In defence, D.W.1 Smt. Rekha Chauhan, D.W.2 Sri Kanti Ram, D.W.3 H.C.Azad Singh, D.W.4 Dr. Randeep Kashyap, D.W.5 Devender Kumar and D.W.5 Som Dutt Sharma (accused) were examined. Ext. Kha-1 and Kha-2 issued by Block Primary Education Officer, District Sirmor (H.P.) were also filed in defence. A dying declaration, which was got recorded by H.D.Azad Singh at P.G.I. Chandigarh on the instructions of Dr. Randeep Kashyap was also filed on record as Ext. Kha-3. Oral and documentary evidence was put to the accused Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi under Section 313 Cr.P.C. to which they said that evidence adduced against them is false. They said that they were innocent, they never harassed the deceased for dowry. They also said that the deceased Sunita sustained injuries by bursting of stove while cooking food. They immediately took her to hospital and looking at her critical condition, they took her to PGI, Chandigarh. 5. They said that they were innocent, they never harassed the deceased for dowry. They also said that the deceased Sunita sustained injuries by bursting of stove while cooking food. They immediately took her to hospital and looking at her critical condition, they took her to PGI, Chandigarh. 5. Learned trial court found accused Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi guilty of the offences punishable under Sections 304-B IPC and 498-A IPC and convicted them. Present Criminal Appeal was directed against the judgment and order dated 11.02.2002 passed by Addl. Sessions Judge/III FTC Dehradun whereby accused/appellants Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi were convicted under Section 304-B IPC in sessions trial no. 27/1997 and were sentenced to 12 years rigorous imprisonment. Accused /appellants were also been convicted under Section 498-A IPC and were sentenced to undergo rigorous imprisonment for a period of 2 years and were also directed to pay a fine of ‘5000/- and in default of payment of fine, each one of them was required to further undergo rigorous imprisonment for a period of 6 months. All the sentences were directed to run concurrently. Co-accused Jaipal @ Jai Gopal, Ram Sewak and Smt. Krishna Devi were however, acquitted of the charges framed against them. 6. We have heard learned counsel for the appellant, learned Addl. Government Advocate and perused the lower court record. 7. P.W.1 Dr. G.K. Mathur, private practitioner, Kaithal, Haryana found that Sunita had sustained 95% burns. He proved the certificate given by him as Ext. Ka-1. Dr. Mathur has a very limited role to play in the prosecution story. 8. P.W.2 Mohan Lal (father of deceased) supported prosecution story in his examination-in-chief. He was the informant who set the criminal law into motion by filing a complaint (Ext. Ka-2) on the basis of which chik FIR (Ext. Ka-3) was lodged on 03.04.1996 at 6:15 p.m. The incident took place on 28.03.1996 at 6:45 a.m. As many as 6 people were arraigned in the category of accused persons. 9. In cross-examination informant Mohan Lal admitted that the letters posted by his daughter were not available with him. He had convened a meeting at Kaithal with appellant Devendra Kumar and his uncle Radhay Shyam. The same was done before 2-3 days of Sunita’s death. 9. In cross-examination informant Mohan Lal admitted that the letters posted by his daughter were not available with him. He had convened a meeting at Kaithal with appellant Devendra Kumar and his uncle Radhay Shyam. The same was done before 2-3 days of Sunita’s death. He also admitted that appellant Devendra’s uncle and aunty (Krishna and Ram Sewak) resided separately from Devendra. Informant’s daughter have two children. The doctor at PGI, Chandigarh advised informant to take his daughter on his own volition. Appellant Devendra did not come when his wife’s last rites were performed. He came on the next day. Sunita’s in-laws were informed by telegram. When his daughter was alive, she narrated her agony to her parents. When Devendra came to informant’s residence, informant did not quarrel with him. Devendra stayed with him for a night. Post mortem of deceased was not conducted. Father admitted that his daughter talked to doctor (and them) until her death. Informant did not inform any administrative or police officer regarding death of his daughter. Father of victim also said that since it was not possible to lift his daughter therefore, post mortem was not conducted. He took his daughter with him on his own volition and not on advice of doctor. He did not procure medico legal case summary of his daughter. He did not call anybody to prepare site plan. He admitted that post mortem of deceased was necessary. Father of deceased disclosed a very important thing in his cross-examination that Sunita’s children were with appellant Devendra. 