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2024 DIGILAW 2123 (ALL)

Babli v. State of U. P.

2024-09-24

ARVIND SINGH SANGWAN, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : (Per Hon'ble Arvind Singh Sangwan,J. ) 1. These appeals have been filed by the appellants challenging the judgment of conviction dated 10.01.2020, passed by learned Additional Sessions Judge, FTC, Court No.2, Bulandshahar holding the appellants Babli, Jaiprakash, Vimla, Raju and Kamal guilty of offence punishable under Sections 302/34 I.P.C., and appellants Babli, Jaiprakash, Vimla, Raju under Sections 498A of IPC and Section 3 & 4 of Dowry Prohibition Act and order of sentence of the same date sentencing appellants for life imprisonment under Section 302/34 of IPC with fine of Rs.20000/- each and in case of default in payment of fine, further to undergo six months simple imprisonment each, under Sections 498A, appellants Babli, Jaiprakash, Vimla, Raju, three years rigorous imprisonment with fine of Rs. 3000/- each and in case of default in payment of fine, further to undergo one month’s simple imprisonment, under Section 3 of Dowry Prohibition Act, appellants Babli, Jaiprakash, Vimla, Raju, three years rigorous imprisonment with fine of Rs. 3000/- each and in case of default in payment of fine, further to undergo one month’s simple imprisonment and under Section 4 of Dowry Prohibition Act, appellants Babli, Jaiprakash, Vimla, Raju, two years rigorous imprisonment with fine of Rs. 2000/- each and in case of default in payment of fine, further to undergo 20 days simple imprisonment. 2. It is worth noticing that against rejection of bail application, the accused Kamal had filed Petition(s) for Special Leave to Appeal (Crl.No(s). 9146 of 2022 in Criminal Appeal No.388 of 2020 which was disposed of on 14th December, 2022 with a direction to the High Court to dispose of the appeal expeditiously as expeditiously as possible and therefore, the arguments on all connected appeals are heard on priority basis. 3. Heard Mr. Bipin Kumar Tripathi, Mr. Sailesh Narain Pathak, Ms. Pukhraj, Ms. Richa Sharma, learned counsels for the appellants, Ms. Muskan Pandey, learned Amicus Curiae appointed by this Court on behalf of accused-appellant, Kamal, and learned A.G.A. for the State. 4. As per the prosecution, informant- Munesh submitted a complaint as Ex.Ka.1, which read as under: 5. On the basis of complaint, chik FIR was registered as Ex.Ka.9. 6. The police started the investigation and the statement/dying declaration of the victim was recorded as Ex.Ka.2 on 03.07.2014 which read as under: 7. The victim died on 9.7.2014 and her post-mortem was conducted. On the basis of complaint, chik FIR was registered as Ex.Ka.9. 6. The police started the investigation and the statement/dying declaration of the victim was recorded as Ex.Ka.2 on 03.07.2014 which read as under: 7. The victim died on 9.7.2014 and her post-mortem was conducted. During the investigation, the police prepared panchayatnama, also effected certain recoveries from the place of occurrence, arrested the accused persons, recorded the statement of the witnesses under Section 161 of Cr.P.C and thereafter, submitted the final report against five accused persons, namely, Raju, Vimlesh, Jayprakash, Babli and Kamal. The case was committed to the Court of Sessions and the charges were framed as under: 8. Identical charges were framed against accused Kamal. The accused did not plead guilty and claimed the trial. 9. In prosecution evidence, PW-1- Munesh appeared and deposed on the line of the FIR. The operative part of the examination-in-chief read as under: In cross-examination, this witness stated that accused Kamal is resident of different village-Accheja in District Bulandshahar. He further stated that on account of demand of dowry, the relationship of the deceased and her husband were strained and father of the deceased has got registered the police complaint regarding demand of dowry. He further stated as under : 10. PW-2- Fakira- father of deceased Neelam, did not support the prosecution version and stated as under: Declare hostile on the request of ADGC.” In cross-examination by ADGC, he denied that he has made a statement before C.O. regarding demand of dowry. He pleaded ignorance about the contents of the complaint filed for demand of dowry. He also denied about the dying declaration made by the deceased in the hospital. In cross-examination by accused Kamal, he stated that Kamal is not from the family of the accused persons and is resident of the different village. He further stated that when they were in the hospital, he did not ask anyone as to how a victim suffered burn injuries. He further stated that in a period of six days, he along with Sudhir, Sudhir’s sister-in-law- Neelam stayed in the hospital and as the deceased was admitted in a Ladies Ward, Neelam (sister-in-law) stayed with her. During the treatment, the victim was unconscious and when the cremation of his daughter was done, Jayprakash (father-in-law) and other villagers attended the same. He further stated that in a period of six days, he along with Sudhir, Sudhir’s sister-in-law- Neelam stayed in the hospital and as the deceased was admitted in a Ladies Ward, Neelam (sister-in-law) stayed with her. During the treatment, the victim was unconscious and when the cremation of his daughter was done, Jayprakash (father-in-law) and other villagers attended the same. He further stated that he did not know how his daughter sustained burn injuries and admitted a suggestion that Raju, Jayprakash, Vimlesh, Babli and Kamal have not committed the murder of his daughter. 