JUDGMENT Hon’ble Anil Kumar Sharma, J.—Since both these appeals arise out of common judgment and order dated 30.05.2008 passed by the Additional Sessions Judge/Fast Track Court No. 2, Siddharth Nagar in S.T. No. 40/2005, so they have been heard together and decided by this judgment. 2. The aforesaid appellants have been convicted by the learned trial Court for the offence punishable under Sections 498-A, 304-B IPC and Section 4 of Dowry Prohibition Act and each of them has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 5,000/- under Section 498-A IPC and 10 years’ R.I. under Section 304-B IPC. They have been further sentenced to undergo two years R.I. and fine of Rs. 5,000/- each with default stipulation for the offence punishable under Section 4 Dowry Prohibition Act. 3. The facts germane to these appeals are that on 13.12.2004 complainant Krishna Mani Mishra submitted a written report in P.S. Dumariyaganj, District Siddharth Nagar alleging that marriage of his sister Anjani was solemnized with Vachaspati Pandey s/o Ram Nivas Pandey about two years ago and second marriage (Gauna) was performed on 29.04.2004. In the marriage they have given sufficient dowry and his sister was performing her marital obligations. However, her mother-in-law Gulabi Devi, father-in-law Ram Nivas, husband Vachaspati Pandey and sister-n-law Sangeeta @ Phoolmati used to taunt and harass her on account of demand of dowry. The accused persons after beating the victim left her at the house of the complainant on 23.09.2004. Thereafter the complainant and his father went to the accused persons and requested them, whereupon the brother-in-law (Jeth) Ashwani Kumar Pandey took her back promising that she would not be harassed. It was further stated that 8-9 days ago the complainant went to meet his sister where all the accused persons demanded a she-buffalo and Rs. 5,000/- and threatened him to face the consequences if their demand is not fulfilled. The complainant returned back home after mentioning their poor condition to the accused persons. The report further stated that in the night of 11.12.2004 at about 3.00 a.m. all the accused persons set her ablaze by pouring kerosene and after admitting her in District Hospital, Basti have absconded and they have not even informed them about the incident. The complainant returned back home after mentioning their poor condition to the accused persons. The report further stated that in the night of 11.12.2004 at about 3.00 a.m. all the accused persons set her ablaze by pouring kerosene and after admitting her in District Hospital, Basti have absconded and they have not even informed them about the incident. Thereafter the complainant went to District Hospital and found his sister in serious and critical condition where she succumbed to the injuries in the night of 12.12.2004 at about 2 o’clock. The complainant alongwith his written report submitted the photo copy of the injury report of his sister in the police station. On the basis of this report case under Sections 498A, 304B and 3/4 Dowry Prohibition Act was registered, investigation whereof was entrusted to C.O. Dumariyaganj. The inquest upon the cadaver of the deceased was conducted by the police at 10.00 a.m. on 13.12.2004 on the basis of the information received from the hospital. After inquest proceedings the dead body of the deceased was sent for post mortem examination alongwith usual papers. Dr. Bhavnath Pandey conducted autopsy at 3.30 p.m. on 13.12.2004. The doctor found that the deceased was average built. Her eyes were closed and mouth was open. Hospital bandage was present on left lower limb and adhesive tapes were applied over both dorsal aspect of hand. Rigor mortis was present over all four limbs. Smell of kerosene was present in hairs. The doctors have noted the following ante-mortem injury on the person of the deceased: “Superficial to deep burn present over whole body except right gluteal and penumslical region and soles vericle present at places. Line of redness present. About 98% burn.” In internal examination the doctors found that pleura, both lungs and both kidneys were congested. Soothing particles were found in the larynx and trachea. The uterus was found non-gravid. In the opinion of the doctor the deceased has suffered death due to shock on account of ante-mortem burn injuries at 2.20 a.m. on 13.12.2004. Earlier the deceased was taken to the hospital in injured condition by her husband and she was medically examined by Dr. S.K. Mall at 8.30 a.m. He found following injuries on her person: “Direct flame burn 100% superficial to deep. Smell of kerosene oil present on body skin with broken blisters, some blusterous contain white serum. Earlier the deceased was taken to the hospital in injured condition by her husband and she was medically examined by Dr. S.K. Mall at 8.30 a.m. He found following injuries on her person: “Direct flame burn 100% superficial to deep. Smell of kerosene oil present on body skin with broken blisters, some blusterous contain white serum. Black soot was present at places.” General condition was very poor. Pulse was feeble 30/mt. Patient was in dilemma and unable to explain cause of burn. Dehydration and singing of hairs fresh. Patient admitted. Police informed D/D to be recorded. 4. On 12.12.2004 at 2.30 p.m. the dying declaration of the deceased was recorded by S.D.M. Sadar. The Investigating Officer inspected the scene of occurrence and collected ashes from the house of the accused through memo. He has also prepared the site plan. The witnesses were interrogated and after completion of investigatory formalities charge-sheet was submitted against the accused persons. 