10. P.W.3 Dhanwanti was the unfortunate mother of deceased. She said in her examination-in-chief that in-laws of her daughter harassed her for dowry. They demanded scooter (in dowry). Her daughter disclosed that her in-laws ridiculed her for the same. In her cross-examination, she said that Sunita’s father and brother used to go to meet her in her matrimonial home. Sunita’s father and brother wrote letters to Sunita. Sunita also replied letters. When appellant Devendra came to visit his in-laws, he used to stay there for 4-8 days. Children of P.W.3 Dhanwanti also used to stay at Sunita’s matrimonial home. Her daughter expressed her agony to her mother. Mother admitted that no panchayat was convened after death of her daughter. At page no. 8 of the cross-examination P.W.3 Dhanwanti said that her daughter did not tell them anything about this incident. Children of P.W.3 Dhanwanti also used to stay at Sunita’s matrimonial home. Her daughter expressed her agony to her mother. Mother admitted that no panchayat was convened after death of her daughter. At page no. 8 of the cross-examination P.W.3 Dhanwanti said that her daughter did not tell them anything about this incident. Smt. Sunita told only this much that she was extremely unhappy (with her life). There was no panchayat after her death. 11. P.W.4 Rajesh Kumar was the brother of victim Sunita. He also supported prosecution story in examination-in-chief but admitted in cross-examination that the couple (Sunita & Devendra) came to attend his brother’s marriage in 1992. Whenever she came, she used to stay with them for 4-5 days. She came to her parental home for about 7-8 times. She stayed there for 15 days at the time of delivery. They used to exchange visits during festivals. When brother went to his sister, he stayed there for 2-4 days. He was not aware whether any panchayat was convened after death of Sunita at Kaithal. Many a facts were confronted with this witness so far as his statements given to Investigating Officer were concerned. 12. P.W.5 Ravi Kant had family relations with informant Mohan Lal Sharma. He counselled Sunita many a times when she aired her grievance to this witness. In cross- examination he said that there are 10-12 houses between his residence and informant Mohan Lal’s residence. He also visited PGI, Chandigarh and said that none from the side of Devendra was present there. He accompanied informant to the police station. He admitted that Devendra came two days after the cremation of his wife. He also admitted that he was not present on the place of occurrence. He never visited appellant Devendra’s house. Like other witness, many a questions were confronted with this witness also regarding his statement given to Investigating Officer. P.W.5 Ravi Kant was the friend of the brother of deceased. P.W.5 Ravi Kant in his statement said that he accompanied brother of deceased to P.G.I. Chandigarh where Sunita told him that she was harassed by in-laws for dowry. It is to be underlined here that P.W.2 Mohan Lal, P.W.3 Smt. Dhanwanti and P.W.4 Rajesh Kumar were also present in P.G.I. Chandigarh and according to them, Sunita did not say anything to them that she was harassed by the accused. It is to be underlined here that P.W.2 Mohan Lal, P.W.3 Smt. Dhanwanti and P.W.4 Rajesh Kumar were also present in P.G.I. Chandigarh and according to them, Sunita did not say anything to them that she was harassed by the accused. If that statement was not deposed by the deceased Sunita to her own father, mother and brother, how could she say it to a third person, who was not even a member of her family? 13. P.W.6 Head Constable Satya Prakash was a formal witness. He scribbled chik FIR (Ext. Ka-3) on the basis of a written report. He has also made entry in the G.D. and has proved the same. 14. P.W.7 Dharam Singh was neighbour of informant Mohan Lal. He heard on 30.03.1996 about Sunita’s critical condition. When he went to Mohan Lal’s house, victim narrated her story. She died the same evening. He admitted in cross-examination that no post mortem of deceased was conducted. He got the information about victim’s death on 30.03.1996. P.W.7 Dharam Singh was a member of panchayat. He has not given the date, month and the year when panchayat was convened and what was the outcome of that panchayat. 