11. PW-3- Sudhir Kumar, brother of deceased Neelam also did not support the prosecution version and rather stated that his sister sustained accidental burn injuries from stove while cooking food. In cross-examination, this witness also stated that till the time his sister was in the hospital, she was unconscious and he along with his sister-in-law Neelam were attending her. He stated that the informant of the case is uncle who residing separately and her father-in-law Jayprakash and 2-3 other persons attended the cremation of his sister. He admitted a suggestion that his sister died because of accidental stove burn injuries. The operative part of cross examination read as under : 12. PW-4- Ved Prakash Meena, Executive Magistrate stated that on the direction of S.D.M. Seemapuri, he has visited the G.T.B. Hospital for recording the statement of Neelam, where he met A.S.I. Naresh Kumar and he then went for recording the statement of victim. The doctor gave his opinion that the victim is fit to make her statement and he recorded the statement, the dying declaration, which Ex.Ka.2. In cross-examination, this witness stated that he cannot tell the difference between fitness to speak and stability in fitness to speak. He stated that the statement of the victim as Ex.Ka.2 is of 40 lines, which were recorded at the time when doctor was not present. He took one hour in recording the statement. He stated that he has no written order of S.D.M. and only on his oral order, he has recorded the statement. He further stated that he had no knowledge if the Investigating Officer has recorded his statement. He stated on Ex.Ka.2 at the beginning, there is a signature but he did not know, who had signed it. He also stated that he did not get the signature of the attendant of the victim. He further stated that he had no knowledge if the Investigating Officer has recorded his statement. He stated on Ex.Ka.2 at the beginning, there is a signature but he did not know, who had signed it. He also stated that he did not get the signature of the attendant of the victim. He further stated that the victim was 90% burnt and only doctor can tell whether she was in a position to speak. The operative part of cross examination read as under : 13. PW-5- Naresh Kumar, A.S.I. stated that he got the post-mortem of Neelam conducted and handed over the dead body to her brother and father. He recorded the statement of some of the witnesses vide Ex.Ka.3. The dead body was handed over as per order of Executive Magistrate. He obtained the thumb impression of Fakir Chand as Ex.Ka.4. Panchayatnama is Ex.Ka.6. In cross-examination, he admitted that he has not signed the documents i.e. Ex.Ka.3 to Ex.Ka.6. Even on the Panchayatnama as Ex.Ka.6, he has not signed and no time is mentioned on these documents. However, as per his memory, these were prepared on 09.07.2014. The examination-in-chief of PW-5 is read as under : 14. PW-6- Rafal Singh Tomar, C.O., another I.O. also gave details of the investigation conducted, recording the statement of the victim and the manner in which the arrest of the accused persons was done. He prepared the charge-sheet as Ex.Ka.7 which was filed in the court and the supplementary charge-sheet regarding Jayprakash as Ex.Ka.8. In cross-examination, this witness stated that accused Kamal is resident of village- Accheja whereas other accused is resident of village-Ananua and there is a difference of 20kms. He stated that he asked from the accused if Kamal is their relative. The case was initially registered under Sections 498A, 307 of I.P.C. and Section 3/4 of D.P. Act. Later on, Section 304B of IPC was added. 15. PW-7- Virma, mother of the deceased Neelam stated that there was no demand of dowry from the accused side and she has no knowledge how her daughter Neelam died. This witness was also declared hostile. In cross-examination, she stated that when she visited the hospital, her daughter Neelam was not in a position to speak. She admitted a suggestion that Neelam never raised any objection that there was any demand of dowry from her in-laws. 16. This witness was also declared hostile. In cross-examination, she stated that when she visited the hospital, her daughter Neelam was not in a position to speak. She admitted a suggestion that Neelam never raised any objection that there was any demand of dowry from her in-laws. 16. PW-8- Manish Kumar, Constable stated that he has recorded the G.D. entry and chic FIR as Ex.Ka.9 and Ex.Ka.10. In cross-examination, he admitted that in the chic FIR as Ex.Ka.9, the C.J.M. under his seal has put the date as 10.7.2014 whereas the incident is of 2.7.2014. He denied a suggestion that FIR is ante-time. 17. PW-9- Jay Prakash Upadhyay, another I.O. stated that he has prepared the site plan as Ex.Ka.11 and recorded statement of witnesses as Ex.Ka.12 and Ex.Ka.13. After the death of the victim, section 304B of IPC was added. 