5. After committal of the case to the Court of Session the case of Km. Sangeeta was separated and sent to the Juvenile Justice Board, as she was a delinquent juvenile. Charges for the offence punishable under Section 498-A, 304-B IPC and Section 4 of Dowry Prohibition Act were framed against the accused-appellants who abjured their guilt and claimed trial. 6. In order to prove its case, the prosecution has examined Surya Narayan Mishra PW-1, complainant Krishna Mani Mishra PW-2, Head Constable Ram Laxman Singh PW-3, Dr. Bhavnath Pandey PW-4, C.O. Shailendra Rai PW-5 and Ramesh Chandra Srivastava PW-6. 7. In their separate statements under Section 313 Cr.P.C. all the accused-appellants have admitted that deceased was married with accused Vachaspati Pandey two years prior to the incident and the second marriage was performed on 29.04.2004. They have further admitted that deceased has suffered unnatural death on account of burn injuries in District Hospital, Basti on 13.12.2004. They have denied the other part of the prosecution story stating that deceased was scared on account of serious ailment since marriage. In defence Suresh Chandra Pandey DW-1 and Dr. S.K. Mall DW-2 were examined. 8. After hearing the parties counsel the learned trial Court has found that the prosecution has successfully proved the charges for the offences punishable under Sections 498-A, 304-B and Section 4 of Dowry Prohibition Act beyond all reasonable doubt and sentenced each of them as indicated above. In defence Suresh Chandra Pandey DW-1 and Dr. S.K. Mall DW-2 were examined. 8. After hearing the parties counsel the learned trial Court has found that the prosecution has successfully proved the charges for the offences punishable under Sections 498-A, 304-B and Section 4 of Dowry Prohibition Act beyond all reasonable doubt and sentenced each of them as indicated above. Aggrieved the appellants have filed instant appeals. 9. I have heard learned counsel for the parties and perused the original record of the trial Court carefully. 10. Learned counsel for the appellants has vehemently argued that the learned trial Court has erroneously placed reliance on the dying declaration of the deceased recorded by the S.D.M. and did not consider the fact that earlier Dr. S.K. Mall has noted her oral dying declaration on the register of accidental injuries as well as the bed head ticket of the deceased, wherein she has admitted that she has committed suicide. He contended that no dowry was ever demanded by any of the accused-appellants either from the deceased or any of her family members nor she was harassed or tortured on this count. He has further submitted that deceased has committed suicide by setting herself ablaze and she was taken to the hospital by her husband where she told the doctor that she set herself on fire by pouring kerosene. His contention is that the second dying declaration recorded by the S.D.M. in view of the earlier dying declaration of the deceased is not at all reliable as it is result of tutoring and prompting the deceased by her parents. 11. Per contra, learned AGA supporting the impugned judgment and the findings of the learned Additional Sessions Judge has submitted that the accused have fabricated the first endorsement of the doctor which is being levelled as first dying declaration of the deceased because her condition was precarious and she was not in a position to speak. It has been further submitted that once the doctor had sent report for recording of dying declaration of the deceased, then there was no need for him to record her alleged dying declaration that too without taking recourse to police action. 12. Before I proceed to examine the evidence adduced by the parties it would be pertinent to note the statements of the witnesses examined by both the sides. 13. 12. Before I proceed to examine the evidence adduced by the parties it would be pertinent to note the statements of the witnesses examined by both the sides. 13. Surya Narayan Mishra PW-1 is the father of the deceased. He has stated on 20.12.2005 that about a year ago his daughter Anjani died in Basti hospital on account of burn injuries. He had married his daughter about two years ago with Vachaspati Pandey and had given sufficient dowry as per his capacity. After return from her matrimonial home she informed them that her husband Vachaspati Pandey, father-in-law Ram Nivas Pandey, mother-in-law Gulabi Devi and sister-in-law Sangeeta tortured her on account of dowry demand. About 8-9 days prior to the incident his son had gone to meet his sister where the accused persons have demanded Rs. 5,000/- and a she-buffalo and threatened to face the consequences if their demand is not met. On 11.12.2004 accused Smt. Gulabi, Ram Nivas Pandey, Sangeeta poured kerosene upon her and Vachaspati lit fire. He has further stated that this incident was narrated to them and to the Magistrate by his daughter. The inquest was conducted before him and he has proved his signature on the inquest report as Ex. Ka-1. Lastly, he has stated that report of the incident was lodged by his son Krishna Mani Mishra at the police station. 14. The complainant Krishna Mani Mishra PW-2 corroborated the statement of his father (PW-1) and has stated that marriage of his sister Anjani was solemnized with Vachaspati Pandey about three years ago and for the first time when she returned back, she told that her in-laws are demanding Rs. 5,000/- and a she-buffalo and they used to taunt her. About a year ago his sister had died in Basti Hospital due to burn injuries. When they reached the hospital she was alive and the Magistrate was recording her statement. She has told them that on account of not meeting the demand of dowry, accused Vachaspati Pandey, Gulabi Devi, Sangeeta and Ram Nivas Pandey attempted to kill her by setting her ablaze. He has further stated that his sister died on account of burn injuries the other day. The written report of the incident was lodged by him in the police station which has been proved as Ex. Ka-2. 