15. P.W.8 Jagga Singh was the driver by profession and was neighbour of informant Mohan Lal. He accompanied Mohan Lal to Kaithal and Vikasnagar. The door was opened by Sunita and it was ridiculous that he heard voices from inside the house demanding dowry. P.W.8 Jagga Singh came to know later on that victim had died. It seems improbable that when this witness reached Sunita’s matrimonial home at Vikasnagar, the door was opened by her only and the people inside were demanding dowry. Therefore, the theory of demand of dowry set-out by P.W.8 Jagga Singh is not acceptable. How could it happen that immediately on opening the door the demand of dowry by in-laws started? 16. P.W.9 Ram Krishna got the information about victim’s death in 1996. This witness had been to PGI, Chandigarh where victim asked him to take her to Kaithal. She was brought to Kaithal. Next day victim died. P.W.9 Sri Ram Krishan was the maternal grandfather of the deceased. He admitted in his cross-examination that victim said only this much that something wrong was got written by her husband in absence of police. Victim did not tell him anything else. She was brought to Kaithal. Next day victim died. P.W.9 Sri Ram Krishan was the maternal grandfather of the deceased. He admitted in his cross-examination that victim said only this much that something wrong was got written by her husband in absence of police. Victim did not tell him anything else. This witness pleaded ignorance on many a vital aspects of the case. 17. P.W.10 Dr. B.B. Kakkar was a man before whom Sunita’s statement was recorded by Mahendra Kumar Singla. Dr. Kakkar was posted as Medical Officer in Civil Hospital Kaithal on 30.03.1996. One Mahendra Kumar Singla had recorded Smt. Sunita’s dying declaration in his presence. He filed the photocopy of the statement of Smt. Sunita. The original of dying declaration was not filed in the court. It is to be noted here that photostat copy of any document is not admissible in evidence. Dr. Kakkar has however, proved the endorsement (Ext. Ka-6) made by him on dying declaration. He said that original statement was handed over to the father of the deceased. No such original was brought on record. 18. P.W.11 Om Prakash Yadav Dy.S.P. (retd.) was the Investigating Officer of the case when he was posted as Circle Officer, Vikasnagar. He had conducted the investigation of the case. He prepared site plan (Ext. Ka-7) and submitted charge sheet (Ext.Ka-8). 19. P.W.12 Mahendra Kumar Singla recorded dying declaration (Ext. Ka-6) of Sunita. His shop was at some distance from the shop of Mohan Lal. He also said about the dying declaration of Smt. Sunita which bears the thumb impression of victim and note of Dr. Kakkar (Ext.Ka-6) is written in the handwriting of P.W.12 Mahendra Kumar Singla.As said earlier the original of the so-called dying declaration has not been produced in evidence. Moreover, certain suggestions were put on behalf of the defence to suggest that Ext. Ka-6 did not bear the thumb impression of Smt. Sunita and also that the dying declaration was a forged paper, which were denied by this witness. 20. D.W.1 Radhay Shyam said that Smt. Sunita and her husband Devender were a happy couple. He never heard that any quarrel ever took place between them. D.W.2 Rekha Chauhan was the neighbour of Devender and his family. She also said that Devender and Sunita were in good terms with each other. 20. D.W.1 Radhay Shyam said that Smt. Sunita and her husband Devender were a happy couple. He never heard that any quarrel ever took place between them. D.W.2 Rekha Chauhan was the neighbour of Devender and his family. She also said that Devender and Sunita were in good terms with each other. On 27.03.1996 at 7:00 p.m. when she was working at her home she heard the cries of Smt. Sunita. She went to Devender’s home only to find Sunita in burnt condition. She was lying on a cot outside her kitchen. Then her husband Devender came to her. When enquired, Smt. Sunita told them that she had sustained burns while cooking food. D.W.3 Kanti Ram proved certificate (Ext.Kha-1 and Kha-2) to show that Som Dutt Sharma was present in his office on 30.03.1996 at Sirmor, Himachal Pradesh. But in the cross-examination this witness himself admitted that he did not verify the attendance of Som Dutt personally. 