18. PW-10- Alok Kumar, working in G.T.B. Hospital, has produced on record the death summary prepared by Dr. Swathi as Ex.Ka-1. In cross-examination, he stated that he had no knowledge where Dr. Swathi is presently working. He further stated that the cause of death was septicemia and the deceased died on 9.7.2014. 19. Thereafter, the statements of accused persons under Section 313 of Cr.P.C. was recorded and all the incriminating evidences were put together. It was stated on behalf of the accused Kamal that he has no connection with the family of accused Raju and he was not present at the spot and he has been falsely implicated. The other accused also in their statements under Section 313 of Cr.P.C., stated that neither there was any demand of dowry nor the deceased was harassed. The victim was admitted in Govt. Hospital by Vimlesh and Raju. Jaiprakash had stayed in the hospital and had borne all the expenses of medical treatment including medicine. He also attended the cremation of the deceased. In reply to Question No.5, a specific reply is given that the statement of Neelam (sister-in-law of victim Neelam) is made base of Dying Declaration. 20. In defence evidence, DW-1, Dr. Sachin, was examined who stated that on 2.7.2014, Neelam was brought by Raju s/o Jaiprakash. Neelam was having 95% burn injuries and she did not tell him about the cause of sustaining injuries as she was not in a position to speak. After her medical examination, she was sent to better institution for further medical treatment. 21. Sachin, was examined who stated that on 2.7.2014, Neelam was brought by Raju s/o Jaiprakash. Neelam was having 95% burn injuries and she did not tell him about the cause of sustaining injuries as she was not in a position to speak. After her medical examination, she was sent to better institution for further medical treatment. 21. The right foot impression of the injured was taken on the medico legal report as Ex.Kha.1. In cross-examination, he has stated that witness was not in a position to speak. 22. Thereafter, the trial court vide impugned judgment of conviction, held the appellants guilty of offence under Sections 302/34 of I.P.C. and further awarded life imprisonment along with fine to all the accused persons. 23. Heard learned counsel for the appellants and the paper book and the Trial Court’s Record is perused. The entire evidence has been re-appreciated. 24. Learned counsel for the appellant-Kamal has primarily argued that the appellant-Kamal is resident of a different village and is not related to the other accused and he has been falsely nominated in the F.I.R. only because he is named in the Dying Declaration. 25. It is next argued that PW-2, father of deceased, PW-3, brother of deceased and PW-7, mother of the deceased, have not supported the prosecution version and have not named appellant-Kamal for his involvement in the incident. 26. It is also argued that all the three witnesses of fact have also not supported the allegation against the other accused. 27. It is next argued that no motive is attributed towards the appellant and even no motive is attributed to the other accused regarding demand of dowry or maltreatment at any stage. 28. The common argument raised by counsels for all accused persons is that the Dying Declaration is a doubtful document as the opinion of the Doctor that the victim was in a fit state of mind is not obtained on the Dying Declaration and only on the OPD Notes, it is mentioned that the victim is fit to give statements though a day prior, it was reported that she was unfit to make statements. 29. Counsel submits that the Doctor Sudipta who was treating the victim was the best witness to depose whether victim was in a fit condition to speak or not, however, Dr. Sudipta of G.T.B. Hospital, Shahdara, Delhi was not examined by the prosecution. 30. 29. Counsel submits that the Doctor Sudipta who was treating the victim was the best witness to depose whether victim was in a fit condition to speak or not, however, Dr. Sudipta of G.T.B. Hospital, Shahdara, Delhi was not examined by the prosecution. 30. It is next argued that the deceased had suffered 90 to 95% of burn injuries and she was on seductive medication and nothing has come on record that she was not given seductive medication for pain and, therefore, it is not proved that she was in a fit mental condition to record the statement. 31. Counsel argued that even PW-4 before recording the Dying Declaration has not asked any questions to the victim, in order to satisfy himself that she was in fit mental condition to depose. In cross examination, PW-4 has stated that he was not sure whether the victim was in a fit condition to speak and rather stated that only the Doctor can tell whether she was in a fit condition to speak or not and, therefore, subjective satisfaction of the Executive Magistrate is missing. 32. It is next argued that the Dying Declaration contains two pages and as per PW-4, was recorded in time span of one hour. Therefore, the manner in which, the Dying Declaration, was recorded raises a doubt whether the victim was in fit mental condition as she was in a deep pain due to 90-95% of burn injuries which included injuries on her face, therefore, she was not in a position to speak. 33. Reliance is placed on Irfan @ Naka Vs. State of U.P., AIR 2023 SC 4129 where the Supreme Court has held as under : “62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - i) Whether the person making the statement was in expectation of death? ii) Whether the dying declaration was made at the earliest opportunity? Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: - i) Whether the person making the statement was in expectation of death? ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity” iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? v) Whether the statement was not recorded properly? vi) Whether, the dying declarant had opportunity to clearly observe the incident? vii) Whether, the dying declaration has been consistent throughout? viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person’s imagination of what he thinks transpired? ix) Whether, the dying declaration was itself voluntary? x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.” 34. It is argued that except the Dying Declaration, there is no other corroborating evidence to prove the charges against the appellants and, therefore, the Dying Declaration cannot be made the sole basis for convicting the appellants. 35. Reliance is placed on the decision of the Supreme Court in Jayamma Vs. State of Karnataka, AIR 2021 SC 2399 . Operative part of the judgment read as under : “22. 35. Reliance is placed on the decision of the Supreme Court in Jayamma Vs. State of Karnataka, AIR 2021 SC 2399 . Operative part of the judgment read as under : “22. Having meditated over the issue to the extent it is possible, and on a minute examination of the original document Ex.P5 (without understanding its contents as it is in Kannada language except that the endorsement of the doctor is in English) read with its true translation placed on record, we do not find it totally safe to convict the appellants on the basis of the said document alongwith its corroboration by PW11 and PW- 16. We say so for several reasons as summarised hereinafter: Firstly, the narration of events in the dying declaration is so accurate, that even a witness in the normal state of mind, cannot be expected to depose with such precision. Although it is stated that deceased was questioned by the Police officer, the purported dying declaration is not in a questions and answers format. The direct or indirect dominance of the Police Officer appears to have influenced the answers only in one direction. Secondly, the injured victim was an illiterate old person and it appears beyond human probabilities that she would have been able to narrate the minutes of the incident with such a high degree of accuracy. Thirdly, there is sufficient evidence on record that the victim had been administered highly sedative painkillers. Owing to 80% burn injuries suffered by the victim on all vital parts of the body, it can be legitimately inferred that she was reeling in pain and was in great agony and the possibility of her being in a state of delusion and hallucination cannot be completely ruled out. We say so at the cost of repetition that the doctor (PW16) made the endorsement that the victim was in a fit state of mind to make the statement ‘after’ the statement was recorded and not ‘before’ thereto — being the normal practice. It further appears to us that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the Police Officer (PW11) intended to. It further appears to us that faculties of the injured had been drastically impaired and instead of making statement in an informative form she had apparently endorsed what the Police Officer (PW11) intended to. True it is that the Police Officer (PW11) had no axe to grind or a motive to implicate the appellants, but his overenthusiasm to solve a criminal case within no time seems to have swayed the Police Officer (PW11) so much that he appears to have not asked the doctor to make an endorsement of fitness of the victim before recording the statement. He also did not deem it appropriate to call a Judicial or Executive Magistrate to record such statement, for the reasons best known to himself. Fourthly, there is a serious contradiction between the statement of Dr. A. Thippeswamy (PW16) on one hand and the police officer K.V. Mallikarjunappa (PW11) on the other, in respect of the nature of burn injuries suffered on different body parts of the victim. While the doctor acknowledges that burn injuries included the hands of the victim, the police officer claims that her hands were safe and she could put her thumb impression. We have seen the thumb impression very scrupulously and the same appears to be absolutely natural. If that is so, the medical officer, whose statement should carry more weightage in respect of the nature and gravity of injuries, stands belied. Fifthly, and most importantly the police officer K.V. Mallikarjunappa (PW11) candidly admits that he did not seek an endorsement from the doctor as to whether the injured was in a fit state of mind to make a statement, before he proceeded to record the statement. Both the police officer as well as the doctor have tried to cover up this serious lacuna by referring to the purported oral endorsement of the doctor. It appears that the police officer was in full command of the situation and with a view to fill up the legal lacuna, he later on secured the endorsement from the doctor (PW16) on the available space of the paper, which is exfacie unusual and not in line with settled legal procedure. Sixthly, the alleged motive for the homicidal death is highly