JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) This is an appeal filed by the appellants against the judgment and order dated 14.12.2017 passed by the learned First Additional District & Sessions Judge, Roorkee, District Haridwar in Session Trial No. 37 of 2015. Both appellant no. 1 and appellant no. 2 are son and mother respectively. Appellant no. 1 has been convicted under Section 109 read with Section 302, 498A of IPC and Section 3/4 of the Dowry Prohibition Act, 1961 and has been sentenced for life imprisonment under Section 109 read with Section 302 IPC, two years rigorous imprisonment under Section 498A of IPC and two years rigorous imprisonment under Section 3/4 of the Dowry Prohibition Act. Appellant no. 2 has been convicted under Sections 302, 323, 498A of IPC and Section 3/4 of the Dowry Prohibition Act, 1961 and has been sentenced to undergo life imprisonment under Section 302 of IPC, one year rigorous imprisonment under Section 323 IPC, two years rigorous imprisonment under Section 498A of IPC and two years rigorous imprisonment under Section 3/4 of the Dowry Prohibition Act. All the sentences were directed to be run concurrently. 2. The incident is of 16.10.2014 at 02:30 PM when as per the prosecution both the present appellants had poured kerosene oil on the body of the deceased and set her on fire, thereby causing 50% burn injuries. The deceased was initially brought to Bhagwanpur Hospital, Haridwar and then referred to Himalayan Hospital, at Dehradun and finally to Safdarjung Hospital at New Delhi, where she died on 26.10.2014 i.e. after 9 days of the incident. A first information report was lodged on18.10.2014 at about 01:25 PM at Police Station Bhagwanpur, Roorkee, District Haridwar under Sections 498A/323/307 and Section 3/4 of the Dowry Prohibition Act. During the course of investigation Section 307 of IPC was converted to Section 302 of IPC. 3. Though the first information report was lodged against the husband, mother-in-law and sister-in-law of the deceased, but after the investigation the police has filed charge-sheet only against the husband and the mother-in-law of the deceased. Thereafter, the matter was committed to the sessions and the charges were framed by the learned Sessions Judge, Haridwar on 02.02.2014 against the accused/appellants under Sections 498A/323/304B/302 of IPC and under Section 3/4 of the Dowry of Prohibition Act. 4. Thereafter, the matter was committed to the sessions and the charges were framed by the learned Sessions Judge, Haridwar on 02.02.2014 against the accused/appellants under Sections 498A/323/304B/302 of IPC and under Section 3/4 of the Dowry of Prohibition Act. 4. In order to establish its case, the prosecution has examined as many as 10 witnesses. Thereafter both the accused were examined under Section 313 of CrPC and subsequently convicted by the trial court vide judgment and order dated 14.12.2017. 5. The most important piece of evidence which was presented by the prosecution in this case was the dying declaration of the deceased which was recorded at Safdarjung Hospital, New Delhi on 18.10.2014 before Tehsildar/Ex. Magistrate (Vasant Vihar), New Delhi. In her statement, the deceased states that she stays at Mangalore Kasba, Tehsil Roorkee, Mohalla Patan Pura, Haridwar. She is an illiterate woman and resides with her husband and mother-in-law. She was married five months prior to the incident to Vakeel who works as a contractor. Ever since their marriage, she was being harassed, tortured and taunted by her mother-in-law and sister-in-law for getting a meager dowry. They were demanding a car and on the date of the incident, her mother-in-law on a small pretext first gave her a beating and later torched her after dousing kerosene oil on top of her. When she raised an alarm, her neighbours rushed for her rescue. She was lifted and admitted to a hospital. She then says that whenever her husband returns from work, he beats her and instigates his mother to kill his bride. Finally her mother-in-law did make an attempt to kill his bride i.e. her. For this reason, the deceased blames her mother-in-law as well as her husband, and wants that proceedings be drawn against them. 6. In this dying declaration we find that the main charge of pouring kerosene oil and setting her on fire or in other words the actual actus reus is assigned to the mother-in-law alone, though towards the end of her statement, the deceased does blame her husband as well for all this. 7. 6. In this dying declaration we find that the main charge of pouring kerosene oil and setting her on fire or in other words the actual actus reus is assigned to the mother-in-law alone, though towards the end of her statement, the deceased does blame her husband as well for all this. 7. The learned counsel for the appellants has also drawn the attention of this Court to a reference made inthe case diary of another dying declaration of the deceased, which she had given before Naib Tehsildar, Dehradun on 16.10.2014, where she had only blamed her mother-in-law and said that on that day her husband was in District Uttarkashi. This dying declaration is not a part of record, either before this Court or the trial court. 