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2012 DIGILAW 1731 (ALL)

Pushpa Devi v. State of U. P.

2012-08-01

ASHOK SRIVASTAVA

body2012
Ashok Srivastava, J.;— The above mentioned two appeals are connected to each other as they arise out of the same judgment and order. 2. I have heard learned counsel for the parties on the bail prayer of the appellants, Smt. Puspa Devi and Virendra Singh. The deceased of this case is Smt.Kiran Devi. Smt. Pushpa Devi is the mother-in-law and Virendra Singh is the husband of the deceased. The deceased was married with the appellant Virendra Singh on 19.1.2002 and the alleged incident of burning took place on 14.11.2002 and the poor girl died after a lapse of some 7 days. 3. It has been submitted from the side of the appellants that there are two dying declarations in this case. The first one was recorded by D.W.4, who was posted as Addl.City Magistrate, Kanpur on 15.11.2002. The second dying declaration was recorded on 17.11.2002 after lodging of the FIR by father of the deceased. The FIR was lodged on 16.11.2002. In these circumstances it has been submitted that the dying declaration which is favouring the accused should be considered by the Court. It has further been submitted that the learned lower Court has committed a number of errors while holding the appellants guilty. It has also been submitted that the appellants are in jail since 6.3.2009. 4. The bail prayer has been vehemently opposed by the learned AGA. 5. Both the appellants have been also found guilty by the learned lower Court under Section 304-B, IPC and the maximum punishment awarded to them is 10 years rigorous imprisonment with fine in the said judgment. 6. I have examined with caution the two dying declarations. The first dying declaration was recorded on 15.11.2002 when the deceased was under the total control of the accused persons. Her father got the information of the incident in the night of 15.11.2002 and he lodged the FIR on 16.11.2002. Thereafter the second dying declaration was recorded by the Magistrate on 17.11.2002. I have examined the statement of D.W.4. He has stated in his examination-in-chief that he got an information on R.T. Set and therefore, he reached Ursala Hospital, Kanpur to record the dying declaration. He has further stated in his examination-in-chief that a doctor had certified the condition of the deceased but in his cross-examination he could not tell about the doctor who had certified the condition of the deceased. He has further stated in his examination-in-chief that a doctor had certified the condition of the deceased but in his cross-examination he could not tell about the doctor who had certified the condition of the deceased. There is no record that he actually got any R.T. Set message from any authorized source. At that time no F.I.R. was there and no extract of G.D. of Police Control Room of Kanpur Nagar has been filed showing flashing of such R.T. Message. At present, in my opinion the statement of DW-4 appears dubious, specially, when no FIR was lodged by that time regarding the incident. As a consequence the first dying declaration prima-facie also becomes dubious. I have examined with caution the entire evidence available on lower Court record. 7. Considering all the aspects of the case and without expressing any opinion as to the merits of the case I am of the view that at present no case for bail is made out in favour of the appellants and therefore, both the bail prayers are rejected. 8. Hearing of the appeal is expedited. _____________