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2022 DIGILAW 427 (JK)

State of Jammu and kashmir v. Kali Dass

2022-08-31

MOHAN LAL, RAJNESH OSWAL

body2022
JUDGMENT : Mohan Lal, J.- Appellant/State has commenced instant Criminal Acquittal Appeal under Section 417 Cr.P.C against the judgment dated 18.03.2011 rendered by the court of learned Principal Sessions Judge Samba (for short ‘the Trial Court’) in case titled “State vs Kali Dass & Anr.” in File No. 9/Sessions, arising out of FIR No. 84/2002 registered with Police Station Hiranagar (District Kathua) for the commission of offences punishable under Sections 498-A/302/34 RPC. 2. Aggrieved of and dissatisfied with the impugned judgment and order, appellant/State has assailed it’s legality, propriety and correctness and has sought it’s setting aside/quashment on the following grounds:- (i) that the judgment is against the facts and law, the trial court while appreciating the evidence has ignored the important aspects and reached to the conclusion which are contrary to the weight of evidence, the factum of cruelty and harassment to the deceased for not bringing sufficient dowry and the regular demands for materials such as Gold Chain are duly proved, deceased Anita Devi died in the circumstances where only respondents were present; (ii) that the dying declaration of deceased, disclosure statement of accused/respondents and recovery of kerosene oil bottle and match box conclusively prove the involvement of the accused/respondents in causing the death of deceased Anita Devi. 3. Sh. Ravinder Gupta, learned AAG, appearing on behalf of the appellant/State, has vehemently articulated arguments that in view of the facts and circumstances of the case and the evidence available on record, the prosecution has proved the guilt of accused/respondents beyond hilt, however the trial court has committed a grave error in acquitting the respondents/accused for commission of offences of murder and cruelty under Sections 498-A/302 RPC. It is argued, that the trial Court ought to have relied upon the oral as well as documentary evidence, which was led by the prosecution, and such evidence was cogent, credible and trustworthy against the respondents/accused, but reasons assigned by the trial Court while appreciating of evidence do not inspire confidence, thereby, the trial Court has grossly erred in not relying upon oral as well as documentary evidence in it’s right perspective which could have weighed the trial court to record finding of conviction against respondents/accused. 4. Sh. 4. Sh. Roop Lal, learned counsel appearing on behalf of the respondents/accused while supporting the impugned judgment of the trial Court, has strenuously argued, that the trial Court has correctly appreciated the evidence on record and has rightly come to the conclusion that the offences of cruelty and murder under Sections 498-A/302 RPC have not been convincingly proved against the respondents/accused by the prosecution. It is vehemently argued, that the judgment impugned, acquitting respondents/accused does not suffer from any perversity, impropriety or illegality and the same does not call for any interference by the appellate Court, prayer has been made for dismissal of the appeal. 5. We have heard Sh. Ravinder Gupta, learned AAG for appellant/state & Sh. Roop Lal, learned counsel appearing on behalf of the respondents/accused in depth, perused the impugned judgment/record meticulously and have thoroughly scanned the evidence led by the prosecution. 6. Shorn of un-necessary details, the background facts of the prosecution case germane to the filing of the chargesheet before the trial court and instant acquittal appeal before this court, lie in a very narrow compass, and for the sake of brevity are unfolded as under:- “that deceased Anita Devi, who was married to accused Kali Dass ten years before her death, died on 22.06.2002 due to the burn injuries. Her father alongwith Manga Ram lodged an oral report with regard to harassment meted to her by accused Kali Dass for having brought insufficient dowry. He informed the police that accused Kali Dass and his family had been taunting the deceased for bringing insufficient dowry, though he had given sufficient dowry as per his capacity. He even got her a job as a teacher in a private school. He alleged that two months before the death of the deceased, the deceased and accused Kali Dass come to attend the marriage of his son, namely Radhey Sham. Accused Kali Dass refused to join the barat as he demanded a golden chain, which he could not give to him and he left without joining the barat. That on 27.04.2002, his son Radhey Shyam and Rahul S/o Bhagmal went to drop his daughter Anita to her matrimonial home at Hiranagar. Accused Kali Dass in their presence, beat the deceased and took out a bottle of kerosene oil to burn her. His son Radhey Shyam prevailed on the accused Kali Dass, not to burn her. That on 27.04.2002, his son Radhey Shyam and Rahul S/o Bhagmal went to drop his daughter Anita to her matrimonial home at Hiranagar. Accused Kali Dass in their presence, beat the deceased and took out a bottle of kerosene oil to burn her. His son Radhey Shyam prevailed on the accused Kali Dass, not to burn her. That on 22.06.2002 at 8.30, accused Kali Dass and his brother Narayan Dutt poured Kerosene oil on the deceased, as she had not met their demand for more dowry and burnt her. Thereafter they took her to hospital and deceased died at 4pm on that day itself”. 