15. Head Constable Ram Laxman Singh PW-3 has deposed that about 13 months ago. He has further stated that his sister died on account of burn injuries the other day. The written report of the incident was lodged by him in the police station which has been proved as Ex. Ka-2. 15. Head Constable Ram Laxman Singh PW-3 has deposed that about 13 months ago. He was posted in P.S. Dumariyaganj as Head Moharrir and on that day on the basis of the written report he has prepared check report as Ex. Ka-3 and entered the case at report No. 18 the same day at 15.10 hours. The copy of the G.D. report has been proved by him as Ex. Ka-4. 16. Dr. Bhavnath Pandey has stated that on 13.12.2004 at 3.30 p.m. he has conducted autopsy on the dead body of Smt. Anjani alongwith Dr. Surya Prakash Chaudhary. Dr. Pandey has proved the contents of the post mortem examination report Ex. Ka-5 which have been noted in para-3 of the judgment above. 17. C.O. Shailendra Rai PW-5 has stated that on 13.12.2004 the investigation of this case was entrusted to him and on that day after receiving the copy of written report, G.D. and medical examination report he interrogated the complainant, visited the place of occurrence, prepared site plan and the memo regarding seizure of ashes. He has proved the other investigatory formalities and the charge-sheet Ex. Ka-6. 18. Ramesh Chandra Srivastava PW-6 is Ahalmad (clerk) of S.D.M. Sadar, Basti. He has stated that he has worked with Sri M.P. Singh, S.D.M. Sadar in the year 2004 and is acquainted to his handwriting and signatures. He has proved the handwriting and signatures of Sri Singh of photo copy of the dying declaration of the deceased. 19. Suresh Chandra Pandey DW-1 is the Chief Pharmacist of District Hospital, Basti. He had brought the injury register of the hospital from 20.09.2004 to 24.12.2004 under the orders of the Court. He has stated that at page 328 of the register the medical examination report of Smt. Anjani w/o Vachaspati dated 12.12.2004 at 8.30 a.m. is entered. She was brought by her husband. He has further stated that this injury report was prepared by Dr. S.K. Mall and has proved the photo copy of the report as Ex. Kha-1. He has stated that at page 328 of the register the medical examination report of Smt. Anjani w/o Vachaspati dated 12.12.2004 at 8.30 a.m. is entered. She was brought by her husband. He has further stated that this injury report was prepared by Dr. S.K. Mall and has proved the photo copy of the report as Ex. Kha-1. This witness has further filed the photo copy of the bed head ticket of the deceased wherein her date of admission on 12.12.2004 at 8.30 a.m. bed No. 19 is written and the date and time of her death 13.12.2004 at 2.10 a.m. is also noted. 20. Dr. S.K. Mall DW-2 has proved the medical examination report of the deceased which was prepared by him on 12.12.2004 at 8.30 a.m. in District Hospital, Basti. The contents of the medical examination report have already been noted in para-3 of the judgment. Dr. Mall has further stated that dying declaration of the deceased could not be recorded up to 2.00 p.m. and at 1.30 p.m. he had visited the ward and found that the condition of the deceased has slightly improved, she was conscious and on his inquiry she told him that she had set herself ablaze by pouring kerosene. He has noted this fact in the injury register and the bed head ticket of the deceased. He has proved the injury report Ex. Kha-1, which was filed by Suresh Chandra Pandey DW-1 in the Court. 21. In the instant case it is not disputed that the deceased has suffered unnatural death in District Hospital, Basti at 2.20 a. m. on 13.12.2004 on account of burn injuries sustained by her in the house of the accused-appellants within seven years of her marriage with accused Vachaspati Pandey. 22. Unnatural death of the young woman in her matrimonial home is a cause of great concern not only to the society but the Courts as well. A married woman may commit suicide by hanging or burning or consuming poison for various reasons. She ties the knot of marriage only to find peace and shelter in safe and sound care of her husband after leaving her parental house. She does not bid adieu to her parents to have harassment and torture at the hands of her husband or relatives for demand of dowry, who are expected to be her caretakers and well wishers. She ties the knot of marriage only to find peace and shelter in safe and sound care of her husband after leaving her parental house. She does not bid adieu to her parents to have harassment and torture at the hands of her husband or relatives for demand of dowry, who are expected to be her caretakers and well wishers. In Hindus marriage is not a contract but a sacred act, recognized by the law and the society for thousands of years. Any departure of such human behaviour has to be taken with a grain of salt. It is not expected from parents or relations of acquaintances that they will falsely rope husband and his relations only to wreck vengeance and punish husband or her in-laws even when the victim dies due to her extra-marital relationship if any or mental frustration or depression etc. on account of other reasons. However, from past few years it is seen that whenever any incident of dowry death takes place, the entire family of groom is roped in without making specific allegation against each accused. The probative value and intention of witnesses has to be taken with a touch of ground reality keeping in view the fact that their beloved known victim was tortured and that’s why the death was propelled. 