doubtful. Sixthly, the alleged motive for the homicidal death is highly doubtful. There is not an iota of evidence, and the prosecution has made no effort to verify the truth in the statement that the appellants poured kerosene and lit the victim on fire only because her son had assaulted the husband of Appellant No.1 and the accused were insisting on payment of Rs.4,000/which was spent on the treatment of the said assault–victim. Not much can be said when the deceased’s own son and daughter-in-law have denied this incident and rather claimed that their mother/mother-in-law committed suicide. The Seventh reason to dissuade us from harping upon Ex.P5 is the conduct of the parties, i.e., a natural recourse expected to happen. Had it been a case of homicidal death, and the victim’s son (PW2) and her daughter-in-law (PW5) had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide. The Eighth reason which makes us reluctant to accept the contents of purported dying declaration (Ex. P-5), is the fact that victim, Jayamma was brought to the Civil Hospital at 12.30 a.m. on 22.09.1998. She succumbed to her burn injuries after almost 30 hours later at 5:30 am on 23.09.1998. It is neither the case of prosecution nor has it been so stated by PW-11 or PW-16 that soon after recording her statement (Ex. P-5) she became unconscious or went into coma. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. The prosecution, therefore, had sufficient time to call a Judicial/Executive Magistrate to record the dying declaration. It is common knowledge that such Officers are judicially trained to record dying declarations after complying with all the mandatory pre-requisites, including certification or endorsement from the Medical Officer that the victim was in a fit state of mind to make a statement. We hasten to add that the law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate. It is only as a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a Judicial or Executive Magistrate so as to muster additional strength to the prosecution case. 23. The other important reason to depart from the High Court’s view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ‘possible view’. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.” 36. It is further argued that the sister-in-law of the deceased whose name is also Neelam, as per the prosecution version, had attended her in the Burn Ward of the Hospital was not examined and even her statement was not recorded by the Investigating Officer which raises a suspicion and, therefore, material witness has not been examined by the prosecution. 37. It is further argued that the sister-in-law of the deceased whose name is also Neelam, as per the prosecution version, had attended her in the Burn Ward of the Hospital was not examined and even her statement was not recorded by the Investigating Officer which raises a suspicion and, therefore, material witness has not been examined by the prosecution. 37. It is next argued that it has come in the statement of Investigating Officer that he has not recovered the burnt clothes of the accused-appellant who tried to save her for verifying that there was kerosene residue and, therefore, the Investigating Officer has failed to conduct a fair, impartial and proper investigation. 38. It is lastly argued that there is no eye-witness of the incident and even PW-1, the uncle of the deceased, who is the informant, in cross examination, has not supported the prosecution version. 39. It is additionally argued on behalf of other co-accused who are the husband, sister-in-law, mother-in-law of the deceased that the deceased had not reported any incident of cruelty or harassment to her parents prior to her death to prove the motive of committing the offence. 40. It is argued that in fact it was a case of accidental fire as a kerosene stove exploded while cooking the food as stated by PW-3, brother of the deceased. 41. Counsel has further submitted that though PW-1, Munesh, who is the first informant and uncle of the deceased has stated that on previous occasion, a case was registered against the accused for harassment and demand of dowry, however, there is nothing on record to prove this fact as no complaint or order of any Court is produced by prosecution. 42. It is further submitted that PW-2, Fakira, the father, PW-3, Sudhir Kumar, the brother, PW-7, Virma, the mother of the victim, have unequivocally failed to support the prosecution version and rather stated that the appellants have not made any demand of dowry immediately prior to the death of the deceased. PW-3 has even stated that the deceased died as a result of accident as the kerosene stove exploded. 43. PW-3 has even stated that the deceased died as a result of accident as the kerosene stove exploded. 43. It is argued that in fact the IO has recorded the dying declaration later on taking statement from Neelam (who is wife of brother of victim as she shares the same name as of victim) and Trial Court has misread the evidence as the Trial Court has wrongly taken the statement of Neelam to the statement of victim-Neelam. It is argued that Neelam is sister-in-law of victim-Neelam who as per prosecution was present at the hospital but was never examined by the prosecution and an important right of accused to put up their defence in this regard to her in cross examination is denied. 