7. After completion of investigation, charge-sheet was produced in the Court of Munsiff JMIC Hiranagar, who committed the said challan to the Court of learned Principal Sessions Judge Kathua on 16.08.2002. Charges were framed against the respondents/accused by the trial Court on 14.09.2002 for the commission of offences under sections 498-A/302/34 RPC. The contents of the charges were read over and explained to the accused who pleaded not guilty to the charges and claimed trial. In a bid to prove it’s case against respondents/accused, the prosecution out of 13 witnesses listed in the charge-sheet has examined only 10 witnesses namely, PW-1 Manga Ram (uncle of deceased), PW-2 Darbari Lal (f/o deceased), PW-3 Hira Lal (uncle of deceased), PW-4 Radhey Shyam (b/o deceased), PW-5 Bhagmal (uncle of deceased), PW-7 Rahul (nephew of deceased), PW-8 Dr. Karam Vir Singh (Medical Officer Hospital Samba), PW-9 Om Parkash No. 596/K (witness to supurdnama of seal), PW-10 Dr. Sanjay Bhat, (MO, witness to post-mortem of deceased) and PW-11 Rakesh Kumar-photographer (witness who lifted the photographs of the scene of crime). Be it noted, that three witnesses of prosecution namely, PW-6 Koushalya Devi (m/o deceased), PW-12 Sonu (photographer) and PW-13 Jagbir Singh Inspector Police Station Hiranagar (I.O) have been given up by the prosecution for reasons best known to it. The evidence of the prosecution was closed by the trial Court on 25.01.2011. The statements of the respondents/accused under the scheme of Section 342 Cr.P.C were recorded on 29.01.2011, wherein, respondents/accused denied all the incriminating evidence against them, pleaded innocence and their false implication in the case. As the respondents/accused could not be acquitted in terms of Section 273 Cr.P.C they were directed to lead their defence evidence. After affording number of opportunities, Ld. As the respondents/accused could not be acquitted in terms of Section 273 Cr.P.C they were directed to lead their defence evidence. After affording number of opportunities, Ld. counsel for the respondents/accused declined to produce any defence evidence, therefore, defence evidence of respondents/accused was closed by the trial Court vide order dated 17.03.2011. It is apt to reiterate here, that initially the trial was being conducted in the Court of Principal Sessions Judge Kathua, but with the creation of District Samba learned Principal Sessions Judge Kathua vide his order dated 24.11.2008 in compliance to Notification No. 299 dated 25.06.2008 issued by the Hon’ble High Court of J&K r/w SROs No. 148 and 149 dated 30.05.2002 transferred the case to the court of learned Principal Sessions Judge Samba, whereby, respondents/accused were directed to appear before the said court and all the record as well as charge sheet was submitted to the court of Principal Sessions Judge Samba. 8. Appellant/State has led “oral” as well as “documentary evidence” to substantiate charges against the accused/respondents for the commission of offences punishable under Sections 498-A/302 RPC. Prosecution has examined as many as 10 witnesses out of listed 13 witnesses. The prosecution examined oral witnesses as well as led documentary evidence as under:- PW Name of witness Role/fact the witness would prove 1. Manga Ram (Uncle of deceased) Disclosure statement, seizure memo and seizure of dead body as well as cloths of the deceased. 2. Darbari Lal complainant (father of deceased) Lodging of FIR, seizure of plastic gallon of kerosene oil, burnt cloths of deceased and match box 3. Hira Lal (Uncle of deceased) Seizure memo and circumstantial evidence 4. Radhey Shyam (brother of deceased) Disclosure statement of accused regarding seizure kerosene oil gallon. 5. Bhagmal (Uncle of deceased) Recovery memos of kerosene oil gallon. 7. Rahul (nephew of deceased) Circumstantial witness. 8. Dr. Karam Vir Singh, MO Hospital, Samba Dying declaration of deceased. 9. Om Parkash 596-K, P/S Hiranagar Supurdnama of seal. 10. Dr. Sanjay Bhat (MO, Medical College Jammu) Post-mortem of deceased. 11. Rakesh Kumar, photographer Photographs of scene of crime. 9. Before coming to the conclusion, whether prosecution has successfully substantiated charges against the respondents/accused beyond hilt, we have found it advantageous to give a brief resume of the evidence putforth by the prosecution witnesses before the trial Court. 10. Dr. Sanjay Bhat (MO, Medical College Jammu) Post-mortem of deceased. 11. Rakesh Kumar, photographer Photographs of scene of crime. 