23. To attract Section 304-B of the Indian Penal Code, the following conditions must be fulfilled: (i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon before her death, the woman must have been subjected to cruelty of harassment by her husband or any relatives of her husband; (iv) such cruelty or harassment must be for, or in connection with demand for dowry. When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the above mentioned ingredients are attracted in view of the special provision, the Court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. If the above mentioned ingredients are attracted in view of the special provision, the Court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side. 24. Section 113-B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under: “113-B. Presumption as to dowry death.— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person has caused the dowry death. In the present case following factual circumstances stand established: (a) the deceased was married to husband accused; (b) the deceased died at the place of her husband within a span of seven years. (c) she died an unnatural death.” Therefore, a presumption automatically may arise under Section 113-B of the Indian Evidence Act. If it is established by the evidence of the prosecution witnesses that the chain is complete suggesting only to the fact that the accused persons perpetrated torture soon before her death over demand of dowry and as such the victim died an unnatural death. 25. In the instant case the evidence on record show that the following facts are not disputed: (I) that the 21-years’ old Anjani deceased was married with accused-appellant Vachaspati Pandey about one and half year prior to the incident; (II) that the deceased sustained 100% burn injuries in her matrimonial home in the night of 11/12.12.2004 and she was admitted by her husband in District Hospital, Basti; (III) that the deceased succumbed to the burn injuries during treatment on 13.12.2004 at 2.20 a.m. in District Hospital, Basti; (IV) that the dying declaration of the deceased was recorded by S.D.M. Sadar, Basti on 12.12.2004 at 2.35 p.m. 26. In the case of Kashmir Kaur and another v. State of Punjab, 2013 CRI LJ 689, the Hon’ble Apex Court has held that— “Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour . The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B IPC. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to the time of her heath and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.” 27. The father and brother of the deceased namely PW-1 and PW-2 have stated that the deceased told them that she was harassed by the accused persons for dowry and they demanded a she-buffalo and Rs. 5,000/- as dowry. PW-1 has further stated that 8-9 days prior to the incident his son had gone to the house of accused persons, where the aforesaid demand was made by them and he was threatened to face dire consequences if it is not fulfilled. This statement of PW-1 could not be shaken by the defence in his cross-examination. He has fairly admitted that at the time of marriage or second marriage (gauna) there was no dowry demand from the side of the accused persons. Krishna Mani Mishra PW-2 (brother of the deceased) has also corroborated the statement of his father (PW-1). According to him when they reached hospital, his sister was alive and the Magistrate was recording her statement, wherein she has stated that due to non fulfillment of the dowry demand the accused persons tried to kill her by setting her ablaze. This witness has also proved his written report Ex. Ka-2. According to him when they reached hospital, his sister was alive and the Magistrate was recording her statement, wherein she has stated that due to non fulfillment of the dowry demand the accused persons tried to kill her by setting her ablaze. This witness has also proved his written report Ex. Ka-2. In cross-examination he has stated that the report was dictated by darogaji and it was scribed by Ram Nath and thereafter he signed it, but considering the nature of the offence, the place of incident and the manner of execution, the above fact does not demolish the prosecution story because the sub-inspector might have helped the scribe to draft the report which is not commonly known to even fully literate person. The facts of the case and narration of incident cannot be known by any other person except the complainant. In the written report it is mentioned that the Ashwani Kumar Pandey (elder brother of Vachaspati Pandey) brought the deceased from her parents’ house on 26.11.2004 on the assurance that nothing would happen with her. About two weeks after she arrived in her matrimonial home, the incident had taken place. Significantly, Ashwani Kumar Pandey has not been arrayed as an accused in the case neither by the complainant nor by the deceased in her dying declaration. This fact clearly shows that no attempt was made by the complainant to falsely rope in all the members of the family of accused-persons. 