44. It is submitted that DW-1, Dr. Sachin, who examined the victim at the first instance, has stated that the victim suffered 95% of burn injuries and was not in a position to speak or communicate and Dr. Sudipta who, gave the opinion on the MLC at the first instance on 2.7.2014 that the victim was not in a fit state of making statement and on the next date the opinion was that the victim was in fit condition to make statement, was never examined. Counsel submits that even the Dying Declaration was not attested by any of the said Doctor to prove that statement was either recorded after seeking her opinion or was recorded in her presence. 45. In reply, learned A.G.A. for the State has argued that in the operating notes of the treating Doctor, Dr. Sudipta, on 2.7.2014 at 7.30 PM, she gave opinion that Patient is not fit for making statement as she is not totally conscious, oriented and in sound state of mind. However on the next date i.e. 3.7.2014 at 11.30 AM she gave opinion that Patient is fit for giving statement as she is conscious, oriented and in sound state of mind. It is submitted that only after this opinion was given, PW-4 recorded dying declaration of the victim on the same date. 46. It is next argued that even as per the MLC of the Doctor of District Hospital, Bulandshahr, it is reported that the burn percentage is about 95% and smell of kerosene oil is coming from the body and the patient is reported to be conscious. 47. 46. It is next argued that even as per the MLC of the Doctor of District Hospital, Bulandshahr, it is reported that the burn percentage is about 95% and smell of kerosene oil is coming from the body and the patient is reported to be conscious. 47. Learned A.G.A. has further argued that in the Dying Declaration, the victim has given the details of incident and manner in which she was burnt to death and, therefore, the Dying Declaration is proved in accordance with law. 48. It is submitted that PW-4 had gone to record the statement of the victim as per the order of the Sub Division Magistrate of the area and, therefore, he was duly authorized to record the Dying Declaration. 49. After hearing the counsel for the appellants and upon perusal of the paper book and on re-appreciation of the entire evidence, with the assistance of learned Counsels for the appellants and learned A.G.A. for the State and in view of the decisions in Irfan @ Naka’s Case and Jayamma’s Case (Supra), we find merits in these appeals for the following reasons : A. The three witnesses of facts i.e. Fakira (PW-2/father of the deceased), Sudhir Kumar (PW-3/brother of the deceased) and Virma (PW-7/mother of the deceased) did not support the prosecution version and were declared hostile. All the three witnesses have stated that the accused persons have not killed victim-Neelam for demand of dowry. PW-3 has even stated that the deceased died in an accidental fire due to bursting of kerosene stove. He further stated in his cross examination that his father is the head of the family and his uncle Munesh (PW-1/Informant) is residing separately and marriages of all the sons and daughters were performed by his father Fakira (PW-2). Therefore, there is nothing on record to suggest that the victim was harassed on account of demand of dowry immediately prior to her death. Even PW-1 (informant/real uncle of deceased), in cross examination, has stated that accused persons have not harassed the victim and there was no demand of dowry and he do not know how the victim died. Therefore, there is nothing on record to suggest that the victim was harassed on account of demand of dowry immediately prior to her death. Even PW-1 (informant/real uncle of deceased), in cross examination, has stated that accused persons have not harassed the victim and there was no demand of dowry and he do not know how the victim died. B. Munesh (PW-1/informant) in the complaint (Ex.Ka-1) which is base of the F.I.R. (Ex.Ka-2) has stated that he had gone to the hospital at Bulandshahr where he met the victim and she told that the accused persons by pouring kerosene oil lit the fire because the demand of dowry was not met. The only source of information given in the complaint is that the victim had told PW-1 about this fact. However, DW-1, Dr. Sachin, who first attended the victim in the Government Hospital, Bulandshahr and had prepared the Medico Legal Report has categorically stated that victim-Neelam was having 95% of burn injuries and she did not tell him about the cause of sustaining injuries as she was not in a position to speak. Therefore, the statement of PW-1 that on visiting the hospital, the victim told him about the role of the accused persons is not proved as the Doctor who attended her in the same hospital has stated that she was not in a position to speak. Even in cross examination, PW-1 has not supported the prosecution version and, therefore, no reliance can be placed on the statement of PW1. C. The conviction of the appellants is based on the Dying Declaration which was recorded by PW-4, Ved Prakash Meena, the Executive Magistrate. However, on a careful perusal of the Dying Declaration and the statement of PW-4 on oath, the same cannot be relied upon for the following reasons : (i) PW-4 has admitted that he had gone to the hospital on the oral orders of the Sub