9. Before coming to the conclusion, whether prosecution has successfully substantiated charges against the respondents/accused beyond hilt, we have found it advantageous to give a brief resume of the evidence putforth by the prosecution witnesses before the trial Court. The relevant portions of the testimonies of the prosecution witnesses are summarized as under:- Prosecution Evidence:- PW-1 Manga Ram (Uncle of deceased, witness to the disclosure statement, seizure memo and seizure of dead body as well as cloths of the deceased.) in examination-in-chief has deposed, that deceased never complained to him that the accused had been harassing her. Deceased and the accused were having cordial relations with each other. She never ever mentioned to him regarding any harassment meted out to her by the accused. He has also denied the contents of the recovery memo. This witness was declared hostile, but in his cross-examination also, he has reiterated that the accused never maltreated or harassed the deceased and also that no disclosure statement was made by the accused in his presence. However, he has admitted his signatures on the disclosure statement. PW-2 Darbari Lal, (f/o deceased, witness to lodging of initial report/FIR, seizure of plastic gallon of kerosene oil, burnt cloths of deceased and match box) in examination-in-chief has stated, that marriage of his son Radhey was scheduled for 25.04.2002. He got a call on 27.04.2002 from accused Kali Dass to send the deceased home. His son Radhey went to the house of the accused to drop the children. Upon his return, Radhey informed him that accused had beaten deceased Anita and was carrying a bottle of kerosene oil also. His brother-in-law Bhagmal went to the house of the accused and called them at his house, where brother-in-law of the accused had also come. However, the dispute could not be resolved. Accused persons went back, however, the deceased, who had came with the accused persons stayed there and relations of the accused came to take her back. She was sent home upon the assurance of accused Narayan (brother-in-law of the deceased). After two months they came to know that accused Kali Dass had killed the deceased. He went to the Hospital where the deceased had been taken in a serious condition. The deceased had died by the time he reached there. She was sent home upon the assurance of accused Narayan (brother-in-law of the deceased). After two months they came to know that accused Kali Dass had killed the deceased. He went to the Hospital where the deceased had been taken in a serious condition. The deceased had died by the time he reached there. Accused persons took the dead body home and last rites of the deceased were performed by the accused. Clothes of the deceased and match box in question were not seized in his presence, but his signatures were obtained on the concerned seizure memos. In cross-examination deposes, that Parshotam, who is unknown to him, informed him that accused Kali Dass killed the deceased, however, he did not inform him as to how the deceased was killed by the accused. Accused had not killed the deceased in presence of Parshotam Kumar. PW-Bhagmal had received information on phone with regard to this and he had sent Parshotam to him for transmitting the information. Afterwards he came to know that deceased Anita had contacted Bhagmal on phone that accused Dass had burnt her. Accused persons had taken the deceased to Samba Hospital in burnt condition, wherefrom she was referred to Jammu. The age of the daughter of the deceased was 10 years, at the time when his statement was recorded. He had not participated in the meeting to resolve the dispute between the accused and the deceased as he was not well and he does not know what actually had transpired there. Accused Narain Dutt is responsible in the instant case only for the reason that he had taken the deceased home on his own responsibility, and she died notwithstanding such assurance and there is no other grievance against him. He had never beaten or harassed the deceased. He had also once seen a mark of slap on the deceased, however, he did not enquire from her as to how she had received that mark. Radhey Shyam only informed him that Kali Dass (accused) had beaten her. He did not inform the police that Bhagmal had informed him that he saw the accused Kali Dass slapping the deceased. Manga Ram and Bhagmal are his brother-in-laws (wife’s brothers). Accused Kali Dass had never beaten the deceased in his presence, nor did accused himself ever made a demand for dowry from him. He did not inform the police that Bhagmal had informed him that he saw the accused Kali Dass slapping the deceased. Manga Ram and Bhagmal are his brother-in-laws (wife’s brothers). Accused Kali Dass had never beaten the deceased in his presence, nor did accused himself ever made a demand for dowry from him. He had also never complained as to why the ‘milni’of his mother and that of deceased was not solemnized at the time of his marriage. Deceased also never complained to him against the accused persons having ever demanded dowry. He does not know