28. The incident had taken place at the house of accused persons. They have not spoken a single word in their statements under Section 313 Cr. P. C. about the manner in which the deceased sustained 100% burn injuries in their house. None of the family of the complainant was present in the house of the accused persons. It has not been shown by the accused persons as to why no attempt was made by any of their family member to save her. It cannot be believed that at the time of alleged incident of self immolation, no one was present in the house at the time of alleged incident. Since the incident has taken place in the house of the accused persons, so heavy burden lay on them to show as to how the deceased had sustained 100% burn injuries. The dead body of the deceased contained smell of kerosene as noted by Dr. Since the incident has taken place in the house of the accused persons, so heavy burden lay on them to show as to how the deceased had sustained 100% burn injuries. The dead body of the deceased contained smell of kerosene as noted by Dr. Mall DW-2 in his medico legal report of the deceased. The accused persons cannot get away with their tight lips or keeping mum about the incident. They have to explain the circumstances in which the deceased had suffered burn injuries in their house. No suggestion had been given either to the father of the deceased PW-1 or brother PW-2, that she has committed suicide on account of her ailment. There was no access of any body else in the house of the accused appellants, so the question of there being any other eye-witness does not arise. Section 106 Evidence Act requires the accused persons to detail the facts which are in their special knowledge. I am conscious of the fact that the provisions of Section 106 of the Act does not relieve the initial burden of the prosecution burden to prove its case beyond all reasonable doubt. In this connection we may usefully refer to the observations of the Hon’ble Apex Court given in the case of Tulshiram Sahadu Suiryawanshi and another v. State of Maharashtra, (2013) 1 SCC (Cri) 199, wherein it was held that- “A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process, the Courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. In that process, the Courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the Court to draw a different inference.” 29. None of the accused-appellants could muster courage to state in his/her statement under Section 313 Cr. P. C. that the deceased in order to commit suicide has poured kerosene on herself and thereafter lit fire in their house. The have in unison stated, to quote their own words - Þvatuh dkQh chekj jgrh Fkh] ftlls og ?kcM+krh o ?kqVu eglwl djrh FkhAÞ Although the father of the deceased in his deposition has denied that his daughter Anjani was suffering from some ailment, but his son (PW-2) has admitted this fact in his cross-examination. The defence has filed certain alleged medical prescriptions of the deceased, which show that after ultrasound examination, the doctors were suspecting Koch’s abdomen of the deceased. She was quite young and having medical treatment, so there was no possibility of committing suicide by the deceased nor any such suggestion had been given by the defence to the father and brother of the deceased, nor any other witness had been examined by them in defence to contend that on account of chronic ailment the deceased developed tendency to commit suicide. 30. The contention of the defence about the deceased having committed suicide is apparently based on an endorsement of Dr. Mall DW-2 in injury register and bed head ticket of the deceased, which is being labelled as the 1st dying declaration of the deceased. In order to prove this alleged declaration, the defence has examined Dr. S. K. Mall DW-2 who has initially medically examined the deceased at about 8.30 a.m. on 12.12.2004 when she was brought by her husband Vachaspati Pandey in burnt condition to the district hospital. The injuries found by Dr. In order to prove this alleged declaration, the defence has examined Dr. S. K. Mall DW-2 who has initially medically examined the deceased at about 8.30 a.m. on 12.12.2004 when she was brought by her husband Vachaspati Pandey in burnt condition to the district hospital. The injuries found by Dr. Mall on the person of Smt. Anjani have been reproduced earlier in para-3 (page-3) of the judgment. In his examination-in-chief Dr. Mall has given a very improbable and funny explanation/reason for recording the statement of the injured (Smt. Anjani). To quote his own words : Þejht dks fpfdRlky; esa HkrhZ dj fy;k x;k FkkA iqfyl dks lwpuk Hksth x;h Fkh vkSj eftLVsªV dks c;ku ysus ds fy, vkxzg fd;k x;k FkkA ejht dk c;ku ml fnu 2 cts nksigj rd eftLVsªV dk ugha gks ik;k FkkA 1]1@2 cts nksigj esa ejht dks ns[kus eSa okMZ esa x;k FkkA ml le; nok pyus ds ckn ejht dh fLFkfr dqN lq/kj x;h Fkh vkSj iwNus ij mlus [kqn crk;k fd eSaus [kqn ij vius ls feV~Vh dk rsy Mkydj vkx yxk fy;k FkkAÞ When Dr. Mall has already informed the authorities for recording dying declaration of the deceased, then how could he observe at 1.30 p. m. that the dying declaration of the deceased was not recorded up to 2.00 p.m. There was no occasion for him to enquire about the manner of incident from the deceased. If at all he proceeded to record her statement, then he should have observed all the legal and necessary formalities there for. He should have taken down the statement in question-answer form and should have also quenched his anxiety as to why she had set herself ablaze. The learned trial Court has dealt with this aspect of the matter and has rightly concluded that the conduct of Dr. Mall in recording the alleged 1st dying declaration of the deceased was suspicious. Yet, in this regard, there is another important circumstance which could not be noticed by the learned