District Magistrate Seemapuri and, there is no written order to record the statement. (ii) PW-4 stated that he met ASI Naresh and then recorded the statement of victim, however, the signature of ASI Naresh are not taken on the Dying Declaration. (ii) PW-4 stated that he met ASI Naresh and then recorded the statement of victim, however, the signature of ASI Naresh are not taken on the Dying Declaration. (iii) This witness has even stated that after recording the statement he has handed over the Dying Declaration to ASI Naresh Kumar but not in a sealed cover, though there is endorsement that the same is handed over to ASI Naresh Kumar. Their endorsement is not signed by ASI Naresh Kumar and one of the Investigating Officers i.e. ASI Naresh Kumar (PW-5), Rafal Singh (PW-6) and Jai Prakash Uadhyay (PW-9) have stated that they have received the Dying Declaration from PW-4 after it was recorded by him. (iv) PW-4 further stated that the doctor has given opinion that victim was in fit state of mind to make statement on MLC and, thereafter, he recorded the statement. However, he admitted that no such opinion was taken on the Dying Declaration and the doctor never signed this document to prove that the victim was in a fit mental condition to make statement. (v) PW-4 further stated that he cannot tell the difference between fitness to speak and the stability in fitness to speak. He further stated that only doctor can tell whether the victim was fit mental condition to make statement. (vi) PW-4 did not ask any preliminary questions to the victim to satisfy himself that she was in a fit mental condition to make statement. (vii) PW-4 has also admitted that there were attendants of victim in the ward, however, no signature of any of the attendants as witness was taken on the Dying Declaration. (viii) PW-4 further stated that it took about one hour to record the statement of the victim as it was a long statement running into two pages containing 45 lines and nothing is on record that the victim remained in conscious state of mind throughout as seductive pain killer were given to her as she sustained 90-95% burn injuries. (viii) PW-4 further stated that it took about one hour to record the statement of the victim as it was a long statement running into two pages containing 45 lines and nothing is on record that the victim remained in conscious state of mind throughout as seductive pain killer were given to her as she sustained 90-95% burn injuries. (ix) In the absence of the statement being recorded in presence of doctor, recording of such detailed statements just on the line of allegation contained in the FIR, raises a suspicion as all the accused in their statements under Section 313 Cr.P.C. have stated that, in fact, it was a statement of Neelam, the wife of brother of deceased-Neelam (both have same names), which was recorded by the Investigating Officer and it is not the statement made by the victim and, therefore, it is doubtful if victim has given statement voluntarily. (x) The statement bears left foot impression of Neelam whereas, in the Medico Legal Report prepared by DW-1 Dr. Sachin in District Hospital, Bulanshahr the right foot impression was obtained and it has come in the evidence of this witness that she suffered 90-95% burn injuries and, therefore, in the absence of any witness to the Dying Declaration, the marking of left foot impression also raises suspicion. (xi) From the statement of PW-4-Ved Prakash Meena, it is proved that considering the nature of burn injuries i.e. 90-95%, the victim was not in a position to make deposition especially when it has come in the statement of DW-1, Dr. Sachin who treated the victim at the first instance on 2.7.2014 that she was not in a position to speak due to 90-95% burn injuries. (xii) PW-4 has stated that the doctor has given a fitness certificate in her operating notes on 3.7.2014 that she is fit to give statement. A perusal of Exhibit Ka-2, the operating notes which were proved by an employee of G.T.B. Hospital creates a doubt about it. PW-4 has nowhere given the name of doctor from whom he has sought the opinion. Exhibit Ka-2 refers to the name of Dr. Sudipta whereas PW-10- Alok Kumar, an employee of G.T.B. Hospital has produced the notes by naming one Dr. Swathi and, therefore, it is not proved that which doctor has given the fitness certificate. (xiii) The prosecution has withheld the material witness i.e. Dr. Sudipta or Dr. Exhibit Ka-2 refers to the name of Dr. Sudipta whereas PW-10- Alok Kumar, an employee of G.T.B. Hospital has produced the notes by naming one Dr. Swathi and, therefore, it is not proved that which doctor has given the fitness certificate. (xiii) The prosecution has withheld the material witness i.e. Dr. Sudipta or Dr. Swathi who had treated the victim at the time of admission and subsequently when she was referred to the Burn Ward, the treatment given to her, therefore, the accused-appellants were denied the important right of cross examination of the doctor who had treated the victim (Neelam) in G.T.B. Hospital, to put their defence that the victim was not in a fit position to make statement on account of burn injuries sustained by her. (xiv) Another important witness, Neelam (who share the name of victim Neelam), the Bhabhi i.e. (sister-in-law of the victim) who as per the Investigating Officer