21. D.W.4 H.C. Azad Singh deposed that he was posted on 28.03.1996 at PGI Police Post. He recorded dying declaration of Smt. Sunita in presence of Dr. Randeep Kashyap. He proved the dying declaration (Ext.Kha-3) and said that this statement bears thumb impression of Smt. Sarita. In cross-examination, he admitted that he did not call Magistrate to record dying declaration. It was not in question-answer form. It bears the signatures of her husband Devendra also. It does not contain the certificate of the doctor. D.W.5 Dr. Randeep Kashyap was posted on 28.03.1996 at P.G.I., Chandigarh. Information regarding burn injury case was given to Police Post P.G.I., Chandigarh. Dying declaration was recorded by H.C. Azad Singh. Ext. Kha-3 bears his signatures and his, note. Doctor said that Smt. Sunita was in a position to speak. Dying declaration (Ext. Kha-3) bears Sunita’s signatures as well as her husband Devender’s signatures. He recorded dying declarations of many a victims in the past. It was a case of accidental burns. 22. D.W.6 Devender Kumar (husband / accused) stated that two children were begotten out of his wedlock with Smt. Sunita. Both the children live with him. He and Sunita had no dispute, no quarrel. His father was a teacher in Sirmor, Himachal Pradesh. D.W.6 Devender Kumar has clarified that Sunita was also called Sarita. When Smt. Sunita @ Sarita received burns, he was at his shop. Both the children live with him. He and Sunita had no dispute, no quarrel. His father was a teacher in Sirmor, Himachal Pradesh. D.W.6 Devender Kumar has clarified that Sunita was also called Sarita. When Smt. Sunita @ Sarita received burns, he was at his shop. When he received information, he immediately rushed to his house whereupon he found that Sunita was lying on a cot. When her husband enquired about the incident, she told him that she had sustained burns by bursting of stove while she was cooking food. He also stated that dying declaration of Smt. Sunita @ Sarita was recorded at P.G.I., Chandigarh which bears the signatures of this witness as well. 23. Learned trial court came to the conclusion that in this particular case, both dying declarations suffer from infirmities and were not trustworthy. We are inclined to agree with the findings of learned lower court to this extent. 24. Learned lower court found that Ramsewak, Smt. Krishna Devi and Jaipal (non appellants) were not connected with the commission of crime in any manner and therefore, they were exonerated. Learned Addl. Sessions Judge found that the appellants resided under one roof. It was a joint family. The kitchen was also joint. In the circumstances, the learned trial court held that Smt. Sunita committed suicide. There must be some compelling circumstances for the same and must have crossed the level of perseverance. The victim was not provided any first-aid in Vikasnagar and Dehradun and was taken to P.G.I., Chandigarh. It was found to be an act of callousness and negligence on the part of in-laws which highlighted ill-intention of husband Devender, father-in-law Som Dutt Sharma and mother-in-law Smt. Savitri Devi. It was not a case of accidental fire. Learned trial court was of the view that the victim was harassed for dowry. He has found half of the accused guilty and the rest half were exonerated. He was of the view that appellants’ behaviour was the main cause of commission of the crime. 25. It is to be noted here that the marriage of Sunita took place in the year 1990. Her death took place in the year 1996. In this long span of six years two children were begotten. He was of the view that appellants’ behaviour was the main cause of commission of the crime. 25. It is to be noted here that the marriage of Sunita took place in the year 1990. Her death took place in the year 1996. In this long span of six years two children were begotten. In the circumstances, the prosecution evidence required to be analysed with great caution especially when it has been alleged that a demand for scooter had been raised by Sunita’s in-laws. 26. It is to be noted here that the occurrence took place on 28.03.1996 at 6:45 a.m. and the report was lodged on 03.04.1996 at 6:15 p.m. There appears to be delay in lodging the FIR. Although the complainant tried to explain the delay in his complaint but, in the background of the facts and evidence on record, that does not appear to be sufficient to explain the delay. 