whether the accused had kept a joint account with his wife and had 15 thousand rupees still in the account, on the day of occurrence. PW-3 Hira Lal, (uncle of the deceased, witness to the seizure memo and circumstantial evidence) in examination-in-chief has stated, that the accused-Kali Dass informed him at Hospital that the deceased had got burnt herself, but deceased Anita informed that accused who was standing nearby was responsible for this. After half an hour she died. Deceased used to often meet him once in a month, but she never made any complaint against the accused. She had also not specifically stated that the accused had burnt her. Accused had never made any demand of dowry from the deceased nor did deceased ever told him about this. This witness was also declared hostile by the prosecution as there is nothing in his cross-examination to discredit him. PW-4 Radhey Shyam, ( b/o deceased, witness to disclosure statement of accused regarding seizure of kerosene oil gallon) in examination-in-chief has stated, that accused and the deceased used to have altercation with each other after the marriage. He had gone to the house of the accused 20/22 days prior to the occurrence. He stayed there for a night and he heard deceased screaming. He enquired from her but she did not disclose any reason for the same. However, on the next morning, she informed him that accused had tried to strangulate her because he blamed her for having born her a daughter. He returned home and informed his parents about this. On 25.04.2002 his marriage was scheduled. Two days thereafter, the accused rang up his uncle to send his children home at Hiranagar. He went to the house of the accused alongwith his nephew Rahul to drop the children. He returned home and informed his parents about this. On 25.04.2002 his marriage was scheduled. Two days thereafter, the accused rang up his uncle to send his children home at Hiranagar. He went to the house of the accused alongwith his nephew Rahul to drop the children. He saw from a meshed door that accused was holding a bottle of kerosene and beating the deceased. He knocked the door and accused left the deceased. He kept the bottle in the kitchen. He enquired from the accused as to what was he doing. His sister informed him that accused wanted to kill her. She asked him to inform about this at home. He informed his parents about the same. One month thereafter, the deceased died due to burn injuries. The police went to the house of the accused and recovered a bottle, however, the accused had not disclosed about the bottle to the police nor the bottle was recovered at the instance of the accused. Police searched the house of the accused and upon the said search police recovered a bottle. He denies the contents of the disclosure statement and also recovery memo. He also denied that any ring was given on supurdnama to Bhagmal. In cross-examination, the witness has stated, that he never saw the accused and the deceased having any altercation. He only heard that they often used to have the altercation. The children of the accused also saw the accused Kali Dass beating the deceased when he went 20/22 days prior to the accused to drop the children at the home of the accused. His children also saw the accused holding bottle of kerosene oil. Landlord of the accused also resided in that house. He neither informed the landlord nor any person of that locality regarding incident. Police Station Hiranagar is also situated in the same Mohalla. He did not lodge any report there even. The age of PW-Rahul who was accompanying him, was 10 years. Accused had taken the deceased to hospital. His uncle Manga Ram had persuaded the accused not to beat the deceased. He did not inform this to the police in his statement. PW-5 Bhagmal, (uncle of the deceased, witness to recovery memos of kerosene oil gallon) in examination-in-chief has deposed, that the accused used to harass the deceased often for having brought insufficient dowry and would not allow her to wear good clothes. He did not inform this to the police in his statement. PW-5 Bhagmal, (uncle of the deceased, witness to recovery memos of kerosene oil gallon) in examination-in-chief has deposed, that the accused used to harass the deceased often for having brought insufficient dowry and would not allow her to wear good clothes. Accused-Kali Dass had not attended the marriage of his brother-in-law-Radhey Shyam on 15th of April 2002 as they had not given him scooter in dowry. He demanded a golden chain thereafter and left annoyed when it was not given to him. On 27.04.2002, accused-Kali Dass asked his in-laws to drop the children to his house, as they had gone to attend the marriage of their uncle. Radhey Shyam and PW-Rahul went there to drop the children. They informed him that they saw the deceased screaming. They saw the accused holding a bottle of kerosene. In June 2002 he was in Srinagar and he received information there that the deceased had died. He came from there and deceased had died when he reached the Hospital. Her