8. All the same, there is an eyewitness account in the form of PW4 Saeed. Though Saeed is a resident of village “Binarsi", which is a different village, but he has a dairy at “Tajjupur", where the incident is said to have taken place. He saw the appellant no. 2 Smt. Irfana i.e. the mother-in-law of the deceased catching her daughter-in-law by hair and inflicting blows on the hapless woman. He thought that to be a usual mother-in-law and daughter-in-law fight, but then immediately thereafter saw appellant no. 2 Smt. Irfana i.e. the mother-in-law, pouring kerosene oil on top of her daughter-in-law, and then she set her on fire. He along with other persons who were standing there tried to rescue Sairaj by extinguish the fire but by the time she was already burnt. Immediately 108 Ambulance was called and she was admitted to Bhagwanpur Hospital. In his cross+-examination, this witness admits that the deceased is the daughter of his brother-in-law and also admits that regarding the demand of dowry at least two to three times “panchayats" were called at “Tajjupur" to settle the matter. His shop is at about a distance of 100 meters from the house of the deceased. This witness appears to be a natural witness. Apart from this witness, there are other incriminating witnesses as well in form of PW1 Sahjaan, PW2 Ali Hasan and PW3 Akbar, though they are not the eyewitnesses. 9. His shop is at about a distance of 100 meters from the house of the deceased. This witness appears to be a natural witness. Apart from this witness, there are other incriminating witnesses as well in form of PW1 Sahjaan, PW2 Ali Hasan and PW3 Akbar, though they are not the eyewitnesses. 9. PW1 Sahjaan is the brother of the deceased, PW2 Ali Hasan is the father of the deceased and PW 3 Akbar is the uncle of the deceased who are consistent in their statements made before the court and have made a common accusation against the appellants as well as sister-in-law of the deceased for demand of dowry. They had also confessed that while the injured Sairaj was in the hospital, the deceased had told them that in setting her to fire, both the mother and son were involved. 10. PW 5 Khursheed Alam is the scriber of the FIR and is a formal witness. 11. PW6 Dr. Ashish Kumar is the doctor who conducted the autopsy on the body of the deceased at Safdarjung Hospital at New Delhi. 12. We have perused the statement of the doctor which corroborates with the postmortem report. The doctor records his opinion that there was hypostasis [A state of diminishing blood circulation in a dependent part of the body or organ] on the lower part of the body of the deceased. The burn injuries were on her face, neck, chest, tummy as well as on her back. Her hands and fingers were also having burn injuries. On her external examination, it was found that both her lungs were congested. 13. The postmortem of the body of the deceased was done at the Department of Forensic Medicine & Toxicology Vardhman Mahavir Medical College & Safdarjung Hospital, New Delhi. Brief History as per the inquest paper reads as under:- “BRIEF HISTORY AS PER INQUEST PAPERS: Alleged history of sustaining burn on 16/10/2014 at 03:00 pm, vide inquest paper number four (MLC, Safdarjung Hospital dated 18/10/2014 at 06:30 am). The patient was admitted in Safdarjung hospital on 18/10/2014 at 06:30 am and expired during the course of treatment on 26/10/2014 at 07:45 am. “EXTERNAL GENERAL APPEARANCE Dead body of an adult female wrapped in one multicoloured sheet and surgical bandage is present over chest, abdomen, upper and lower back, bilateral upper limbs and bilateral lower limbs up to the level of knee joint. “EXTERNAL GENERAL APPEARANCE Dead body of an adult female wrapped in one multicoloured sheet and surgical bandage is present over chest, abdomen, upper and lower back, bilateral upper limbs and bilateral lower limbs up to the level of knee joint. Bluish ink stain present over tip of ventral surface of right thumb. Bilateral lower limbs are swollen. Eyes closed, mouth open, frenulum intact. Length: 148 cm Cornea: Opaque Conjunctiva: NAD Natural orifices: NAD. POST MORTEM CHANGES Hypostasis: Present over unburnt area over back of body and is fixed. Rigor Mortis: Present in passing off stage all over the body. Decomposition Changes: NIL" 14. The external ante-mortem injuries in the postmortem report are as follows:- “EXTERNAL ANTEMORTEM INJURIES: Ante-mortem epidermal toedermal deep flame burns present over part of face, neck, chest, abdomen, upper back, ventral surface of bilateral upper limbs including palms, dorsal surface of right upper limb including hand, part of upper and lower back, part of anterior