27. On a close scrutiny of the law relating to dying declaration and both these dying declarations available on record, it is found out that none of dying declarations inspire confidence. Both these dying declarations suffer from legal infirmities and were not recorded in accordance with law. Therefore, no reliance can be placed upon them. So far as the first dying declaration recorded in this case at P.G.I., Chandigarh is concerned, it completely exonerates the accused persons and says that deceased Smt. Sunita caught fire by accident when she was pouring oil in the stove. D.W.4 H.C. Azad Singh, who recorded this dying declaration stated in his cross-examination that a Magistrate was also posted at Chandigarh and that the Magistrate was not called or summoned for recording dying declaration. He did not explain the circumstances under which the Magistrate was not called. Even D.W.5 Dr. Randeep Kashyap also did not explain as to why the Magistrate was not called for the purpose of recording the dying declaration. The said dying declaration does not inspire confidence of the court. D.W.4 H.C. Azad Singh and D.W.5 Dr. Randeep Kashyap stated that the husband of the deceased Devender Kumar Sharma was sent out of the room when the dying declaration was recorded but the dying declaration which is Ext. Kha-3 has been verified by husband Devender Kumar Sharma. If he was not present at the time of making the dying declaration, how could he verify the same to be correct? Kha-3 has been verified by husband Devender Kumar Sharma. If he was not present at the time of making the dying declaration, how could he verify the same to be correct? Even H.C. Azad Singh did not sign the same dying declaration as scribe of the same but he has merely attested the same. Had he written the same then what was the need of attestation? Dr. Randeep Kashyap did not affix any certificate thereon stating that the deceased/maker of declaration was in a fit condition to make the statement. It was also not certified that she was conscious at the time of giving dying declaration and that statement made by her was according to her free will. Therefore, this dying declaration cannot be relied upon. 28. Subsequent dying declaration (Ext. Ka-6) was recorded at Kaithal by Mahendra Kumar Singla in presence of Dr. B.B. Kakkar. According to this dying declaration on 27.03.1996 Smt. Sunita performed asthami pooja and her mother-in-law, father-in-law, husband quarrelled with her. They used to beat her and harass her for dowry and, therefore, she poured kerosene oil on herself and lit fire. This dying declaration again cannot be accepted and cannot be relied upon. It also suffers from the same infirmity by which the earlier one suffered. It was not recorded by a Magistrate and the doctor did not affix any certificate that the maker of it was capable of making such statement or that it was so made voluntarily. It was to be noted here that this dying declaration was reduced into writing by a friend of the complainant and at the residence of complainant. Attending Dr. B.B. Kakkar was their family doctor. PW.12 Sri Mahendra Kumar Singla, who recorded the same, admitted at page 3 of his cross-examination that at that time victim was suffering from pain. He also admitted that she was not fully conscious. When the maker of the statement was not fully conscious, how could it be inferred that such a statement was made voluntarily or that she was in a fit condition to make the statement. The original of the dying declaration was not brought on record. Xerox copy is no evidence at all. 29. Learned Addl. Government Advocate argued before this Court that Smt. Sunita was killed because scooter was not given despite repeated demands of her in-laws. The original of the dying declaration was not brought on record. Xerox copy is no evidence at all. 29. Learned Addl. Government Advocate argued before this Court that Smt. Sunita was killed because scooter was not given despite repeated demands of her in-laws. Soon before her death, she was subjected to torture and cruelty on account of non-fulfilment of dowry. He also argued that on the basis on evidence on record, ingredients of offence punishable under Section 304-B IPC are made out. He however, admitted that, the ingredients of ‘valuable security’ as defined under Section 30 IPC are not made out. Learned A.G.A. relied upon the dying declaration (which is not worth accepting). 