last rites were performed by her in-laws. A search was conducted in the house of accused-Kali Dass and the bottle of kerosene oil was recovered. No statement was made by the accused before the recovery of the bottle and the accused however was not present at that time. In cross-examination, he has stated that his statement was recorded two/three days after the occurrence and not on 06.07.2002. He mentioned to the police that the accused did not allow the deceased to wear good clothes, however, same is not mentioned in his statement under Section 161 Cr.P.C. Accused had never slapped the deceased in his presence. He also mentioned to the police about the scooter demanded by the accused, but admits that the same is also not mentioned in his statement under Section 161 Cr.P.C. No altercation ever took place between the accused and the deceased, in his presence, as he never went to the house of the accused. He never complained with anyone with regard to the strained relation between the deceased and the accused. The accused and his family had brought the deceased to the hospital and the dead body was handed over to the accused persons. They did not object, at that time to the handing over of the dead body of the deceased to the accused persons. The accused and his family had brought the deceased to the hospital and the dead body was handed over to the accused persons. They did not object, at that time to the handing over of the dead body of the deceased to the accused persons. PW-7 Rahul, (nephew of the deceased, circumstantial witness) has stated that he went with Radhey Shyam to drop the children of the deceased at the house of the accused. As they entered the house, they heard the cries of the deceased. They saw the accused holding the gallon of kerosene oil, when they opened the door. Accused had caught hold of the deceased by hair, upon seeing them, accused kept the bottle of kerosene inside the house. They enquired from the deceased about the incident. She informed them that the accused wanted to burn her. In cross-examination has stated that landlord of the house was also there at that time. They did not see Narain Dutt there at that time. He did not raise any hue and cry when they saw the deceased being beaten up by the accused, nor they talked to anyone in the Mohalla about the same. He did not see the gallon of kerosene oil in the court. PW-8 Dr. Karam Vir Singh (M.O Hospital Samba) has deposed, that in the year 2002 he was posted as Medical Officer in Samba Hospital. He has no knowledge whether he has referred any patient. In cross-examination deposes, that in the case in hand he had not disclosed his name as Karam Vir Singh. PW-9 Om Parkash 596/K (presently Police Academy Udhampur 83/PAU) in examination-in-chief has deposed, that on 23-06-2002 he was posted in police station Hiranagar. In the case in hand vide Supurdnama a seal on 23-06-2002 was given to him, contents of Supurdnama are true and correct, he identifies his signature on it, and it is exhibited as EXPW9-OP. In cross-examination deposes, that what was the mark impression of the seal he does not remember, however, some small-small words 8/9 in numbers were there. For what purpose the seal was used he does not know. Supurdnama was prepared in police station. PW-10 Dr. In cross-examination deposes, that what was the mark impression of the seal he does not remember, however, some small-small words 8/9 in numbers were there. For what purpose the seal was used he does not know. Supurdnama was prepared in police station. PW-10 Dr. Sanjay Bhat (MO, GMC Jammu, witness to Post-mortem of deceased) on 10.1.2011 has deposed as under:- “On examination in chief by the Learned Public Prosecutor, the witness deposed that on 23.6.2002, I was posted as M.O. GMC Jammu and conducted the autopsy on Anita Devi w/o Kali R/O Rainson Hiranagar vide PM No.380/2002 who was brought by HC Om Parkash No.596/K of P/S Hiranagar and the body was identified by Narain Dutt and Manga Ram. On examination of the dead body, I found the following injuries:- Epidermal and demo epidermal burns present over the body except the areas:- Both feet up to ankle joints. Scalp, both breasts, pubic region.. The total burn surface are was 85%. Seinging of hair over forehead present. In my opinion the cause of death in the case was shock as a result of extensive burn injuries. The certificate on the file is under my hand and bears my signature. It is true and correct. It is marked as EXT-SB. On cross-examination by the Learned Counsel for accused the witness deposed that I have not noticed any mark of violence over the part of the body of the deceased more particularly on those parts of her body, which does not sustain any burn injuries. The burn could be possible by self infliction also and also accidently. 