was an attendant throughout was also not examined by the prosecution witness and even her statement under Section 161 Cr.P.C. was also not recorded. (xv) The appellants have taken a categoric stands in their statement under Section 131 Cr.P.C. that in fact PW-4 had recorded the statement of this attendant-Neelam and not the victim-Neelam and, therefore, the Investigating Officer did not examine her so that the material questions may not be put to her in cross examination in this regard. D. All the witness of fact have not supported the prosecution version though the marriage of the victim with accused-Raju, as per the prosecution were performed about seven years ago but no child was born by this wedlock and allegation of demand of dowry as stated by PW-1 are not corroborated by PW-2, PW-3 & PW-7. E. PW-1 has stated that there was a dispute between the husband and wife regarding the demand of dowry and some complaint was also given to police however, during investigation no such complaint was given to the Investigating Officer to prove this allegation and thus nothing has come on record to prove it. F. As noticed earlier, PW-1 has given complaint on the basis of alleged information given by the victim after she was admitted in District Hospital, Bulandshahr that accused poured kerosene oil and lit the fire due to non fulfilment of demand of dowry. However, DW-1-Dr. F. As noticed earlier, PW-1 has given complaint on the basis of alleged information given by the victim after she was admitted in District Hospital, Bulandshahr that accused poured kerosene oil and lit the fire due to non fulfilment of demand of dowry. However, DW-1-Dr. Sachin who treated her in District Civil Hospital, Bulandshahr has categorically stated that the victim was not in fit mental condition to speak as she sustained 90-95% burn injuries on entire body. G. As per deposition of three witnesses of fact i.e. PW-2- Fakira-father of deceased Neelam, PW-3 - Sudhir Kumar, brother of deceased Neelam and PW-7- Virma, mother of the deceased Neelam, there was no demand of dowry by the accused immediately before the incident and PW-3, brother of the deceased has even stated that she sustained incidental injury due to bursting of stove. This witness has also stated that PW-1 is his uncle and he is residing separately. Even as per statement of PW-5, Investigating Officer, it has not come on record that he has either recorded the statement of PW-4, Executive Magistrate, who recorded the alleged dying declaration or that the same was handed over to him in a sealed cover. Though, the dying declaration, there was an endorsement that same is handed over to PW-5, Sub Inspector- Naresh but there is no signature on this endorsement by PW-5 as receipt of the same which also raises a suspicion. H. The dying declaration runs in 45 lines and the narration of events is given so accurately that even a witness in normal state of mind is not expected to depose with such precession specially when the PW-4 has stated that he took about one hours in recording the statement. H. Even from the statement of other two witness, PW-6-Rafal Singh Tomar, C.O., second I.O., it has not come that during investigation the dying declaration recorded by PW-4 was made part of the investigation. Similar is the statement of PW-9- Jay Prakash Upadhyay, another Investigating Officer who arrested the accused persons and submit the charge sheet as it is not stated by him that he received the dying declaration from PW-5, S.I.-Naresh. Therefore, dying declaration is doubtful and is not a reliable document and the benefit of doubt has to be given to the accused persons. Therefore, dying declaration is doubtful and is not a reliable document and the benefit of doubt has to be given to the accused persons. I. The trial court has not held the appellant Kamal guilty of offence under Section 498A IPC and ¾ of Dowry Prohibition Act which is alleged in the dying declaration, to conspire with other accused who are the husband and family members of the in-laws of the deceased and, therefore, his conviction under Section 302 of IPC solely on the dying declaration is not sustainable when it is admitted by the prosecution witnesses that he does not belong to the family of husband Raju and his resident of a different village. Thus, the motive against appellant-Kamal is otherwise not proved. 50. In view of above, the impugned judgment of conviction and order of sentence are set aside. The appellant- Raju is in custody since the time of registration of FIR and his custody is more than ten years of actual sentence and twelve years with remission. The other accused were on bail during the trial and after the judgment of conviction dated 10th January, 2020, they are in judicial custody and have undergone total period of custody of about five years and six months actual and more than six years and six months with remission. All the accused appellants have no criminal history. All the accused – appellants namely, Babli, Jaiprakash, Vimla, Raju and Kamal, are acquitted of the charges and they be released forthwith from the judicial custody. 51. All the appeals are accordingly allowed. 52. Record and proceedings be sent back to the Trial Court forthwith. 53. Ms. Muskan Pandey, learned Amicus Curiae be paid the requisite fee by High Court Legal Services Committee.