30. Elements of ‘cruelty’ and ‘harassment’ have not been evidenced. Some tangible thing should have emerged to prove these loaded words. Prosecution should have proved that the cruelty and harassment were so grave that the lady committed suicide. The intensity of harassment was so aggravated that she was compelled to commit suicide. The dying declaration, which was not believed by the trial court, cannot be taken note of because the lady was not capable of giving such a statement. It has come in evidence that it was not possible to lift her, as flesh had come out from her body. How a person was capable of giving dying declaration in these circumstances? The body was so severely damaged that there was no chance of post mortem. Body was incapable of doing anything. Subsequent dying declaration was not given in the hospital but at the residence of the father. The delay in lodging FIR was not properly explained. The FIR was lodged after about a week by the father of the deceased. The father took no steps to register the case in spite of victim’s statement to her father that “you will not be able to survive if you come to know of these things”. Father took her to home in spite of the fact that she sustained 95% burn injuries. The husband admitted her in hospital. Father got her relieved without medical advice. Whether the lady committed suicide because she wanted to save further embarrassment to her parents? Both the dying declarations, one at P.G.I., Chandigarh and another at parental home - both suffer from legal infirmities and therefore, both are liable to be ignored. There are improvements in the prosecution story. Father got her relieved without medical advice. Whether the lady committed suicide because she wanted to save further embarrassment to her parents? Both the dying declarations, one at P.G.I., Chandigarh and another at parental home - both suffer from legal infirmities and therefore, both are liable to be ignored. There are improvements in the prosecution story. Father should have gone to police, no sooner he came to know about suicide/homicide. Instead, he went to P.G.I., Chandigarh. Doctors raised their hands as she was in a critical condition. Even then FIR was not lodged. The marriage of Devendra and Sunita survived for approx 6 years. Two children were begotten out of their wedlock. What was the condition of the lady when she was taken to hospital? What was her condition when he remained in the hospital? If she was unable to talk, there was no question of recording dying declaration. Smt. Sunita was said to have written letters to her father and brothers. They also replied her letters. None of the letters have been tendered in evidence. It was said that they were torn by children. On the basis of same piece of evidence, it was not permissible for the learned trial court to have rejected prosecution story against some accused and accepted the same story against rest of the accused. The case of the two could not be segregated on the basis of same evidence. The allegations levelled against all of them were general in nature. 31. The prosecution has not been able to prove that ‘cruelty’ and ‘harassment’ was meted out to Smt. Sunita ‘soon before death’ for dowry. Hence, it has not been able to make out a case of dowry death. Consequently, the appeal filed on behalf of the appellants Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi deserves to be allowed. 32. The appeal of the appellants Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi is hereby allowed. The judgment and order dated 11.02.2002 passed by Addl. Sessions Judge/III FTC Dehradun so far as the same relates to Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi, as also conviction and sentence awarded to them by the said court is accordingly set aside. 33. The accused/appellants Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi are on bail. They need not surrender. 34. Sessions Judge/III FTC Dehradun so far as the same relates to Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi, as also conviction and sentence awarded to them by the said court is accordingly set aside. 33. The accused/appellants Devender Kumar Sharma, Som Dutt Sharma and Smt. Savitri Devi are on bail. They need not surrender. 34. Let the lower court record be sent back.