14 CRAA No. 108/2011 The throat of the deceased was also burnt, belive Dr. Modi to be an authority over medical jurisprudence. It is true that a patient with 85% burn is constantly put on pain killers for relief of pain. No more question”. ROAC PW-11 Rakesh Kumar (photographer) in examination-in-chief has deposed, that he runs a photograph shop at Hiranagar Morh/zig. Four years ago police had come at his shop and had taken him for picking up photographs at Raie. On spot he had picked up 3 photographs which are annexed in the file, which after developing he handed over to police. He has seen the photographs with the file and identifies them, which are respectively marked as mark-I to III. 10. On spot he had picked up 3 photographs which are annexed in the file, which after developing he handed over to police. He has seen the photographs with the file and identifies them, which are respectively marked as mark-I to III. 10. It is apt to reiterate here, that there is no direct evidence that the accused persons poured kerosene oil upon the deceased and burnt her alive. The instant case hinges upon the “circumstantial evidence” against the accused. The trial court has relied upon the following circumstances to prove guilt against the accused:- (i) that the accused have been harassing and maltreating the deceased for having brought insufficient dowry; (ii) that the accused had earlier also tried to burn the deceased on 27-04-2002; (iii) that the deceased have died due to burn injuries; (iv) that the deceased has made a dying declaration to PW-3 Hira Lal (uncle of the deceased) against the accused regarding her cause of death; (v) that accused has made disclosure statement consequent whereof recovery of bottle of kerosene oil has been effected at the instance of accused. 11. The 1st circumstance against the accused persons is, “whether the accused have been harassing and maltreating the deceased for having brought insufficient dowry”? PW-1 Manga Ram who is the real uncle of deceased has categorically putforth evidence before the trial court that accused never maltreated or harassed the deceased, deceased never complained to him about insufficient dowry, accused and deceased had cordial relations and deceased never narrated to him regarding any harassment meted out to her by the accused. This witness has been declared hostile by the prosecution and in cross-examination has not even uttered a word that the relations between accused and deceased were not cordial. PW-2 Darbari Lal (father of the deceased) has testified before the trial court that accused used to harass the deceased for bringing insufficient dowry, but in the same breath has admitted that accused never harassed the deceased in his presence and deceased never made any complaint that accused persons demanded any dowry. PW-3 Hira Lal (uncle of the deceased) has categorically stated before the trial court, that accused never made any demand of dowry from the deceased nor did deceased ever tell him about this. This witness too has been declared hostile by the prosecution but in his cross-examination nothing has been elicited to discredit his testimony in examination-in-chief. PW-3 Hira Lal (uncle of the deceased) has categorically stated before the trial court, that accused never made any demand of dowry from the deceased nor did deceased ever tell him about this. This witness too has been declared hostile by the prosecution but in his cross-examination nothing has been elicited to discredit his testimony in examination-in-chief. PWs 1,2,3 namely, Manga Ram, Darbari Lal & Hira Lal aforesaid, being the star witnesses of the prosecution were to prove the factum of cruelty meted out to the deceased at the hands of accused persons, but these star witnesses in their depositions before the trial court have categorically denied that the accused persons made any demand of dowry from the deceased or maltreated or harassed the deceased. The aforesaid witnesses have gone to the extent of deposing that the relations between the deceased and the accused persons were cordial. None of the aforesaid witnesses have narrated the dates, months or year when deceased was subjected to harassment or cruelty or torture by the accused persons. Be it noted, that the specific act or omission attributed against each accused must be clearly spelt out in their evidence and the mental and physical cruelty must be of such a nature which would amount to cruelty within the meaning of Section 498-A, RPC. In AIR 2002 SC 2078 (Gurnaib Singh Vs. State of Pubjab), Hon’ble Supreme Court while analyzing the attributes of cruelty has opined that clause A of explanation to section 498-A, IPC defines cruelty to mean “any willful conduct which is of such a nature as is likely to drive the women to commit suicide”. Harassment of course need not be in the form of physical assault and even mental harassment also would come within the definition of Section 498-A, RPC. In the case in hand, it needs to be recorded with due emphasis that none of the PWs 1,2,3,namely, Manga Ram, Darbari Lal & Hira Lal have putforth cogent, credible and reliable evidence that accused persons use to harass and maltreat the deceased for bringing insufficient dowry. The 1st circumstance, therefore, is answered against the prosecution and in favour of the accused/respondents. 