trial Court in the impugned judgment. Dr. Mall has noted the alleged statement of the victim in her bed head ticket as also in the copy of her injury report in the relevant register. Yet, in this regard, there is another important circumstance which could not be noticed by the learned trial Court in the impugned judgment. Dr. Mall has noted the alleged statement of the victim in her bed head ticket as also in the copy of her injury report in the relevant register. The relevant entry on the bed head ticket, if perused from the naked eye would show that it has been subsequently introduced, as the the line gap in it, is not normal rather it has been narrowed down considerably to make it part of the original entry. There is no thumb-impression of the deceased nor it has been witnessed by any independent witness and it is not in the language of the deceased. Further there was no occasion for this witness to record this entry as he has already sent a requisition for recording the dying declaration of the injured to the concerned authorities and he could not have for seen the event which is likely to take place after his duty hours. Thus, these facts add to the suspicious circumstances listed by the learned trial Court with regard to the authenticity of the alleged 1st dying declaration of the deceased. 31. The other dying declaration is a regular one, which has been recorded by the SDM Sadar on the requisition sent by DW-1. It is relevant to note that the original dying declaration could not be proved by the prosecution through its maker, the SDM, because the original dying declaration was summoned by this Court for disposal of bail application of accused Ram Niwas and it was in fact sent after keeping its photo-copy on record. The trial Court has written several letters for summoning the same from this Court, but all the letters remained unattended by the Registry of this Court. This aspect of the administration of this Court cannot be appreciated at all and shows the callous attitude of the officers manning the Registry with regard to pending cases before the subordinate Courts. However, it has to be borne in mind that no one should be prejudiced by the act of the Court. This rule is found in the Latin maxim. . . However, it has to be borne in mind that no one should be prejudiced by the act of the Court. This rule is found in the Latin maxim. . . “actus curiae neminem gravabit; i.e. what the Court does ought not to prejudice a litigant.” Thus, if the original dying declaration of the deceased could not be brought on record and proved by examining its author, it has no relevance when the other facts and circumstances of the case, do clearly prove that such a dying declaration of the deceased was recorded by the SDM, Sadar on 12.12.2004 in the District Hospital, Basti. After requisition of the High Court, the Presiding Officer has directed to keep photo-copy of the dying declaration on record before sending the original to this Court. Through secondary evidence of PW-6 the prosecution has proved the recording of the dying declaration of the deceased at about 2.35 p.m. on 12.12.2004, wherein she has implicated all the accused appellants in her dowry death. Before recording dying declaration the SDM has obtained the endorsement of the attending doctor about her mental status and capability to make a statement on the bed head ticket of the deceased and it has been proved by Dr. Mall DW-2 in his cross-examination. The factum of recording dying declaration in the hospital by the SDM also finds place in the bed head ticket of the deceased and it has also been proved by Dr. Mall during his cross-examination. 32. The dying declaration of the deceased recorded by S.D.M., Sadar, Basti on 13.12.2004 at 2.35 a.m., which has been proved by Ex. The factum of recording dying declaration in the hospital by the SDM also finds place in the bed head ticket of the deceased and it has also been proved by Dr. Mall during his cross-examination. 32. The dying declaration of the deceased recorded by S.D.M., Sadar, Basti on 13.12.2004 at 2.35 a.m., which has been proved by Ex. Ka-9 by Ramesh Chandra Srivastava PW-6 is reproduced as under: ÞMkbax fMDysjs'ku ¼Jherh vatuh iRuh okpLifr½ eSa Jherh vatuh iRuh okpLifr ikaMs; mez yxHkx 21 o"kZ fuoklh xzke elkSck [kkl Fkkuk Mqefj;kxat ftyk fl)kFkZuxj dh gwWA esjh 'kknh okpLifr ikaMs; iq= jkefuokl ikaMs; fuoklh xzke elkSck [kkl Fkkuk Mqefj;kxat ftyk fl)kFkZuxj ds lkFk Ms< o”kZ iwoZ gqbZ FkhA esjk ek;dk xzke&dus/kw cqtqxZ Fkkuk lksugk tuin cLrh gSA ‘kknh ds ckn dqN fnu rd esjk vius ifr ds lkFk lEcU/k lkekU; Fkk] fdUrq mlds ckn esjs llqjky okys de ngst ds dkj.k eq>s lrkus yxsA eq>s dgus yxs fd eSa Bhd ugha gwWA fnukWd 11&12 fnlEcj 2004 dh jkr esa yxHkx 2 cts esjh lkl] llqj] uun laxhrk rFkk ifr eq>ls >xM+k djrs&djrs esjs Åij feV~Vh dk rsy Mky fn;k rFkk ekfpl ls esjs ifr us vkx yxk nh] ftlls esjs ‘kjhj esa vkx yx x;h vkSj eSa gaw&gaw dj fpYykus yxhA tyrs&tyrs eSa uhps /kjrh ij fxj x;hA blds ckn eq>s M~;kss cLrh ds ljdkjh vLirky esa ys vk;sA c;ku lqudj rLnhd fd;kA fu0 va0 ¼nkfguk½ fu0 va0 ¼ckW;k½ Jherh vatuh ifRu Jherh vatuh ifRu okpLifr ikaMs; okpLifr ikaMs; mDr c;ku esjs }kjk Loa; vfHkfyf[kr fd;k x;kA g0 vifBr 12&12&2004 ,l0 Mh0 ,e0 lnj cLrh 2%35 ih ,e layXud& dqy pkj iUukÞ 33. In the instant case, the dying declaration of the deceased had been corroborated by the testimony of PW-1 and PW-2, however, the rule requiring corroboration is merely a rule of prudence. The Apex Court in several judgments has laid down principles governing dying declaration, which have been summed up in Paniben v. State of Gujarat, [ (1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817 ] (SCC pp. 480-81, paras 18-19): (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 480-81, paras 18-19): (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) (iii) 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 had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.) (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.) (xi) 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. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)” 34. (See State of U.P. v. Madan Mohan.) (xi) 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. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)” 34. In the case of Lakhan v. State of M. P. (Crl. Appeal No. 2297 of 2009) decided on 9.8.2010, the Apex Court after considering multiple dying declarations of the deceased very illuminatingly has observed as under: “10. In Munnawar and others v. State of Uttar Pradesh and others, (2010) 5 SCC 451 , this Court held that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded. 11. A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim, however, circumstances showing anything to the contrary should not be there in the facts of the case. [vide Ravi Chander and others v. State of Punjab, (1998) 9 SCC 303 ; Harjit Kaur v. State of Punjab, (1999) 6 SCC 545 ; Koli Chunilal Savji and another v. State of Gujarat, (1999) 9 SCC 562 ; and Vikas and others v. State of Maharashtra, (2008) 2 SCC 516 .] 12. In Balak Ram v. State of U.P., AIR 1974 SC 2165 , the question arose as to whether a dying declaration recorded by a higher officer can be discarded in case of multiple dying declarations. The Court held as under : “The circumstances surrounding the dying declaration, though uninspiring, are not strong enough to justify the view that officers as high in the hierarchy as the Sub-Divisional Magistrate, the Civil Surgeon and the District Magistrate hatched a conspiracy to bring a false document into existence. The Civil services have no platform to controvert allegations, howsoever grave and unfounded. The Civil services have no platform to controvert allegations, howsoever grave and unfounded. It is therefore, necessary that charges calculated to impair their career and character ought not to be accepted except on the clearest proof. We are not prepared to hold that the dying declaration is a fabrication.” 13. In Sayarabano @ Sultanabegum v. State of Maharashtra, (2007) 12 SCC 562 , two Dying Declarations had been recorded. As per the first declaration, the deceased had met with an accident. She was hit by the kerosene lamp which fell on her body and caught fire. While recording the second declaration, the Judicial Magistrate asked her why she was changing her statement. The deceased replied that her Mother-in-Law had told her not to give any statement against the family members of her in-laws and that was the reason, why she had not involved any person in the earlier statement. But, in fact, it was her Mother-in-Law who threw the kerosene lamp on her and thus, she was burnt. She also stated that her Mother-in-Law was harassing her. In such a situation, this Court held that the second dying declaration was true and inspired confidence. Ill treatment of the decreased was clearly established and completely proved on the basis of the evidence of other witnesses. 14. In case, there are inconsistent dying declarations, the Court must rely upon any other evidence, if available, as it is not safe to act only on inconsistent dying declarations and convict the accused. [Vide Lella Srinivasa Rao v. State of A.P., (2004) 9 SCC 713 ]. 15. In Sher Singh and another v. State of Punjab, AIR 2008 SC 1426 , a case of bride burning, three dying declarations had been recorded. In the first dying declaration, the decreased had denied the role of the accused persons. In second dying declaration deceased attributed a role to the accused but the said declaration did not contain the Certificate of the Doctor that the deceased was in a fit state of mind to make a declaration, however, the Magistrate, who recorded the declaration, certified that the deceased was in a conscious state of mind and was in a position to make the statement to him. The third dying declaration was recorded by a police officer after the Doctor certified that she was in a fit state of mind to give the statement. The third dying declaration was recorded by a police officer after the Doctor certified that she was in a fit state of mind to give the statement. This Court held that the conviction could be based on the third dying declaration as it was consistent with the second dying declaration and the oral dying declaration made to her uncle, though with some inconsistencies. First declaration was made immediately after she was admitted in the hospital and was under threat and duress by her Mother-in-Law that she would be admitted in hospital only if she would give a statement in favour of the accused persons. 16. In Paras Yadav and others v. State of Bihar, (1999) 2 SCC 126 , this Court held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement. 17. In Chairman & Managing Director, V.S.P. and others v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 468 , this Court, placing reliance upon the earlier Judgment in Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, (1993) 2 SCC 684 , held that it is not the plurality of dying declarations but the reality thereto that aids weight to the prosecution’s case. If a dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. If there is more than one dying declaration, they should be consistent. In case of inconsistencies between two or more dying declarations made by the deceased, the Court has to examine the nature of inconsistencies namely, whether they are material or not and in such a situation, the Court has to examine the multiple dying declarations in the light of the various surrounding facts and circumstances. 