surface of bilateral lower limbs up to knee joint. The burn surface is covered with greenish yellow foul smelling pus and slough. Granulation tissue is present at the margins of the burn surface. Singeing of hair is present at places. Burnt area is estimated to be approximately fifty per cent of total body surface area." 15. As per the postmortem report, the lungs were congested and edematous pinkish froathy fluid is seen exuding on cut section of the lungs. Consolidation present in lower lobes of both lungs. The time since death is about one and a half day. As per the opinion of the doctor, the cause of death is “septecaemic shock as a result of infected ante-mortem flame burn involving about fifty percent of total body surface area". 16. PW7 is the Tehsildar before whom the dying declaration was given by the deceased. This witness states that he had received the information from the concerned Police Chowki that Smt. Sairaj has been admitted in Safdarjung Hospital and had burn injuries on her body and her statement be recorded. He went to the hospital and after taking the permission from the doctor, he recorded the statement of the deceased on 18.10.2014. 17. PW8 Manoj Sharma and PW9 G.B. Pandey are the Investigating Officers who had done the investigation in this case at different stages. These witnesses have corroborated the story of the prosecution. 18. He went to the hospital and after taking the permission from the doctor, he recorded the statement of the deceased on 18.10.2014. 17. PW8 Manoj Sharma and PW9 G.B. Pandey are the Investigating Officers who had done the investigation in this case at different stages. These witnesses have corroborated the story of the prosecution. 18. PW10 constable Dhanna Das is a formal witness who wrote the FIR. 19. Having heard the learned counsel for the appellants as well as the learned State Counsel, we are of the considered view that in this case following charges are established beyond a reasonable doubt both against the mother-in-law as well as the husband of the deceased, who are the appellants before us. These are the charges relating to Section 498A as well as Section 3/4 of the Dowry Prohibition Act. We say this as PW1, PW2 and PW3 have been consistent in their statements given before the court as to the demand of dowry. There is also a reference of “panchayats" which were called in the matter as there was a demand of dowry. Most importantly this fact is established in the dying declaration of the deceased, even though the deceased primarily makes the mother-in-law as an accused in the matter, but there is also PW4 who says that there was a demand of dowry and the fact that panchayats were also called in the matter. 20. Regarding appellant no. 2 who is the mother-in-law, from the evidence it is absolutely clear that not only there is an eyewitness account in form of PW4, but most importantly in the dying declaration given by the deceased, the entire accusation of the alleged crime, which is the act of throwing kerosene oil, is on appellant no. 2. It is she who had poured kerosene oil and lit fire. There is no direct allegation either of pouring of oil or lighting fire against appellant no. 1 Vakeel, even as per the dying declaration of the deceased. The sole eyewitness Saeed (PW4), who is a natural witness has also clearly said that it was only the mother-in-law who did this act. Appellant no. 1 Vakeel was not even present at the relevant time. 21. On the strength of this evidence, we uphold the conviction as well as sentence against appellant no. 2 on all counts, including Section 302 of IPC. 22. Regarding appellant no. Appellant no. 1 Vakeel was not even present at the relevant time. 21. On the strength of this evidence, we uphold the conviction as well as sentence against appellant no. 2 on all counts, including Section 302 of IPC. 22. Regarding appellant no. 1 Vakeel, on the basis of the same evidence, we do not think that this evidence is conclusive evidence against him for conviction under Section 302 read with Section 109 of IPC, as in all possibilities he was not present on the spot. The prosecution has not been able to prove its case against appellant no. 1 Vakeel, on this aspect, beyond a reasonable doubt. Consequently the appeal of appellant no. 1 Vakeel is partly allowed. We acquit the appellant no. 1 Vakeel from the charges under Section 302 read with Section 109 IPC. 23. Appellant no. 1 Vakeel was sentenced for two years of rigorous imprisonment under Section 498A of IPC as well as under Section 3/4 of the Dowry Prohibition Act, 1961. He was on bail during trial but since the date of sentence i.e. 14.12.2017 he is in jail. In other words, he has already undergone more than two years of imprisonment. Consequently, let appellant no. 1 be set free, unless wanted in any other case. 24. Let a copy of this judgment along with the lower court record be sent to the concerned trial court for onward compliance.