12. The 2nd circumstance against the accused persons is, “whether accused had earlier also tried to burn the deceased on 27-04-2002”? The 1st circumstance, therefore, is answered against the prosecution and in favour of the accused/respondents. 12. The 2nd circumstance against the accused persons is, “whether accused had earlier also tried to burn the deceased on 27-04-2002”? To prove this circumstance, prosecution has relied upon the evidence of PW-4 Radhey Sham (real brother of deceased) & PW-7 Rahul Khajuria (nephew of deceased). As per the prosecution version, accused had earlier also tried to burn the deceased on 27-04-2002 as accused were seen holding bottle of kerosene oil by PW-4 Radhey Sham & PW-7 Rahul Khajuria at his rented accommodation at Hiranagar. PW-4 Radhey Sham has led evidence before the trial court that 20/22 days prior to the occurrence when he had gone to drop the children of deceased in her rented house, the children had also witnessed the incident where accused has tried to throttle the deceased for giving birth to a daughter who had by then already become 10 years old and he had seen deceased beaten by the accused holding a bottle of kerosene oil to burn the deceased. PW-7 Rahul Khajuria happens to be 10 years old at the time of incident and was accompanying PW-4 Radhey Sham and has also tried to corroborate the prosecution version, but his evidence does not appear to be convincing as Radhey Sham has in later part of his evidence categorically said that he never saw the deceased being beaten by the accused. It is the prosecution version that deceased and accused were living in a rented accommodation at Hiranagar where the landlord used to live. As per the evidence of PW-4 Radhey Sham landlord was present at that time and would have been the best independent witness to depose about such incident, but for reasons best known to the prosecution, the said landlord has not been arrayed as witness by the prosecution. Not only this, even the children of the deceased especially her daughter who at the time of occurrence was 9/10 years old could have been examined as prosecution witnesses, but for reasons best known to the prosecution the daughter of deceased does not figure as witness of the prosecution. PWs 4&7 Radhey Sham & Rahul Khajuria have not led cogent, credible, trustworthy, reliable evidence to demonstrate/prove that accused had earlier made an attempt on 27-04-2002 to burn the deceased. PWs 4&7 Radhey Sham & Rahul Khajuria have not led cogent, credible, trustworthy, reliable evidence to demonstrate/prove that accused had earlier made an attempt on 27-04-2002 to burn the deceased. The 2nd circumstance, is therefore, answered against the prosecution and in favour of accused/respondents. 13. The 3rd circumstance relied by the prosecution is, “whether deceased died due to burn injuries”? PW-10 Dr. Sanjay Bhat (MO GMC Jammu) has conducted the postmortem of deceased on 10-01-2011 wherein he has found that total burn surface of deceased was 85% and in his opinion the cause of death was shock as a result of extensive burn injuries. In cross-examination, the witness has deposed, that he did not notice any mark of violence over the parts of the body of deceased which does not sustain any burn injuries and has categorically opined that the burns could be possible by self infliction and also accidently. The evidence of PW-10 Dr. Sanjay Bhat (MO GMC Jammu) is only of the corroborative nature when the other evidence adduced by the prosecution would prove that the accused/respondents are responsible for pouring kerosene oil upon the deceased and burning her alive. In view of the discussion rendered in 1st and 2nd circumstance, prosecution has not led any cogent, credible, trustworthy and reliable evidence that the accused persons poured kerosene oil upon the deceased and burnt her. In absence of any positive evidence regarding the culpability of accused/respondents in the commission of murder of deceased, by no stretch of imagination, the opinion evidence of PW-10 Dr. Sanjay Bhat would lead to the conclusion that accused persons are responsible for causing the death of the deceased. 14. The 4th circumstance relied by the prosecution is, “whether the deceased has made a dying declaration to PW-3 Hira Lal (uncle of the deceased) against the accused regarding her cause of death”? As per the prosecution version, deceased Anita Devi is alleged to have made dying declaration to PW-3 Hira Lal (uncle of deceased) that accused No.1 is responsible for the incident. We have thoroughly scanned the evidence of PW-3 Hira Lal. Though PW-3 Hira Lal has testified that deceased narrated to him that accused No.1 was responsible for the incident but has admitted that deceased was not able to talk much and had sustained 90% burn injuries. PW-10 Dr. We have thoroughly scanned the evidence of PW-3 Hira Lal. Though PW-3 Hira Lal has testified that deceased narrated to him that accused No.1 was responsible for the incident but has admitted