18. In Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671 , this Court considered the case having two dying declarations, the first recorded by a Magistrate, wherein it was clearly stated that the deceased had tried to set herself ablaze by pouring kerosene on herself. 18. In Heeralal v. State of Madhya Pradesh, (2009) 12 SCC 671 , this Court considered the case having two dying declarations, the first recorded by a Magistrate, wherein it was clearly stated that the deceased had tried to set herself ablaze by pouring kerosene on herself. However, the subsequent declaration was recorded by another Magistrate and a contrary statement was made. This Court set aside the conviction after appreciating the evidence and reaching the conclusion that the Courts below came to abrupt conclusions on the purported possibility that the relatives of the accused might have compelled the deceased to give a false dying declaration. No material had been brought on record to justify such a conclusion. 19. In State of Andhra Pradesh v. P. Khaja Hussain, (2009) 15 SCC 120 , this Court set aside the conviction as there was a variation between the two dying declarations about the manner in which the deceased was set on fire and for the reason that there was no other evidence to connect the accused with the crime. 20. In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.” 35. Complainant Krishna Mani Mishra PW-2 had spoken about the dying declaration of the deceased, but in cross-examination no suggestion whatsoever had been given to this witness about prompting or tutoring the deceased before her statement was recorded by the SDM. Complainant Krishna Mani Mishra PW-2 had spoken about the dying declaration of the deceased, but in cross-examination no suggestion whatsoever had been given to this witness about prompting or tutoring the deceased before her statement was recorded by the SDM. Thus, in view of the above legal principles about the dying declaration and the corroborative evidence available on record dying declaration of the deceased recorded by the SDM in the hospital on 13.12.2004 at 2.35 p.m. is wholly reliable. The learned trial Court has not committed any mistake in placing reliance thereon. Hence, it is proved that the accused persons have demanded a she-buffalo and Rs. 5,000/- as dowry from the deceased and her family members and she was subjected to harassment and cruelty soon before her death for non-fulfillment of their demand and there is no error in the findings recorded by the trial Court. 36. Learned counsel for the appellants has argued that accused-appellant Vachaspati Pandey has been released from jail after serving out the sentence awarded to him by the trial Court in the case and accused Ram Niwas and Gulabi Devi have remained in jail for 47 and 49-months respectively in connection with this case, they both are elderly people, so they may be sentenced to period already undergone by them in the jail. I have seriously pondered on this argument, but unable to accept it because under Section 304-B IPC, minimum sentence of seven years had been provided. There are no special reasons to reduce the sentence below the minimum prescribed by the Legislature. However, considering the entire facts and circumstances of the case, I feel that the ends of justice would be met if the sentence under Section 304-B IPC awarded to accused Ram Niwas and Gulabi Devi is reduced to seven years’ rigorous imprisonment instead of ten years as directed by the Court below. 37. In view of what has been said and done above lead us to this irresistible conclusion that the prosecution has successfully proved its case beyond all reasonable doubt against the accused appellants for demand of dowry, harassment of the deceased on this score and causing her dowry death. However, as stated above, sentence awarded to accused-appellant Ram Niwas and Gulabi Devi under Section 304-B IPC is reduced to seven years’ rigorous imprisonment. However, as stated above, sentence awarded to accused-appellant Ram Niwas and Gulabi Devi under Section 304-B IPC is reduced to seven years’ rigorous imprisonment. The sentence on other counts namely under Section 498-A IPC and under Section 4 Dowry Prohibition Act are confirmed. Thus, criminal appeal No. 4481 of 2008 filed by accused Vachaspati Pandey is dismissed and criminal appeal No. 3735 of 2008 of Ram Niwas and Gulabi Devi is partly allowed to the extent of reduction of sentence awarded to them under Section 304-B IPC, as indicated above. They are on bail. The trial Court would immediately take steps to take them into custody to serve out the remaining part of their sentence as modified above. 38. The release of accused Vachaspati Pandey after serving out the sentence awarded by the trial Court is not verified and the Court has simply proceeded on the statement made by his learned Counsel at the Bar during the course of arguments. His appeal has been dismissed in toto, therefore, the trial Court would objectively verify and satisfy itself about the above fact i. e. release of accused Vachaspati Pandey after serving out the sentence after issuing notice to him and on perusal of jail reports etc. filed by him. 39. Let a copy of the judgment be immediately sent to the Court concerned for ensuring compliance, which should be reported to the Court within 2-months.