that deceased was not able to talk much and had sustained 90% burn injuries. PW-10 Dr. Sanjay Bhat (MO, GMC Jammu) in his cross-examination has deposed, that the patient was having 85% burn injuries and was put on pain killers constantly for relief of pain, meaning thereby, that the deceased was not in a position to talk. In so far as dying declaration is concerned, it is not corroborated by any other independent witnesses. PW-3 Hira Lal though has stated that PW Koushaliya Devi was present there at that time but PW-Koushaliya Devi has not been examined by the prosecution for reasons best known to it. PW-3 Hira Lal has admitted that no doctor was informed about the fact that accused is responsible for death of deceased. Moreso, the dying declaration was neither scribed nor was made before Magistrate. The doctor present in the Hospital ought to have been called to testify whether deceased/declarant was in a fit state of mind to make declaration regarding her cause of death. In this backdrop, the so called dying declaration which has not been scribed and not corroborated by any source cannot be relied upon. The 4th circumstance is, accordingly, answered against the prosecution and in favour of the accused/respondents. 15. The 5th & last circumstance relied by the prosecution is, “whether accused has made disclosure statement consequent whereof recovery of bottle of kerosene oil has been effected at the instance of accused”? To prove the disclosure statement and the recovery of bottle of kerosene oil, prosecution has heavily relied upon the evidence of PW-4 Radhey Sham (b/o deceased) & PW-5 Bhagmal (uncle of deceased). We have critically analyzed the depositions of PW-4 Radhey Sham & PW-5 Bhagmal. It is the evidence of PW-4 Radhey Sham that police went to the house of accused and recovered a bottle, however, accused had not disclosed about the bottle to the police nor bottle was recovered at the instance of accused. This witness has denied the contents of disclosure statement and recovery memo. PW-5 Bhagmal’s evidence is to the effect, that no disclosure statement was made by the accused before the recovery of kerosene oil bottle. This witness has denied the contents of disclosure statement and recovery memo. PW-5 Bhagmal’s evidence is to the effect, that no disclosure statement was made by the accused before the recovery of kerosene oil bottle. As per the evidence of PW-4 Radhey Sham & PW-5 Bhagmal accused have not made any disclosure statement in their presence and no recovery of kerosene oil bottle have been effected pursuant to such disclosure statement. Viewed thus, the disclosure statement and recovery memo stand not proved by the prosecution. 16. We, on the basis of the aforesaid evidence, hold, that there is no legal evidence on record to prove that respondents/accused are the mastermind of murder of deceased Anita Devi. The circumstantial evidence relied upon by the prosecution are not strong enough indicating the involvement of respondents/accused in the commission of crime and all the circumstances are not compatible with the possibility of guilt of the accused/respondents. The witnesses examined by the prosecution, have not been able to putforth in their evidence a ring of truth, so as to inspire confidence in this court. Evidence of prosecution witnesses, is therefore, qualitatively and quantitatively, insufficient to bring nexus between respondents/accused and commission of the offences indicted against them. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. It would be highly dangerous and hazardous to hold the respondents/accused guilty of offences alleged against them on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful. For the foregoing reasons and discussion, we are of the considered view, that prosecution has miserably failed to prove the guilt of the respondents/accused beyond reasonable doubt for commission of offences U/Ss 302/498-A/34 RPC. Resultantly, the impugned judgment and order of acquittal dated 18-03-2021 rendered by the court of Ld. Pr. Sessions Judge Samba in file No. 09/Sessions titled State Vs Kali Dass & Ors is upheld. Respondents/accused (i) Kali Dass & (ii) Narayan Dutt, sons of Bishambar Dass residents of Raian Tehsil Hiranagar are therefore cleanly acquitted of the charges leveled against them for commission of offences U/Ss 302/498-A/34 RPC. Pr. Sessions Judge Samba in file No. 09/Sessions titled State Vs Kali Dass & Ors is upheld. Respondents/accused (i) Kali Dass & (ii) Narayan Dutt, sons of Bishambar Dass residents of Raian Tehsil Hiranagar are therefore cleanly acquitted of the charges leveled against them for commission of offences U/Ss 302/498-A/34 RPC. They shall stand discharged from their bails and personal bonds. Seized case property shall be destroyed after the period of appeal is over. Criminal acquittal appeal is disposed off, and after due compilation under rules, shall be consigned to record. Record of the trial court be sent back forthwith alongwith copy of the judgment for information of the trial court.